In their post from last Friday, El-Enany and Keenan had identified a 'political purity in the face of fascism' in Sultany and O'Connell's writing on Miller (the Brexit case). Sultany and O'Connell now respond that the critique is baseless. They insist upon a distinction between law and legalism, and argue for a more nuanced and strategic engagement with law.
“We must practice revolutionary democracy in every aspect of our [movement] . . . Hide nothing from the masses of our people. Tell no lies. Expose lies whenever they are told. Mask no difficulties, mistakes, failures. Claim no easy victories”. – Amilcar Cabral
Academics should welcome the prospect of their peers thoughtfully engaging with their work. It is unfortunate, therefore, that Nadine El-Enany and Sarah Keenan’s article fails to engage with our commentary on the Miller case, despite purporting to do so.
In their rush to score points, El-Enany and Keenan misrepresented our views, as expressed in the specific article they refer to. They set up a straw man that bears no resemblance to our article in order to declare a putative victory. Indeed, their “response” is no response at all, and rhetorical exhortation is no substitute for analytical clarity and correct identification and attribution of the arguments one seeks to criticise. In this brief intervention we seek merely to show that our “critics” have fundamentally missed the point of the article they purport to reply to.
El-Enany and Keenan claim (i) that our article was “concerned to highlight the ‘popular grievance at the base of Brexit’”; (ii) that we “insist that judicial decision-making is anti-democratic”; (iii) that the “upshot” of our critique of judicial power is the “bolstering of executive power”; (iv) and that we ignore the empowering effects of the law for the marginalised. This rendering of our article’s arguments is entirely mistaken, and flies in the face of explicit sentences in our article.
Let us start with point (iv) to make a general point: El-Enany and Keenan completely missed the distinction between “law” and “legalism”. They mistake our critique of legalism to be a critique of using law as such. They also ignore a straightforward paragraph in which we said that we disagree with popular reactions to Miller that deny the relevance of law and rights. The main target of our article on the mainstream legal commentary that followed the Miller ruling is legalism, not whether the marginalised should seek legal protection whenever possible. El-Enany and Keenan’s reply does not mention legalism even once, even though it was central to our article and the argument we developed.
By legalism we mean an approach to the law that separates it from politics. In this approach, or legal consciousness, law is autonomous from socio-political influences and thus legal materials and norms determine the outcome of judicial decision-making. Our challenge to Miller and the legal commentary that followed it highlighted the intertwinement of law and politics. This means that we need to recognize the political context and stakes involved, not to pretend that they are of a technical nature, whether one agrees or disagrees with Miller. If such a recognition is not forthcoming there will be no appreciation of the political and social organizing work needed to address the challenges of the moment. The “upshot” of El-Enany and Keenan’s critique is to ignore legalism, or even embrace it, just because they happen to like the bottom line of this particular ruling. They want to suspend critical judgment against judicial power because they think the “upshot” bolsters executive power.
But is that the “upshot” of what we argued? Let us move to point (iii). Here we would like to extend to our critics the courtesy they did not extend to us by quoting a complete sentence from their article: “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.”
Anyone who actually read our article, the subject of the critique, will know that the first part of the sentence is a false attribution, and the second part of the sentence is an unsubstantiated conclusion. We did not say that a “critical stance requires rejecting judicial power in favour of majoritarian decision-making”. In fact, we said the following: “The forgoing does not suggest that majoritarian decision-making is inherently substantively correct. But the same can be said about judicial decision-making.” Thus, a critical stance may require rejecting either majoritarian decision-making or judicial decision-making. Either way, a critical stance has to acknowledge the intertwinement of law and politics. Our critics are subscribing to a false necessity.
This leads us to point (ii) in order to explain why El-Enany and Keenan are missing the argument entirely. Our argument is not that judicial decision-making is “anti-democratic”. Had our fellow academics taken the time to read the comprehensive theoretical argument at the base of this point (which we linked to in the article on Miller), they would have realized that we do not think that the concept “democracy” delivers that kind of work (i.e. to justify or discredit judicial power in an a priori and generalised manner). Democracy is a contestable concept that conceals or suspends substantive judgment behind what purports to be an institutional question. For instance, when El-Enany and Keenan write that the referendum was undemocratic (as opposed to unjust or unfair or morally objectionable) they are begging the question of the definition of democracy.
The idea that there is a paradox at the heart of constitutional democracies (between majoritarian decision-making and judicial decision-making) is a critique of the post-cold war neo-liberal status quo (Roberto Unger called it “the dictatorship of no alternatives”). It suggests that institutional design should be open to participatory forms rather than settle on the exclusion of the many and concentrate decision-making in the hands of the few.
Bizarrely, in their attempt to reply to us, El-Enany and Keenan repeat points that we had already made as if they were a critique of our position. They write: “Executive government is a far cry from ‘government by the people’.” We concur. We already wrote: “scholars have demonstrated that western constitutional democracies are not really an indirect form of government by the people, but rather a detailed system of governance that avoids government by the people.” The reason for our fellow academics’ failure to acknowledge this point in their reply escapes us. But, clearly, flattening our argument makes it easier for them to “critique” it.
This leads us to the final point (i). El-Enany and Keenan quote half a sentence and then suggest that it was our primary objective in the article. They say that we were “concerned to highlight the ‘popular grievance at the base of Brexit’”. Here is the full sentence: “The legalist posture misses the popular grievances at the base of Brexit. Regardless of its merits, the Brexit referendum expressed a disenchantment with the political establishment and a growing alienation from processes of representation.” Here are the facts: our article included 15 paragraphs. This sentence appears in one paragraph out of 15. Hardly a primary concern. Again, the point here is to say that the law is not autonomous and legal scholars should pay attention to the fundamental social and political issues at stake.
Interestingly, perhaps ironically, in their critique of our article for the lack of “consideration of the position of the most marginalised in society”, El-Enany and Keenan support a legal motion brought by the capitalist tycoon Gina Miller. This is hardly comparable to “the migrant with an insecure status subject to a deportation order” standing before a judge, whose cause the authors claim to celebrate. Again, this shows lack of complexity: the point here is not as simple as a binary schism between the forces of light and the forces of fascism. Is this not the very “political purity” that the authors decry and seek to distance themselves from?
Clearly, this was a missed opportunity. Our fellow academics are attacking an imaginary position they falsely attribute to us. To be sure, there are interesting points in their article, and we agree with some of it and have a different position on others. We have both published on some of these issues and would be delighted if El-Enany and Keenan, or anyone else, were to engage with our actual writings.
Going forward those who consider themselves critical or on the “left”, in the broadest sense of that term, must come up with useful arguments for comprehending and challenging the morbid symptoms of a crisis ridden system that confront us, and in this context, there will be disagreements. It is crucial that such disagreements are contested honestly and vigorously. It is unhelpful to set up a straw man rather than engage with the arguments you disagree with, and churlish to dismiss a position you do not like as mere “political purism”.
As Franz Neumann, who wrote the definitive account of the operation of fascism in an earlier time argued, “far-reaching real consequences can flow from apparently merely theoretical differences”. With many other commentators on that period, such as Herman Heller and Karl Korsch, Neumann lamented the blind faith that liberals and social democrats, political centrists all, placed in the law to protect them from the rise of fascism. It would, indeed, be unfortunate if we were to suspend critical judgment and engagement now, and allow this historical tragedy to be repeated. Amid the current crisis, meaningful critique is more necessary than ever: it is inevitable that we will not all agree, but we should, at least, engage with each other’s arguments, and not the ones we would like to challenge.