Freedom, equality, and the law.

From a work in progress: ‘The Authority of the Boot-maker’ by Mal Content.

The base myths on which the class system rests are those of ‘freedom of choice’, and ‘equality under the law’.

“The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

– Anatole France 1894

Almost all political groupings these days claim to represent freedom and most promote equality. The states they manage are held to account and found wanting in practice – hardly surprising as capitalism won’t work without careful management of human activity, and unequal access to the produce thereof. So what do they, and we, mean by freedom and equality?

Each method of production creates the legal* and political** framework best suited to it, so as Feudalism once gave rise to the Manorial system, capitalism has given us liberal democracy, one adult one vote. Just as you have your few pounds/Euros to spend in the marketplace on your preferred brand of mobile phone or breakfast cereal you’re allowed to choose between a couple of interchangeable management styles. It won’t make any difference, the market will decide, now if instead of a few pounds you had a few billion to invest in the market, you would have the management’s ear.

* If you plan to exploit a particular group, enshrine their oppression in law.

** Where everyone works for the state as in the former U.S.S.R., in effect a giant corporation with a monopoly on production, the workers don’t need a choice of parties, only an administrative ladder to climb.

It is a plank of bourgeois ideology that equality of means and freedom of choice are incompatible. The market is an exchange of commodities* by individuals, whose freedom is defined by liberal democracy. The infrastructure that maintains liberal democracy depends for its survival on the market. Governments are custodians of the market, being their guarantee of the survival of liberal democracy. They can only allow such freedoms as are compatible with the functioning of the market, as determined by bourgeois economics. That market, in turn, requires that such freedoms as liberal democracy allows must compete in the market, as commodities, subject to the relative purchasing power of those who desire them. Therefore the freedom of each individual must remain subject to the purchasing power of that individual. It follows that political democracy precludes economic democracy, and economic freedom negates political freedom. Like a perverse Yin-Yang, the free market and liberal democracy are embedded in each other, grow out of each other, and defeat one another.

*Social labour and its produce.

The producing class had to be freed from all obligations to and rights over the means of production* before they were free to sell their labour on the open market. By the same token, the employing class had to be freed from all responsibility for the producers’ welfare, beyond paying their due wages.

* In the process they were effectively freed from obligation to each other belying their existence as a class. The bourgeoisie knows bloody well that it’s a class and so does everyone else, because it always acts as one.

Thus the two parties to the contract come together of their own free will, as equals. A benign state ensures agreements are adhered to and debts are paid, using a set of laws that apply equally to everyone, and elected representatives run the infrastructure for the benefit of both groups.

Most readers will already appreciate what a load of crap that is but if you’re new to this, a simple thought experiment may help:

Imagine I’m crossing a barren terrain on foot, and come to a small trading post; I’m exhausted and can go no further without food and water so I ask for help to be on my way. The trader offers me a deal; in return for food, water and a bed for the night I must walk back across the desert at dawn and fetch as many such supplies as I can carry from his stores. When I protest the trader is indignant; from the goodness of his heart and for the benefit of others he’s brought provisions to this desolate place at great inconvenience to himself, I can take it or leave it.

I have a choice, either to return whence I came, or press on into the desert and certain death; the law prohibits me from either taking what I need, as it belongs to the trader, or remaining and cluttering up his premises with my corpse. The following day I return with more food and water, it turns out I can carry enough for three days. I am again hungry, thirsty and in need of rest, I will have to make another deal or perish, the choice is mine. The law holds me to my bargain; so I eat, the trader eats, and retains enough surplus to entrap another weary traveller.

Before long there will be many of us making the trip back and forth, too many, the surplus is piling up so our work is less valuable and we have our rations cut. Although we are equals in the eyes of the law the trader insists we treat him with deference and pretend gratitude; he hints darkly that we may have to provide further services. None of us are going anywhere, we make the same journey every day to pay for that first meal, the law makes us totally dependent on someone who gives us nothing, and eats for free.

In this simple metaphor our desert trader’s wealth is limited by the number of travellers he can enslave, and his capacity to store or utilise perishable goods. There is always the possibility one of us will break the law and cut his throat, he might select a few of us to protect him from the others, but he has a serious problem – we’re all in the same position. What he needs is a means to create hierarchy, and accumulate not just wealth, but power, he needs an abstract measure of value*.

* By this I mean a scalar quantity defined without reference to the usefulness, virtue or desirability of any act or thing. The good, the bad and the ugly find equivalence in exchange.

The ‘father of liberalism’ John Locke is credited with the concept of Social Contract, whereby people consent to be governed, giving up part of their liberty in return for a measure of security and utility. He considered that an implied or tacit consent could be assumed when a citizen utilises the products of social labour – by using the roads for example – or acquires property, given of course that property is guaranteed by the state. Locke correctly identified civil society as a mechanism for the protection of property, in which he included one’s own life and labour. He believed the rights of property derived from labour (not necessarily your own) and had no problem with accumulation and the resulting inequality, since the invention of money allowed for the accumulation of value without waste. The Labour Theory of Property proceeds from the idea that since you own your self, you own the products of your labour. Common property – such as unenclosed land or minerals in the ground, is converted into private property by the addition of labour.

Locke expanded this to justify conquest and slavery; he invested heavily in the transatlantic slave trade and co-wrote the constitution of Carolina, which enshrined human chattel slavery in law for the first time. Article 110 stated that “Every freeman of Carolina shall have absolute power and authority over his Negro (sic) slaves, of what opinion or religion soever.” Other articles created hereditary nobility and serfdom, and a hierarchical voting system based on land ownership. Clearly the Social Contract was not construed on equal terms.

Some variant of Locke’s confused liberalism survives to this day. It’s accepted that life isn’t fair, that some of us are born disadvantaged: physically, mentally, socially or materially, yet fairness only requires that we are given the opportunity to play on the same field, by the same rules.

In ‘A Theory of Justice’ (1971), the Philosopher John Rawls postulates fairness in terms of a society of unequals, in which the rules were constructed as if by a hypothetical population who fully understood human affairs but did not yet know what place they would occupy in the pecking order. Of course this has never happened, rules have always been made by people who have already reached the pinnacle of advantage within their society. Nowadays those who define the principles of social justice and energetically sell them to the rest of us, in practice wield executive power over masses of their fellows that would have been unimaginable even to the absolute rulers of former times. Is there a society anywhere in the modern world where you can claim with any conviction to own your self?

Legal freedom is simply a license, granted by the state, to acquire and dispose of property in ways permitted by the state,* this is precisely the right the chattel-slave was denied.

*Notwithstanding the bilge spouted by ‘freemen on the land’ and proponents of ‘lawful rebellion’, this is the only right states grant, and they do so by virtue of wielding sufficient force to withhold it. In almost every case, states claim sovereignty over property within their territories, including the people. Your right to dispose of your property remains at the state’s discretion, and can be overridden by the state’s (the ruling class’) interests, any of it can be expropriated by an act of the executive. All states reserve the right to enforce involuntary servitude on citizens convicted of offence, and many require involuntary military service at the end of their formal education.

Property is the option to restrict access to something, whether or not you have a use for it, and to be indifferent to the needs or wishes of others. It is a barrier: a fence, a lock, a software licence, a copyright, a parking meter. The value of a loaf of bread to the trader is not its capacity to satisfy hunger, but its capacity to put that hunger to the trader’s use. It fulfils its function, not by being eaten, but by sitting on a shelf until it rots or someone bargains for it.

In the Lockean sense that the self is property, it applied to a slave’s own flesh, time, their productive and creative abilities. Since the slave could not own or dispose of property, they could not enter into agreements, make contracts or keep promises, where they were permitted to marry, their families could be divided at their master’s convenience* Although Locke defined the status of slaves, the same principle had always applied. In all states that practiced slavery hitherto, the definition of a ‘free man’ (sic) was in relation to less exalted individuals, the operators of the prevailing modes of production, who were assumed by default to be bonded. Women and children were invariably at someone else’s disposal**. ‘Liberty’ in Roman society meant absolute mastery over your estates – called dominium from dominus, meaning ‘slave-owner’.

* As in the poor-houses and prisons.

** And remain so over much of the world.

Roman law evolved into feudalism; the mediaeval state didn’t grant rights so much as it recognised power, so property rights were indistinguishable from political power. Manorial liberty or ‘lordship’ included the right to set up your own gallows and conduct executions; it was obtained and maintained by force of arms. During the mercantile era, where the means of production was a captive person, their bondage granted freedom to the owner or their proxy to indulge every depravity, nothing that could feasibly be done to a human body was out of bounds, and contemporary accounts confirm this.

Locke has cast a long shadow; the line between legal slavery and legal freedom is in the subtle distinction between power based on a right to take life, and that deriving from the capacity to deny access to the necessities of life. The advocates of chattel slavery understood this all along, perhaps even better than their opponents:

“Mr. President, if we recognize no law as obligatory, and no government as legitimate, which authorizes involuntary servitude, we shall be forced to consign the world to anarchy; for no government has yet existed, which did not recognize and enforce involuntary servitude for other causes than crime. To destroy that, we must destroy all inequality in property; for as long as these differences exist, there will be an involuntary servitude of man to man. … Your socialist is the true abolitionist, and only he fully understands his mission.”

– Virginia Senator Robert M.T. Hunter, March 25, 1850

My italics.

The modern state maintains social relations by putting the means of production, and thus all the products of social labour, behind the barrier of private property. All citizens have the same rights to acquire and dispose of property, but having the legal right to do something does not give you the means to do it. The state decrees that the barrier may only be accessed by exchanging its currency for the property-right, and that its subjects must compete for this social access by excluding others. The state would be in serious trouble if people stopped competing for its currency. The money economy is not concerned, as economists often claim, with allocation of scarce resources, but with the regulation of human activity by limiting access. The ‘laws of supply and demand’ may be illustrated with extreme examples such as sapphires or Stradivarius violins*, but capitalists manipulate scarcity and abundance to maximise their profit.

*Only one of these examples has limited supply. Supply and demand do not simply determine price, because price also determines supply and demand. It may have been scientific curiosity that prompted 19th century chemist Edmond Frémy to synthesise rubies from molten alumina but they were commercially available by the 1880s. Today high quality sapphire is manufactured using the flame fusion process devised by his colleague Auguste Verneuil. The optical and electronics industries have created ever-expanding applications for such materials stimulating mass production. On the other hand, most gem-quality diamonds mined today go straight back into the ground, heavily guarded, to keep the price up.

So workers and capitalists alike undercut each other, so that money comes to them rather than to someone else, then they outbid each other for things they want access to. Those who have the most money use their purchasing power to raise the barrier – e.g. when a district becomes ‘fashionable’ the rich will exclude the poor by paying over the odds for housing, then for goods and services. A capitalist’s investment in the latest production technology is a weapon to drive other capitalists out of the game. The reduction of all human relations to relative (purchasing) power means that no one can ever have enough, the barrier can never be too high for the richest, or too low for the poorest. The compulsion to inequality is endless. As abstract property, money is both the means of access and exclusion*; as abstract power, it is the ‘liberty’ of former times, freedom that can only be exercised by denying it to someone else.

*Tony Blair, on his election as the first Labour Prime Minister for 18 years, was immediately summoned to the other side of the globe to suck Rupert Murdoch’s cock, whereas a vagrant in the street will struggle to get a fair hearing from a passer-by.

So money turns freedom into a commodity. Without the means to realise it, freedom remains an abstraction, and many depravities can still be indulged for a price, or as agent of the state that claims sovereignty over your self. Freedom of movement, of association, of speech, access to the law, all these are for sale. A great deal of social unrest does not take place simply because the angriest people can’t afford to move around, have dependents to care for or are just too exhausted to fight. I’ve worked in factories where workers were not allowed to speak between breaks; and seen them visibly shrivel when some vindictive manager enters the room, no one speaks their mind to these people: “got kids to feed, you know”. The bourgeoisie are as dependent on us as babies at the breast, but would have it the other way round, and berate us for our dependency. Those who have direct access to the means of production are free, the rest get told what to do, seldom politely.

“The chief act of coercion by which the state exploits labour, … is by restricting, on behalf of a ruling class, the labouring classes’ access to the means of production. By setting up such barriers, the ruling class is able to charge tribute in the form of unpaid labour, for allowing access on its own terms.”

– Kevin A. Carson: ‘Studies in Mutualist Political Economy’.

So the producing class having nothing to sell but themselves – their liberty – by the hour, are compensated with a portion of the total social product than they create, in the form of currency, just sufficient to reproduce the energy they have expended. The remainder lends the capitalist sufficient purchasing power to further bar access to the means of production and purchase ever more of the producers’ freedom. The pound in your pocket is not a reward for what you did yesterday, but a guarantee you will do it again tomorrow, as it represents a tiny fraction of the social product appropriated by the capitalist class.

“… it is evident that the laws of appropriation or of private property, … become by their own inner and inexorable dialectic changed into their very opposite. The exchange of equivalents, the original operation with which we started, has now become turned round in such a way that there is only an apparent exchange. This is owing to the fact, first, that the capital which is exchanged for labour-power is itself but a portion of the product of others‘ labour appropriated without an equivalent; and, secondly, that this capital must not only be replaced by its producer, but replaced together with an added surplus. …

… At first the rights of property seemed to us to be based on a man‘s own labour. At least, some such assumption was necessary since only commodity-owners with equal rights confronted each other, and the sole means by which a man (sic) could become possessed of the commodities of others, was by alienating his own commodities; and these could be replaced by labour alone. Now, however, property turns out to be the right, on the part of the capitalist, to appropriate the unpaid labour of others or its product, and to be the impossibility, on the part of the labourer, of appropriating his own product. The separation of property from labour has become the necessary consequence of a law that apparently originated in their identity.”

– Karl Marx: ‘Capital: A Critique of Political Economy’, Volume 1.

The inheritance of property perpetuates Locke’s hereditary nobility and serfdom. In July 2017 a mere five individuals* controlled as much of the world’s wealth as the poorest three and a half billion, with 1% of the population owning more than half of everything that is owned. It’s hard to ascribe meaning to wealth on this scale, but suffice it to say there are more slaves alive today in Europe, North America and the developing world, than at any time in human history.

* When I started writing this it was about two hundred.

“Massive poverty and obscene inequality are such terrible scourges of our times — times in which the world boasts breathtaking advances in science, technology, industry and wealth accumulation — that they have to rank alongside slavery and apartheid as social evils,”

– Nelson Mandela.

Half the world starves not because there is any shortage of food or resources, but because it lacks purchasing power, and it is maintained in that condition by the bloated purchasing power of the miniscule fraction of humanity that controls the economy. Property is not merely theft, it is slavery and murder.

So-called human rights, which supposedly limit the freedom of the state’s agents and proxies, are not really rights at all, just things we do anyway: live, speak, move or associate, which nevertheless the state can prevent us from doing at its discretion. This is the only reason the state mentions them, in granting the right to do this or say that, it reminds us it possesses the means to withhold such rights. In theory they apply to everyone but in practice the ability to enforce them will depend on your position in the pecking order. All are equal before the law, but some are before the law more than others.

‘Equal rights’ or anti-discrimination laws serve the state in three ways:

  • Cooling unrest and heading off insurrectionary tendencies in super-exploited sections of the population. Rights are granted in response to violent disorder, civil disobedience, labour stoppage or other interference in production.
  • Lending it political legitimacy in terms of the prevailing (capitalist) mode of production, the opening premise of this chapter. States will sometimes reform themselves to fall into line with other states, to attract foreign capital and stimulate commerce.
  • Confirming its dominance within its territory. Rights can only be had with domination; in subjecting everyone to it equally, the state establishes its monopoly on direct coercion and the primacy of its professed values. It recognises only such categories of people as suit its purpose: citizens and non-citizens, adults and minors, police and public, prisoners and screws, employers and employees, landlords and tenants, mentally competent and incompetent, judges and defendants, directors and shareholders, doctors and patients, wives and husbands. The law, before which all are equal, grants each category a degree of liberty in respect of the others. The state allows no competing values, such as sexuality, religion or race*. It discarded these when they interfered with the prevailing mode of production.

* That’s not to say that its proxies, having internalised the prejudices on which the bourgeois state was founded, do not continue to apply them when acting under its authority. This doesn’t bother the state much, as long as the primacy of its values is not challenged.

With Western interests now under threat from the ultra-conservative strand of Islam they cultivated during the Cold War, freedom of religion is becoming highly conditional – on demonstrating acceptance of the primacy of the state’s professed values.

States that were founded on racism forbid discrimination on grounds of race, thereby maintaining this political concept as an objective category – hedging their bets, maybe?

If you find this cynical consider the function of the state’s legal system – to maintain a monopoly on violence within its territory. To this end it creates a platform for commerce:

 

  • Against which it can borrow money and levy taxes to fund its infrastructure and defence.
  • Which regulates the activity of its citizens so that they are nearly all occupied in prescribed tasks.

The well-being or happiness of any individual citizen is of interest to the state only insofar as it serves these goals, and that applies to all states whether they present themselves as capitalist or socialist, liberal or authoritarian. Rights that forbid abuse of power serve to legitimise the exercise of power. That isn’t to deny that human rights and equality legislation save lives, just to emphasise that they are only a temporary remedy – as illustrated by the resurgence of racism and homophobia in Eastern Europe and the U.S.

With the dissolution of the British Empire in the mid 20th Century, its former colonies (also called Dominions) now independent were incorporated into the British Commonwealth of Nations formally declared as “free and equal” by the London Declaration in April 1949. The British Nationality Act of 1948 created the status of ‘Citizen of the United Kingdom and Colonies’, which gave more than a quarter of the population of the planet equal rights to live and work in the territory of the former imperial power. Technically as ‘British subjects’, they had always had this right, but never the means to do so, but as global travel was becoming cheaper and easier, it was a mere fourteen years before the British state went back on its word and passed the Commonwealth Immigrants Act 1962. This, and subsequent immigration legislation, linked an individual’s right to enter the U.K. to the anticipated exchange-value of their labour-power.

In our colloquial usage the concept of liberty remains ambiguous. We speak of ‘diabolical liberty’, a self-described ‘libertarian’ could be an anarchist-communist or a selfish right-wing sociopath. It is the most repressive states that take the greatest liberties with the bodies of their subjects. We lament the flouting of human rights, but legal guarantees are criticised as a charter for criminals.

Suppose I have the right to own a gun, a right that could only be withheld by those with more or better guns. What prevents me from shooting someone? Only my personal morality and empathy – or maybe other folk similarly armed, if they’re likely to take an interest. Whenever states proposed disarming their subjects to prevent them killing each other, we would argue firstly that the decision to take life was a bigger one than the decision to defy the state*, and second that an individual bent on mass murder could just run amok** with an axe, or mount the pavement in a vehicle. The response was that no-one would have the stomach to be so mired in gore, but the gun makes it easy. Well actually no, it doesn’t, but firearms were seen to be somehow less messy, maybe because it looks that way on the telly.

* The state could never admit such a thing.

** In the Malay world, someone who felt disgraced or dishonoured could redeem themselves by dying in battle. If there wasn’t a battle handy, they would draw their weapon in public, cry “Amok!” and take on all comers until slain by the mob. Muslim Filipinos combined this ancient custom with Islamic Jihad, in Juramentado against occupying Spanish, American and Japanese forces. The aim was to kill as many infidels as possible, whose ghosts would be enslaved and would have to wait on the warrior in the afterlife. After much god-bothering, the body was tightly bandaged to hold the organs in place and slow blood loss, lastly their bollocks were bound with rawhide, so there was no turning back …

All that’s come back to bite us in the arse, the modern self-styled jihadi is desperate and reckless enough to do any of that. Motivated by the most authoritarian and prescriptive ideologies, they grant themselves absolute liberty to do what others cannot contemplate.

This has been an argument that meaningful liberty and equality can only be achieved collectively, defined by consensus. I don’t believe in rights, I believe in boundaries between individuals and agreed codes of conduct within a group. When I choose to abstain from behaviour harmful to others, I’m not giving up my own freedom, just renouncing my claim on anyone else’s.

“We are convinced that liberty without socialism is privilege and injustice; and that socialism without liberty is slavery and brutality.”

– Mikhail Bakunin: ‘Federalism, Socialism, Anti-Theologism’ September 1867.

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