For some time we have been witnessing the rise of racist nationalism and fascism in many parts of the world. In Europe and North America, significant elements of both the Brexit and Trump campaigns propagated explicitly racist ideals, albeit to varying degrees. Whether you understand Brexit and Trump as having triumphed despite or because of the racism that dominated both campaigns, the reality is that these victories have legitimised white supremacy in alarming ways. Despite the increasing rise in racist violence and rhetoric, some on the Left are reluctant to acknowledge the severity of this political development, in part because of a preference to perceive the Brexit and Trump victories as anti-establishment movements/the end of neoliberalism/expressions of the legitimate grievances of ‘the white working class’/a more honest face to an already racist and violent liberal order.
As the racist horrors of the EU referendum unfolded, from widespread fear-mongering linking EU migration to ISIS, to the brutal murder of pro-Remain MP Jo Cox by a white supremacist a week before the vote, some Leftists continued to advocate for a leave vote. In the wake of the Leave victory, many Lexiters encouraged people to unite and work together in what they see as a moment of opportunity for dramatic change. A few months later, despite Trump’s campaign having been endorsed by the Ku Klux Klan, and his victory unleashing a wave of violence by emboldened and gleeful white supremacists, some on the Left cautiously welcomed his election as a ‘shakeup’ of the status quo, a development preferable to a Clinton presidency because of its potential to force a new political mobilisation on the Left. No doubt these positions are well-meaning, driven by a concern to end the structural violence of neoliberal capitalism and a commitment to radically transforming societies through a fairer distribution of material resources. But there are dangers to prioritising political ideals and goals at whatever cost. If the rise of racist nationalism and fascism are to be countered, political purity is a luxury the Left cannot afford. This is especially so in relation to law, which is often the last chance of protection for the most vulnerable in society.
In a recent commentary on the High Court judgment in the case of Miller v Secretary of State for Exiting the European Union, Paul O’Connell and Nimer Sultany, concerned to highlight the ‘popular grievance at the base of Brexit’, put forward an argument on ‘what it means to adopt a critical stance vis-à-vis constitutional developments and judgments’. The case was decided in favour of Miller, the High Court ruling that Theresa May, as head of the executive branch of government, cannot trigger Article 50 of the Lisbon Treaty, the process for exiting the EU, without the consent of Parliament. The judgment was met with unbridled rage from some corners, with the the litigant, Gina Miller bombarded with rape and death threats, and the High Court judges described as ‘enemies of the people’ on the front page of The Daily Mail. O’Connell and Sultany argue that legal scholars who have defended the judgment on the basis that it concerned a purely legal matter are failing to be sufficiently critical. For them, taking a critical stance on the Miller decision requires acknowledging that it was political and not merely a matter of legal interpretation. They insist that judicial decision-making is anti-democratic, and particularly so in this instance because, as they see it, the judgment goes against a ‘majoritarian choice’ and hinders the implementation of the Brexit vote, a result born out of a ‘participatory’ exercise in democracy. O’Connell and Sultany’s position begs the question of who is represented in the purportedly participatory democratic process of referenda? The EU referendum was explicitly exclusive of those who would be made most vulnerable to harm and insecurity by its result. In particular, EU migrants and people with insecure immigration statuses were not permitted to vote. The referendum debate was eclipsed by the topic of migration, with the Brexit campaign unrelenting in its scapegoating of migrants, calling on voters to ‘take back control of our borders‘. Since the referendum, racist hate crime is up by 16% across the country and peaked at a 58% increase in the week following the vote. Just weeks after the referendum, Arkadiusz Jóźwik was beaten to death in Essex, having reportedly been attacked for speaking Polish in the street. While referenda may give majorities a vote, they can be dangerous, undemocratic exercises entailing people voting on whether their neighbours should be deported.
Along with the undemocratic nature of the EU referendum, the danger of O’Connell and Sultany’s critique of judicial power is its upshot: the bolstering of executive power. In a structurally racist, sexist and elitist society, of course any exercise of judicial power is necessarily political. But to argue for the enhancement of executive power as an alternative, or even to entertain it as a byproduct of limiting judicial power, is dangerous. Executive government is a far cry from ‘government by the people’. It is a privilege to be in a position to criticise judicial power, but for people at the hard end of executive decisions, judicial review can be all that stands between them and the brute force of state power. What of the migrant with an insecure status subject to a deportation order by the Home Secretary, her only hope a judicial review of that decision whereby a judge might stay the deportation? Judicial review is also the final avenue for prisoners appealing parole decisions and pensioners challenging reductions in their rent assistance. To argue that a critical stance requires a rejection of judicial power in favour of majoritarian decision-making is dangerous if the upshot is the strengthening of executive power, and betrays an absence of consideration of the position of the most marginalised in society.
In an imperfect world, one imbued with structures which expose racialised people, women and non-binary people to violence and premature death, a critical praxis must have survival of the most vulnerable at the core of its strategy. Those who are privileged enough to not be at risk of new levels of violence whatever the outcome of a majoritarian process, must adopt the position that ensures the least violence for the most vulnerable. Critical race feminists have much to teach us in this regard. The failure or unwillingness of some on the Left to meaningfully engage with critical race feminist theory and strategy when this work is urgently needed is not only dangerous, but reveals a profound lack of understanding of the structural production and effects of racism. Critical scholars and activists have put much intellectual effort into developing structural understandings of class, but many have failed to do the same for race. This failure not only replicates and reproduces structures which make invisible the work of feminist and race scholars, but has also facilitated the accommodation of left, ‘critical’ political positions that bolster rather than challenge the reality of a burgeoning far-right movement which is endangering the lives of racialised minorities.
Having to fight for survival in a structurally violent world requires being strategic in relation to law. Recalling the words of Mari Matsuda is helpful here:
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.” There are times to stand in the courtroom and say, “this is a nation of laws, laws recognising fundamental values of rights, equality and personhood.” Sometimes, as Angela Davis did, there is a need to make both speeches in one day.1
Acknowledging and vigilantly imbibing this in ones politics and strategy is what it means to engage with the work of critical race feminists, not by occasionally citing Audre Lorde. Some responses to Brexit and Trump have made it apparent that the Left has its own bespoke ivory dwellings. These are places of privilege from which arguments and strategies are espoused that bear the marks of ignorance of the lived experiences of the most disenfranchised in society. Calls for solidarity are premature without a rebuilding of trust on the Left. Those who have been willing to prioritise political ideals and goals over the immanent physical safety of racialised people cannot then call for union and solidarity, not without first accepting they were wrong to do so. Trust can only emerge through a collective and unwavering commitment to a strategy which has survival for the most vulnerable in our societies at its core. Without this commitment, urgently needed solidarity cannot emerge. Without solidarity, there can be no lasting, transformative, progressive political change.
Nadine El-Enany and Sarah Keenan are Lecturers in Law, Birkbeck Law School, University of London