The limits of the law

Socialist lawyer Lois JC reviews David Renton’s new book Against the Law, considering the limitations of legal approaches to social change and what a left-wing ‘dejuridification’ might look like.

Judges in ornate robes
Photo: FruitMonkey, Wikimedia Commons, Creative Commons, cropped

Upon qualifying as a solicitor, I have often found myself frustrated – frustrated by the often disempowering impact of legal cases, and frustrated by lawyers who treat the law as the only mechanism for resolving disputes. I have been keen to have conversations about the limits of the law with other socialists and those working in the legal sector, and so I was excited to learn that David Renton had written Against The Law, a book arguing that we need less law (and, hopefully, fewer lawyers). 

His account starts with describing how the neoliberal economic project (which was dominant in Britain from 1979 – 2016) led to an expansion of the law. This may be instinctively counter-intuitive as many understand neoliberal policies as ones which seek to reduce state influence and remove regulation. However, Renton explains that law has accumulated and grown since 1979. While neoliberalism sold a story that the state had grown too large and needed to be shrunk, in practice it only launched an attack on the aspects of state power which distributed wealth away from the rich, e.g. welfare and social housing. To do this without facing too much resistance from working class people, it was necessary to create a complex and growing web of statutes and regulations, often seeming to increase individual rights yet in reality transferring wealth from the state to the private sector. Renton uses case studies to illustrate this point, including Thatcher’s Right to Buy policy. Brought in by the Housing Act 1980, it gave council tenants an option to purchase their home at a discount of up to 60% of market value. It may appear that the individual’s legal rights have increased, but the impact of this policy was to privatise a significant part of the welfare state. 

Neoliberal politicians put a high value on market relations and free competition, which has a tendency to deepen inequality, so governments have looked to authoritarian policies to temper the discontent this creates. For example, in 1998 the New Labour government brought in Anti-Social Behaviour Orders (ASBOs), which made certain types of behaviour a civil wrong, carrying the same level of punishments as some crimes. Renton demonstrates clearly throughout this section of the book that the neoliberal orthodoxy of unregulated free market competition requires assistance from governments and the creation of new laws to prop it up, to the detriment of the power of the working class. 

The book then goes on to look at populism, and how populist politicians have pitted ‘legal experts’ against ‘democracy/the people’. He argues that since 2016, right wing populism has challenged the neoliberal political project.  He argues that neoliberalism focuses on the demands of business, while populists promote capitalist interests through the proxy causes of race and nation. I feel it is worth adding that many of the political positions taken by populists since 2016 were shaped by political conversations that were started (or continued) by neoliberal politicians – New Labour continued and furthered draconian action to restrict the rights of asylum seekers, and Thatcher notoriously referred to the country being ‘swamped’ by people of different cultures. Particularly in the Conservative tradition, it is difficult to separate populism from neoliberal politics – something which is perhaps missing from this chapter.

Renton turns next to Brexit, which was justified on the basis of the claim that the EU was a source of excessive law and regulation. The Brexit project could only win by persuading a majority that by leaving the EU they were ‘taking control of their lives’. This concept of trying to ‘take away’ unnecessary laws, is known as ‘dejuridification’ – which, Renton argues, is desirable, but only in circumstances led by the oppressed and not led by populists, as Brexit was.  

The book then concludes by looking at what dejuridification would look like if it was a strategy of left wing movements, and why these movements which operate in opposition to the state should withdraw from using litigation as a central tactic. He starts by looking at campaigns which are over-dependent on the law. Protesters have prioritised legal challenges as the best terrain to achieve change – such as attempts to challenge Brexit by Gina Miller, who took the government to court claiming that the way Brexit was being handled was unconstitutional. Other times the law is forced on movements who have no choice but to engage – such as when protesters are arrested and must defend themselves. In these latter cases, engaging with the law to fight convictions is a crucial part of left wing strategy; whereas when we are on the offensive, the left’s choice to use the law should be interrogated as it may not be the most effective or empowering way to win.

A good example used in the book of the difficulties of legal approaches was around the protests in March 2021 after the kidnap and murder of Sarah Everard by a Metropolitan Police officer. A vigil was organised by a number of groups, the most visible of which was Reclaim These Streets, who decided to cancel the vigil after they were told by police officers that all protests under the Covid-19 lockdown were unlawful. Reclaim These Streets went before the courts to challenge this decision. Their lawyers secured an oral concession from the police that some protests did remain lawful, but they did not receive confirmation that this vigil in particular would be lawful. Despite Reclaim These Streets choosing not to reinstate the vigil, there was a very strong turnout, spurred on by more radical groups such as Sisters Uncut arguing the demo should go ahead anyway – resulting in a crowd of perhaps around 2000 or 3000 people at its peak. The police arrived, manhandling and arresting protestors.

Renton goes on to discuss the ‘rupture strategy’, used by lawyer Jacques Vergès when defending Algerian independence fighters during the Algerian War of Independence. Vergès challenged the legitimacy of the French colonial courts, stating that by even hearing the case in that court, they had already expressed an opinion on the main issue in the trial – namely whether the courts had any right to pass sentence on Algerian resisters. Even if the substance of a legal case is seemingly radical, it can affirm authority of the state, but Vergès seems to offer us a way out of that. He is trying to take a sideways look at the law – rather than using the law to make internal critiques, you use it to create political theatre. However, this strategy is one where you’re probably going to lose and should be used when one is more interested in spreading ideas than winning the case – it needs to be something that isn’t led by lawyers, but by an organisation or movement behind the legal case. The rupture strategy also can’t be the only thing you do. Sometimes, you just need to win a court case i.e. to stop someone being deported or locked up. The American lawyer Mari Matsuda said:

There are times to stand outside the courtroom door and say ‘this procedure  is a farce, the legal system is corrupt, justice will never prevail in this land as long as privilege rules  in the courtroom.’ And there are times to stand inside the courtroom and say ‘this is a nation of laws,  laws recognizing fundamental values of rights, equality and personhood.’ Sometimes, as Angela Davis did, there is a need to make both speeches in one day.

This brings Renton to the question of reform and revolution. He provides a helpful overview of Marx and Engels’ theories of the law and the state which developed as a result of their work on class relations under capitalism. The capitalist state is the product of a specific society at a particular stage of development – the state is necessary to keep the class antagonisms between capital and labour in check. Seeking reforms to that state means seeking to change the law to create enforceable rights. After a successful working class revolution, the state as we know and understand it would ‘wither away’, the revolution being just one step in a longer transition. Often revolutionary goals are counterposed to reformist objectives – revolutionary objectives seek to adopt a stance of hostility to the state and reject legal change that would leave capitalist social relations intact. However, most revolutionaries on a day to day basis will be involved in a series of reformist activities – and if they are not, they will struggle to build political confidence, and capital needs to suffer defeats in the interim to make revolution achievable. Action is to be judged on whether it makes revolutionary change more likely. Renton goes on to discuss environmental demands in the context of reform and revolution, and argues that 40 years of juridification of environmental justice struggles has failed to slow the harm to the planet, and that we need to overthrow a system of environmental destruction in order to stop that harm. 

So practically, how would we dejuridify society from a left wing perspective? Renton argues that this would be a process – first, campaigners need to be more selective in using the law when instead we could build victories through mass movements. Second, we need to demand a reduction and simplification of the law. Thirdly, we need popular control of courts –  rather than only judges presiding over a court case, we could have institutions that include ordinary people listening and making decisions, as employment tribunals were originally intended.

This book provides a really compelling, clear and accessible argument as to precisely why those who fight for social change should turn their focus away from the courtroom and towards collective power. It is vital that we are involved in building and supporting grassroots movements and workers struggle, and not just through lawyers, but as workers and activists. This book is an important step to encourage left wing lawyers to talk about the limits of legal practice. It is also a book to demystify the law to those who don’t work in it, and to convince campaigners that the law isn’t a magic solution to our problems.


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