09:37, March 16 47 0 theguardian.com

2020-03-16 09:37:03
Why the right's new strongmen are winning everywhere

In Franz Kafka’s short story Before the Law, a man turns up at the gates of the law. He thinks that since the law is for everyone, he has a right to gain entrance, but meets a powerful gatekeeper who tells the man he must fight him in order to get in. The man prefers not to challenge the gatekeeper. He sits patiently outside the law, spending everything he has to win him over, making polite requests to be accepted but always failing to obtain permission.

Kafka’s story is a good metaphor for thinking about the relation between law and politics. The gates to the law are in theory always open. To be inside the law means to be recognised, represented and protected by the authorities that support and enforce it. Inclusion in the law, however, also requires fighting its gatekeepers, and doing so in the awareness that there are no guarantees of success. Law, in other words, depends on politics.

Historically, the progressive left’s position before the law has taken many forms including fighting its guardians, persuading them to compromise and identifying with them. But regardless of the differences of strategy, there was a shared awareness among both socialist and social-democratic movements and parties that gaining access to rights required an active struggle to challenge the status quo with a positive vision for social change. Democracy was not allegiance to a body of settled norms; it was the name of a process. With the help of that process, previously excluded groups of people - workers, women, people of colour - became subjects with rights. There was little inherently desirable or despicable about the rule of law, it was all down to whom the laws represented, and how.

The struggle is not over, but progressives are in retreat. In the ongoing crisis of liberal democracy, only the new right seems to understand the relation between law and politics, often interpreting it in sinister ways. The right, ever more coherent in its ideology and disciplined in its organisation, is increasingly willing to challenge the guardians of the law through a relentless assault on the institutions on which the law relies to be enforced: the courts, the civil service, the press, multilateral institutions. Witness the recent resignation of Sir Philip Rutnam, citing the involvement of the home secretary, Priti Patel, in a “vicious and orchestrated briefing campaign” against him and his colleagues. Or the revelations of Dominic Cummings’s former plans for restructuring the BBC to turn it into the British equivalent of Fox News. Or the tirade of the recently appointed attorney general Suella Braverman against the Human Rights Act, and her remarks about taking power back from the courts.

This is not only happening in Britain. If anything, the advance of the rightwing executive in Britain is still in its baby steps. All around the world, from Poland and Hungary to the US, from Brazil to India, the right’s assault on the rule of law, the related undermining of civil servants, judges and civil society activists, its censoring of the press, are all part of a campaign to exert the executive over all other branches of the state. Its ultimate aim is to turn the law into an instrument of rightwing politics, to disempower those who would still see it as a vehicle of social emancipation. What seemed a few years ago like isolated cases of attacks on minority rights, as with Viktor Orbán’s campaign to restrict NGOs’ ability to assist with asylum claims or the ongoing segregation of Roma people, are now going mainstream. Think about the dramatic rise in the assassinations of social activists – particularly black and indigenous people – in the months following the election of Jair Bolsonaro as Brazil’s president. Or the brutal violence to which members of Muslim communities have been subjected in India, following Narendra Modi’s divisive amendments of citizenship laws.

The right’s offensive on the rule of law is not surprising. Attacking the constitution, mocking abstract human rights, discrediting universal citizenship as little more than a dangerous illusion, are familiar tropes of traditional conservative thinking: from Edmund Burke’s critique of the French revolution, to Joseph De Maistre’s hostility to constitutionalism, to Carl Schmitt’s celebration of the power of the executive to suspend legal norms. The conservative answer to the contradictions of modern societies has always been to invoke a mythical past of cultural homogeneity, and unflinching respect for the authority of tradition.

In contrast, the left is failing. It is failing because the mainstream left has either forgotten or failed to communicate the lessons the new right has learned from it: it has abandoned the critique of capitalism, the language of class, the need for political education. It has also abandoned all efforts at international coordination with regard to strategy, means and goals. It has turned liberal parliamentary democracy into an end in itself, while losing all nuance of what the state is for, and why we need the law.

This is not surprising. The left is plural and divided, not just on whom to fight, but also over what, and how. On the face of these divisions, it is natural to find common ground in the protection from assault of existing laws and institutions. It is even more understandable when one has helped to shape these institutions, attempting to make them more inclusive over the decades. It is easier to celebrate individual paladins of the law, such as Lady Hale or Gina Miller, than to create the collective political force required to challenge the liberal consensus.

The right has managed to both reappropriate its tradition and renew itself by displacing its own crumbling centre. Reluctant to do the same, the left is losing. It is losing because it has divorced politics from law. Righteous outrage is no substitute for political action. If people think all politicians are corrupt, they are not going to miss them on the Today programme. If laws are widely seen as a tool in the hands of self-serving elites, nobody is going to feel sorry when judges are called traitors, or sympathise with bullied civil servants. The assault on legality will continue to have legitimacy.

To win, we must not passively defend the rule of law, but actively change how we do politics. The challenge lies in connecting the law – an abstract, seemingly eternal body of rules – to the realm of politics, to show which rules are worth changing and which are worth fighting for.

By the end of Kafka’s story, the man who seeks entrance to the law has become a friend of the gatekeeper. As his death nears, he wonders what would have happened if he had tried to fight. When he is drawing his last breath, the guardian leaves, and the gates of the law are permanently shut. Will the left escape his fate? There is hope, but only just.

Lea Ypi is a professor in political theory at the London School of Economics

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