The Courtroom and the Street: Notes on Activist Encounters With the Law

Editorial Committee

Stepping out of a Toronto courthouse last April, Montreal-based activist Jaggi Singh addressed the media about his decision to plead guilty to “counselling to commit mischief” during Toronto’s anti-G20 protests in June 2010. Nearly a year after being arrested and eventually charged with publicly encouraging people during a press conference to tear down the $5 million G20 security fence, Singh remained resolute. “My only regret,” he said, “is that we didn’t succeed at tearing down that fence.” Going one step further, Singh called the court’s very legitimacy into question. In his estimation, activists’ strategic considerations should be based on their own deliberative processes and not on the state’s determination of what is or isn’t illegal at any given moment.                               

“It’s not in the courtrooms where we decide what’s appropriate or not. It’s in our communities where we decide those things, tactically and strategically.”

After ten months of legal battles, during which Singh and his co-accused stared down conspiracy charges and were subjected to house arrest, non-association conditions, and time in custody awaiting bail hearings, these public comments affirmed the activists’ resilience.

In exchange for his guilty plea, the Crown prosecutor dropped Singh’s more significant conspiracy charge and guaranteed that the bargain wouldn’t be used against other anti-G20 defendants. Singh explained in a personal statement published on the Toronto Community Mobilization Network’s website that his plea extended from his desire to return to organizing work unhindered by the distraction of a long-term legal battle: “By pleading guilty to counseling to commit mischief, I can openly state that the fence deserved to come down, and that the G20 deserved to be confronted.”

“I’ll pay a price for having said so openly, but I am ready to assume that responsibility. I assume that responsibility knowing that I have amazing and deep support from an engaged community of social justice organizers and activists in Quebec, Canada and beyond… By pleading guilty now, I am ending this legal matter, relatively speaking, on my own terms and timetable, and I’m looking forward to returning to the streets and protests of Montreal shortly.”

With these comments, Singh advanced a clear perspective about how activists should relate to the law. The state’s determination of what is and isn’t permissible shouldn’t determine the scope of our actions. And, since we fight to create a world that’s necessarily at odds with the present configuration of power, there will inevitably be moments when our actions defy the law. This is as it should be, and radicals must make decisions not on the basis of what’s legal but, rather, on the basis of what’s most strategic from the perspective of struggle.

Such a perspective is appealing. Nevertheless, Singh’s comments contain an important lacuna that deserves further consideration. If – as Singh suggests – strategic decisions should be made not on the basis of the law but, instead, on the basis of what communities themselves determine to be strategically useful, and if this determination contains the possibility that communities may be placed in opposition to the law, and if the law continues to maintain its power to apprehend and judge (as, currently, it most certainly does), then how will communities determine the strategic utility of their encounters with the law itself? Since the law remains an important feature of the terrain of struggle, it’s necessary for it to be among those things we consider when devising our strategy; it can’t be dismissed out of turn on the basis that it’s outside the purview of community self determination.

It’s therefore crucial that we understand what the law is and – equally important – what a “community” must become in order to effectively displace it.

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In Exalted Subjects, Sunera Thobani recounts the process by which Canada emerged through the codification of laws. Challenging the multicultural myth that the country owed its character to the contributions of “three founding nations,” Thobani exposes the colonial exclusion and exceptionalism underpinning Canadian law. Drawing heavily on the work of Achille Mbembe and Walter Benjamin, she recounts the entwined emergence of law and sovereign power as they developed through the phases of “founding violence,” “authorizing authority,” and “maintaining sovereignty.” For Thobani, “the very concept of Aboriginal rights, of Aboriginal title, presupposes the existence of a sovereign power, alien and external to First Nations, with the power to determine the nature, the form and most importantly, the extent of the rights of Aboriginal peoples” (40). In this formulation, the precursor to law is sovereign power – a force capable of determining (rather than merely asserting) norms and exceptions within a given territory. In concert with its acts of territorial conquest, the nascent Canadian state began codifying and formalizing its sovereignty in legislation like the Indian Act.

These laws sought to rule over every aspect of Aboriginal life, creating a maze – what Frantz Fanon, writing in a different but parallel context, called a world “strewn with prohibitions” – that had no equivalent among settlers. The objective was to manage the population; laws determining status (and, hence, available forms of political belonging) were based on the settler sovereign’s assessment of bloodlines, skin colour, adoption, marriage, and lifestyle. Meanwhile, patriarchy was imposed on Aboriginal women through legal means and enforced through cultural assimilation. As Thobani recounts, the Indian Act “made the status and rights of Native women within their communities directly dependent upon their relationships with men.” In her estimation, the law “was driven primarily by the goal of eliminating Native populations” (49).

Through decades of struggle, Aboriginals have won important changes to laws pertaining to voting and treaty negotiations. Nevertheless, ongoing instances of legal oppression cannot be considered anomalous since, as Thobani points out, the “Canadian legal system is a regime of racial power” (54). Even if – from this day forward – all land claims were ruled in favour of Aboriginal claimants, the situation would remain objectively colonial, since the judgment itself would be an affirmation of Canada’s legally enshrined sovereignty. Breaking this impasse requires that – at a decisive moment – the struggle for self-determination move beyond the confines of existing laws to become an open struggle for sovereignty itself.

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After institutionalizing its territorial conquest, Canada’s emergent bourgeoisie began the process of legally subordinating its working class. In Canadian common law, the contract between a worker and an employer is conceived as a “free association” of mutual beneficiaries, in which the employer receives labour and the worker receives a wage. In this way, a relationship between different classes is transformed to appear as though it were a private contract between individuals. By deliberately occluding power inequalities, contract law not only provided the capitalist class with a legal means of extracting an economic surplus from the direct producers, but also enabled capitalists to criminalize forms of class organization capable of altering this relationship.

Throughout the nineteenth century, legal restrictions on workers’ activity grew significantly; nevertheless, on a day-to-day basis, workplace struggles and worker-employer relationships remained important when determining wages and job conditions. And though the law gradually came to encapsulate almost every aspect of working-class activity – including where and in what form disobedience might occur – workers quickly discovered that making the law itself an object of struggle could be a useful strategic act. Using direct action to force the state to change the law, they could then struggle to force employers to abide by new legal constraints.

Collective bargaining was legalized in Canada with passage of the Trades Union Act of 1872. In exchange for legal recognition, however, unions found themselves operating within increasingly restricted boundaries. While the everyday organizing of Canadian workers was no longer routinely considered criminal, it could still be subjected to suffocating legal proceedings. Following the historic labour battles of the 1930s and 1940s, the post-war compromise instituted a new framework for collective bargaining. Class antagonism was channelled into a well-oiled, manageable mechanism of negotiations, contracts, and grievance procedures. Combined with the relative prosperity that some sections of the working class experienced during the post-war boom, the legal compartmentalization of labour disputes blunted class struggle and produced an upwardly mobile union bureaucracy that management relied upon to help repress working-class resentment.

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Responses to these new conditions were far from uniform. For workers excluded from the “compromise,” class struggle carried on much as it had before. In Quebec, urbanization and economic prosperity – along with the death in 1959 of Premier Maurice Duplessis, whose reign had been Quebec’s grand noirceur – all had an emboldening effect. The middle-class leadership of the Quebecois national independence movement took up many of the slogans popularized by the workers’ movement that preceded it. By 1970, the October Crisis brought the independence movement into direct conflict with the Canadian state. At this point, the entire Quebecois nation became subjected to occupation by the Canadian army. The exceptional powers that Prime Minister Pierre Trudeau extended to the police and military through the War Measures Act further radicalized the population. At this moment, the connection between sovereign power and the law became explicit; legal norms, rights, and entitlements were contingent upon the sovereign state and could always be revoked by sovereign decision. Recognizing the profound consequences that such a development had for working class struggles, fiery labour leader Michel Chartrand was among those who took up the defence of the Front de libération du Québec (FLQ).

In 1971, Chartrand helped form the Common Front, which ended decades of competition between the Quebec Federation of Labour (QFL) and the Confederation of National Trade Unions (CNTU) – rival Quebec unions – and united public-sector workers against the provincial Liberal government, who was also their employer. The FLQ attracted support from significant portions of the Quebec working class. Rank-and-file pressure even pushed collaborationist labour leaders to issue defiant proclamations. By May 1972, approximately 300,000 workers were participating in a Quebec-wide general strike and ignoring back-to-work injunctions. In response, the government jailed the “big three” leaders of the Common Front’s main union federations, and inadvertently pushed many Quebecois rank-and-file workers further toward insurrection. In many cases, these workers’ actions were spontaneous and did not receive authorization from the union leadership. In addition to occupying factories, they took over 22 media outlets, where they continued production without management, prevented anti-union newspapers from publishing, and broadcast the strike message to remote communities. In Chibougamou, working-class women marched on their husbands’ workplaces and called them out of the mines. Some small industrial towns even ejected their mayors. Knowing that they were massively outnumbered and lacking in public support, the police did not intervene.

By seizing the machinery of production and communication, the Quebecois working class established its own structure of social organization and actively contested the dominance of the state’s law, courts, and police. It was a situation of dual power, but it did not last. From jail, the “big three” enjoined the workers to return to their bosses – and, eventually, they did. The emergent contest of sovereignties was folded back into the existing framework of lawful contract negotiations.

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What are we to learn from these stories? As activists, we do our best to think through legal risks when planning direct actions; however, we rarely talk about the law-as-such. Still less are we able to easily reconcile our healthy contempt for the law with the significant legal claims underlying many contemporary struggles – including Indigenous land claims struggles, which are almost universally celebrated. And while we may resolve the matter superficially by imagining the law to be one tool among many, this brings us no closer to understanding what kind of tool it is – and what must be done to take possession of it before abolishing it once and for all.

Today’s activists thus exist in a kind of indeterminate zone. We want to escape state control, but for strategic reasons we want the state itself to continue recognizing us as one of its own (entitled to the legal rights it bestows) even while we’re struggling; we get irritated by the ritualized legal preoccupations underlying the trade union movement but ignore the fact that consideration of laws (especially those concerning property and assault) frequently underscore our deliberations too. Because of these contradictions, we are often reluctant to talk about the law directly; it feels like ceding too much to constituted power. But failing to talk – not about particular laws but about the law-as-such – means overlooking a host of important strategic questions. When we talk about overthrowing the state, with what shall we replace the current legal system? When we conduct experiments in community autonomy, how will we address the horizontal violence that led Hobbes to his Leviathan? And even more immediately, we can ask: if our enemies use the legal system as a weapon to subordinate the whole world to their purview, how might we cause that weapon to backfire?

Writing in 1920, Hungarian communist philosopher Georg Lukács argued that, though the law’s power was indisputably bound to institutions like police, prisons, and courts, its stability also relied upon psychological factors.1 People thus submit to the law (even though, as Lukács points out, they do not necessarily approve of it) because they experience it as an all-encapsulating “natural force.” For this reason, foregrounding the law’s empirical existence becomes a necessary task for those who would undermine its “legal validity.” For Lukács, this process was so significant that he could conceive it as being analogous to “the revolutionary process itself” (259).

Nevertheless, because of the law’s suprahistorical character, Lukács found that revolutionaries often envisioned outlaw status as a precondition to undermining the status quo. Seduced by what Lukács called a “romanticism of illegality,” these revolutionaries not only underestimated the power of the capitalist state, they also ran the risk of reaffirming the “natural” and suprahistorical conception of the law itself. Urging his comrades to overcome these romantic excesses, Lukács argued that, “by surrounding illegal means and methods of struggle with a certain aura, by conferring upon them a special, revolutionary ‘authenticity,’ one endows the existing state with a certain legal validity, with a more than just empirical existence.”

In other words, when illegality is itself posited as the objective, the power of the state to define what is and isn’t illegal is reaffirmed. In contrast, by developing a clear understanding of the law’s “empirical existence” (its social and historical conditions of possibility), Lukács argued that the revolutionary movement might “create a healthy foundation for both its legal and illegal tactics” (263).

To be sure, the reasons that activists sometimes feel compelled to break the law are understandable. Under conditions of relative social powerlessness, simple defiance can do a lot to restore our sense of self worth. And even when the value of these actions remains strategically debatable (as it often does), the impulse to undermine the state’s paternalism is full of potential. Just as the renunciation of religious belief can lead to the realization that human experience is – in fact – the concrete model for our conception of God, disavowal of the law’s all-seeing spectral presence can lead to a confrontation with its conditions of possibility. Even acts of petty rebellion convey the longing for a different society. The challenge is to help this longing find its true object, and then to strategize accordingly.

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During the bourgeois revolution in France, fraternity – the community of brothers – was posited as the self-evident antithesis to divinely ordained sovereign power. In this vision, the Law of the Father is usurped by the community of sons, who constitute themselves as equals through an act of regicide. Of course, bourgeois declarations of equality were not all they were cracked up to be. The horizontal ideal that challenged the vertical hierarchy (in which King Louis XVI conveniently declared himself closest to God) did not prevent new hierarchies from emerging. Indeed, the inconsistent application of the revolution’s guiding principles was a factor in the emergence of modern social movements, which began to exploit the contradiction between professed ideal and actual circumstance as early as 1791.2 Since the advent of the “new social movements” in the 1960s, this contradiction’s resolution has often been envisioned in terms of creating spaces in the interstices where professed ideal and actual circumstance can coincide.

It’s significant that, in this regard, the recent occupations of the 99 percent – the indignant shut out from political representation and economic opportunity – re-enact important aspects of the bourgeois revolution in germinal form. As a mode of organizing, the occupation cannot help but call to mind the efforts of the Third Estate (the urban bourgeoisie, the emergent working class, and the peasantry) who, when shut out of meetings of the Estates General on June 20, 1789, convened in a tennis court at Versailles and solemnly agreed “not to separate, and to reassemble wherever circumstances require, until the constitution of the kingdom is established.”

Like their historical predecessors, today’s occupiers represent a cross-class alliance of people disaffected by social exclusion, which – in this case – has been brought on by the current economic crisis of capitalism. And, like their Third Estate counterparts, they occupy a contradictory position vis-à-vis the law and constituted power. On one hand, they propose that – as representatives of the 99 percent – they ought to determine the content of social relations by “being the change” right here in the present. On the other hand, recognition that the 1 percent continue to be socially dominant has led many to realize that, since the prefigurative experiment – the so-called “war on apathy” – will not be enough on its own, they must pressure the state to act in their interests (by enforcing a maximum wage, calling a moratorium on foreclosures, etc.). These contradictions find practical expression in the movement’s relationship to the law, where endorsements of the illegal occupation of space coincide with the belief that the cops at demonstrations are themselves part of the 99 percent.

        
Jaques-Louis David,
The Tennis Court Oath (1789)
         Fifth Business,
OccupyTO General Assembly (2011)
 

Teetering on the point where the ideal of fraternity and the reality of state paternalism intersect, the Occupy Together movement encapsulates the contradictory dimensions of community-based movement strategies that aim to change social relations before constituting a force capable of contesting – and then usurping – sovereign power. For, while the Tennis Court Oath became an important rallying point for a new constitutional sensibility, the ancien regime was swept aside not through the democratic elaboration of principles but by revolutionary Jacobin terror.

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In explaining his guilty plea, Singh recounted his urge to return to community organizing. Rather than getting tied up in legal proceedings, he chose to end matters on his “own terms” in order to once again be able to make political contributions on the ground. This decision is a strategic one and – without going into the details of the case – it’s impossible to evaluate it here. What does remain important to consider, however, is how Singh’s account might be read as suggesting that activists must choose between legal battles or community organizing. What such an impression elides, however, is the fact that legal battles can themselves play an important role in advancing community struggles.

To be sure, this is not always the case. In The Wretched of the Earth, Frantz Fanon pointed out that anti-colonial struggles often lost steam when their slogans became preoccupied with the release of jailed leaders. But this is not the only possible outcome. On August 11, 1931 Tim Buck of the Communist Party of Canada was arrested along with eight of his comrades and charged with being “party to a seditious conspiracy.” At the time, the criminal code stipulated that the charge could be brought against anyone endorsing the overthrow of the state. Buck pleaded “not guilty” at his trial and argued that, because the overthrow of the capitalist state by the working class was an historic inevitability, it did not require advocacy. Moreover, the Communist Party didn’t invent violence; it just prepared for it.
Both the trial and Buck’s subsequent incarceration became major points of public interest. They helped to grow the Communist Party despite the fact that the party itself had been deemed an “illegal organization.” Within the public at large, condemnations of state violations of civil liberties increased dramatically.

Buck’s bail was set at $25,000 while that of his co-accused was set at $20,000 – massive sums even by today’s standards. In response, the Canadian Labor Defense League began to raise funds. Although the organization had initially been set up to fight evictions and provide immediate legal support, the trial enabled it to expand and extend its mandate. Meanwhile, dozens of people who were not previously part of the communist movement mortgaged their homes to raise bail for the accused. Although the trial was initiated at the behest of the state, and though it happened wholly within its purview, the response of the Communist Party and the Canadian Labour Defense League leveraged the situation and helped to broaden public disaffection with both the state and its laws. In effect, by participating in the legal process, they helped people to join an illegal political organization.

After Buck was found guilty, public sympathy for the Communist Party grew. On appeal the judge ruled that, although Buck was not guilty of seditious conspiracy, the ruling that he was guilty of belonging to an illegal organization (Criminal Code, Section 98a) must stand. In response, the Canadian Labor Defense League organized a petition against 98a and more than 483,000 people signed it. Repeal of the law became an election issue in 1935 and helped lead to the defeat of Conservative Prime Minister R.B. Bennett. In 1936, the law under which Buck had been convicted was repealed.

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Following the Queen’s Park riot of June 15, 2000, Ontario Coalition Against Poverty (OCAP) activist John Clarke was brought to trial on charges of counselling to participate in a riot” and “counselling to assault police.” In a throwback to Buck’s case in 1931, police intelligence described OCAP as a “criminal organization” during the trial. Like Singh, Clarke’s “counselling” charge arose from a speech he gave on the lawn of Queen’s Park. During his trial, Clarke admitted wholeheartedly that he and other OCAP members had “planned, counselled and participated in a militant demonstration.” However, he argued, if that demonstration “became a riot, it was turned into one by an arrogant Government and an incompetent and provocative police force.”

Throughout the trial, OCAP received significant support from activists, trade unions, and others. A little over a year after the Queen’s Park riot, the organization helped to spearhead a mass mobilization in opposition to provincial cutbacks to social services. On October 16, 2001, activists disrupted Toronto’s financial district and briefly occupied the intersection at Bay and King, the beating heart of Canadian financial capital. Although the court cases arising from June 15 were sometimes costly in both economic and psychological terms, they nevertheless helped to mobilize broader layers of activists and community members to support OCAP’s anti-poverty mission and its unique style of confrontational street tactics. In the end, the charges of “participating in a riot” that had been laid against Clarke’s co-accused – Gaetan Heroux and Stefan Pilipa – were dropped after the jury conceded that it could not decide whether the event had, in fact, been a riot. As a result of the prosecution’s mishandling of evidence, Clarke’s charges were dropped shortly thereafter.

Charges that could lead to jail time don’t always stick and activists are better off fighting the rap. In their analysis of the legal cases arising from the Green Scare, CrimethInc found that “cooperating with the government is never in a defendant’s best interest.” Moreover, “if every arrestee understood the difference between what the state threatens and what it can actually do, far fewer would give up without a fight.” To be sure, asserting innocence (and thus reasserting the law’s legitimacy) is highly contradictory. Nevertheless, during the Green Scare, activists who relied on the state to improve their legal circumstance – by cutting deals, admitting guilt, or snitching on their former comrades – on the whole received longer sentences than those who fought to be found innocent.

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In periods when social discontent has not yet become open confrontation, “calls to arms” are more likely to result in rapid imprisonment than in fundamental transformations of the status quo. Under conditions such as these, the romance of illegality (and the hyperbolic statements of sovereign contestation that accompany it) are likely to strike many of those we hope to include amongst our base as ridiculous. If mass consciousness – let alone bourgeois law – could be altered by talk or even by a propaganda of the deed, our task would have been finished long ago. Until we marshal the power to determine the law’s content and application, proclaiming its illegitimacy will simply be an article of faith shared by our small, initiated, circles.

To move beyond this impasse, it’s useful to consider the politics and logic of the demonstration since – in its various iterations – the demonstration illuminates the various challenges confronted by those determined to contest the sovereignty of the state. A brief consideration of turn-of-the-century anti-summit convergences, the anti-war rallies of the Bush era, and the “Arab Spring” of 2011 reveals that social transformation arises not from fetishizing either illegality or legality but from amassing and coordinating a force capable of contesting sovereignty directly.Composed overwhelmingly of self-identified activists and revolutionaries, anti-globalization demonstrations were notable for their enthusiastic attempts to prefigure a counter-power through institutions like the spokescouncil and the people’s summit. They were also comparatively large and, as a result of their occasional use of illegal tactics, often succeeded in making their point; nevertheless, despite their occasional victories, trade summits were more regularly disrupted by the inability of delegates from competing nations to make their interests coincide than they were by the so-called summit hoppers.

The mobilizations against the war in Iraq drew millions of the uninitiated and became the largest protest movement in world history. Nevertheless, in large part due to the willingness of organizers to abide by legal constraints, these massive demonstrations failed to prevent a single bomb from falling. Had these demonstrations been used as a springboard to organize arms production workers and appeal to soldiers, participants might have managed to splinter the war machine from within. In 2011, these tactics were adopted by the people of Tunisia and Egypt and helped them to topple the regimes that oppressed them. Demonstrations in public squares became organizing meetings that dispatched envoys – electronic and otherwise – to others who had not yet converged in the squares. In the end, some of these envoys reached people upon whom the regimes directly depended, including prosecutors, police, and most importantly, the armed forces. When these key levers of state power refused to repress the people in the street, the situation changed dramatically.

At its logical conclusion, a demonstration thus becomes a demonstration of our capacity to exert – and wield – the power of sovereign assertion. It is the precondition to any new legal (or post-legal) order.

As appealing as community organizing sounds, and as important as it often is, we must concede that – in its current form – “community” is not a force capable of sovereign contestation. For this very reason, we must admit that the law does structure our movements. It forces us to mobilize, to extend solidarity to defendants, to organize jail solidarity demonstrations, to provide rides, and to raise funds for legal fees for lawyers to navigate a justice system designed to be opaque to the uninitiated. However, these actions are not antithetical to building community or cultivating our capacity to wield a power counter to law; often, they can be their precondition. Recognizing that the law is a tool of the state doesn’t mean we can’t use our encounters with it to our own benefit. And simply disavowing it is unlikely to change it in any significant way.

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Notes

1 Georg Lukács, “Legality and Illegality,” History and Class Consciousness, Studies in Marxist Dialectics (Cambridge: MIT Press, 1971), 256-271.
2 Charles Tilly reports that, in this year, some 300,000 British families participated in the boycott of sugar grown with slave labour in an effort to back up their demands for abolition (2004, 33).