The Tyranny of Solidarity

On the phenomenon of 'tyrannical law'

Solidarity is heavily contextual, action-dependent, and co-constituted through praxis, and as a result is fluid and difficult to capture in fixed legal definitions.

-Alexandra Delano Alonso, Violeta Moreno-Lax, and Jaya Ramji-Nogales

Tyranny, for Leo Strauss, becomes ‘morally possible’ in the gap between law and justice. What does this mean? It is simply that the tyrant’s appeal to authority is based on an understanding of law as insufficient to realise an idealised end (or, even better, as a hindrance in achieving desired objectives). The tyrant declares law to be an unnecessary constraint that is best abandoned in the interests of effectiveness. True justice, justice with a capital ‘J’, is better served by direct, extra-legal means.

Another way of putting this is that one can define a free society as one which is comfortable with there being a gap between law and justice. A free society accepts that an exhaustive and unending effort to root out each and every injustice that occurs could not take place without destroying the very freedom it prizes. Such a society is ruled by law, then, in the sense that it has a structure of norms which govern conduct lightly. People know what they are permitted, or not permitted, to do. But otherwise they can live their lives as they see fit. This might bring about all manner of nebulous ‘harms’, or injustices, but if those harms have not been identified and made unlawful in advance, then the free society accepts them as the necessary consequences of freedom.

Our societies are becoming more tyrannical, then, as they insist more strongly that each and every harm, each and every injustice, be identified and remedied by the State. The result of this is a destabilisation of law itself, as government turns to much more direct ways to achieve desired results. This is disguised by the fact that, in the modern world, there is a profound squeamishness about any suggestion that a government would not be subject to ‘the rule of law’. But make no mistake - our era is increasingly characterised by a suspicion of autonomous law and a desire to repurpose it as a political tool. Indeed, it might seem proper to describe the coming into existence of such a thing as tyrannical law, meaning law which simply serves as an instrument deployed by those who rule to impose duties on the population, and which does not constrain those rulers at all.

A useful illustration of all of this comes from the field of open borders activism and the way in which law itself - understood as a set of rules governing immigration - is problematised in that context.

A recent terminological innovation in this field, which has not quite filtered through into public awareness, but soon will, is the appearance of the term ‘solidarity’. People who are in favour of open borders know that saying they want open borders is a non-starter in terms of garnering public support. So, instead, they are increasingly presenting themselves as merely wanting to show ‘solidarity’ with migrants by campaigning for unrestricted freedom of movement. Hence, for example, legal rules which make it a criminal offence to facilitate illegal migration (like the EU’s so-called ‘Facilitator’s Package’, which requires EU Member States to make it a crime to intentionally assist unauthorised entry or transit into, or residence in, the EU, for financial gain) are frequently cast as ‘criminalising solidarity’; activists who agitate for open borders are now describing themselves as ‘solidarians’ [sic] who are ‘initiating change and generating futures based in justice and belonging’; and so on.

The basic aim is always the same: to destabilise the concept of borders, and thus the nation state itself, as a way of ushering in a new form of political structure - whatever that might be. But saying as much might scare people off. ‘Solidarity’, on the other hand, is a hooray word. Once invoked, it becomes difficult to express opposition without looking like one is being petty, narrow-minded and divisive. If you are not for ‘solidarity’ you are against it, and what kind of backwards, benighted bigot would be against something so evidently praiseworthy and good?

Solidarity and law have an uneasy relationship, as is laid bare in a collection of academic fluff pieces (halfway between blog posts and essays) brought together in a recent symposium under the auspices of the prestigious American Journal of International Law, titled ‘Transdisciplinary Approaches to Migrant Solidarity in Theory, Law, and Praxis’. Regular readers may remember that I wrote a piece about a similar symposium, held about a similar topic, last year, in which I described the contents of the different contributions as a way of indicating just how blinkered and tin-eared academia had become with respect to this subject. As I put it in that article:

The world is crying out for academics to do two things. The first of these is to grapple properly with what sovereignty really means in the 21st century as the old assumptions regarding sovereign independence and equality fray - and not least with respect to the question of borders and the so-called ‘right to exclude’. And the second is to understand and properly theorise the relationship between democracy and the nation state as that relationship finds itself increasingly subject to challenge. The idea that international legal scholars are getting together to insinuate that opposition to open borders and defence of national democracy is racist not only runs counter to, but actively undermines those objectives. This is - I choose my words carefully - not good enough.

The papers contributed to this more recent symposium are similarly narrow-minded and deranged. But this time around I would like to focus in particular on a piece co-authored by two professors and a certain Sean Binder, a criminal barrister working in London who became a legend in his own lunch hour after having spent some time in a Greek prison in 2018, when he was arrested on suspicion of various offences related to facilitation of illegal migration. (He was apparently participating in voluntary search and rescue work in the Aegean.)

This article, on ‘The Ambivalence of Solidarity and the Language of Law’, helps bring the issue of tyrannical law into a focus in a particularly useful way. This is because it frames the problem for us, quite neatly and concisely, right at the outset. ‘Can international law further solidarity with migrants?’ it begins, after a short introduction. ‘Though international treaties have obligated states to offer protection to many migrants over time,’ it continues, ‘the law is increasingly ineffectual in the face of contemporary anti-migrant rhetoric and practice.’ And, it goes on, ‘Migrants cannot reliably turn to international law to protect their interests without a radical shift in the politics of migration. Solidarity [however] might be capable of altering the politics that undermine legal protections.’

There are two things to be said about this, and which you will have noticed. The first is the presentation of law as insufficient in realising what justice (purportedly) dictates. It is not ‘reliable’; it is ‘ineffectual’. In other words, law no doubt imposes duties on States to protect refugees and asylum-seekers (chiefly in the form of the 1951 Convention Relating to the Status of Refugees). But that cannot in itself bring about the real change that is needed, which can only arise through a ‘radical shift in the politics of migration’.

And the second thing, following on from this, is that law is posterior to politics. Note that, crucially, what could make law ‘effectual’ is not merely changing the rules. Rather, what is needed is ‘solidarity’, which ‘might be capable of altering the politics’. Law, in other words, is not conceived as possessing an autonomous existence. It is simply the servant or handmaid of government. Ultimately, since it is so ‘ineffectual’, it should really be transcended through appeal to extra-legal phenomena. Rather than legal change, activists need to short-circuit politics and thereby eliminate ‘anti-migrant rhetoric and practice’. And law, the implication goes, will follow - or else can be safely ignored - since it is in the end simply a tool to be used or discarded as desired.

This reasoning is made more explicit over the next two pages. ‘International law,’ we are told, ‘[only] offers a fixed set of protections that do not address the core needs of many migrants, such as territorial security.’ And migrants’ ability to ‘access’ rights is ‘limited practically by their immigration status, language abilities, socioeconomic status, and other barriers’. What is needed, then, is something much more flexible, responsive, and pervasive than fusty old rules:

[S]olidarity asks that human beings recognize the obligations owed to each other by simple virtue of being human. The scope of solidarity with migrants is not predetermined; the obligations owed depend on the need of the migrant with whom another human sits in solidarity. This capaciousness enables a solidarity approach to foreground the perspective of migrants more effectively than human rights law, offering a flexible toolkit that prioritizes migrant preferences rather than a pre-set menu of options. This shift in mindset could present a path forward that is both more morally compelling, in that it prioritizes humility and humanity, and more practically effective, because it operates through the internalization of social norms.

Law should in other words be treated with suspicion, since it does not effectively ‘foreground the perspective of migrants’ or ‘prioritise humility and humanity’ in a ‘morally compelling’ fashion. Solidarity, on the other hand, is different - it means enjoining people to ‘internalise [new] social norms’ such that they ‘prioritise migrant preferences’ in an open-ended, unrestricted way. What migrants need defines the duty the state (and, by implication, society) has towards them. And those duties are fulfilled not by legal rules but by a ‘flexible toolkit’ that ‘prioritises [their] preferences’.

This means that, according to the authors, there is a ‘vast chasm’ between law and solidarity - the two operate on ‘different planes’. Law offers mere ‘legal legitimacy’ based on ‘individualised enforcement against the state’. Thus, for example, each and every individual migrant has certain rights that he or she holds by dint of the state’s legal commitments, and can enforce those rights in the courts to gain certain protections, at least in principle. But solidarity offers, rather, ‘sociological legitimacy’, since it relies on ‘norm internalisation throughout society’. It is not individualistic, but ‘group-oriented’. And it therefore promises something transformative; whereas law simply extends individual rights of protection, solidarity rather suggests a radically new way of conceptualising not just matters of immigration and asylum but the very organisation of society itself. One does not get what one has a legal right to. Rather, one gets one’s ‘core needs’, expressed as ‘preferences’.

This - and note how coy our authors have been so far about what exactly ‘solidarity’ really means in practice - of course leads us to the bottom of things. Because, it turns out, ‘solidarity’ is in fact just a fancy way of referring to the reorganisation of society along redistributive lines. It is, we are told, ‘the expression of a shared struggle across boundaries of class, race, gender, culture and nationality, aiming to dismantle the hierarchies of power that exist across those boundaries’. It seeks to ‘engage with people in ways that “transgress power hierarchies”.’ And its ‘promise’ is in its ‘recognition of our shared humanity, eschewing hierarchical distinctions based on legal status, such as “citizen” or “migrant”.’

It is, in short, an ‘emancipatory’ or even revolutionary project - one which is bent on ‘eschewing’ the very concept of citizenship, and which aims to tear down ‘hierarchies’ even between those living in one country versus another. All must be made equal, regardless of the location of birth - and, the implication seems to follow, the way to achieve this is simply through having no border restrictions whatsoever. Equality, sorry, the ‘dismantling of hierarchies of power’, can be achieved through having open borders. It is unfair that somebody born in Chad has worse life chances on average than somebody born in Britain. But this can be remedied by simply eliminating the ‘hierarchical’ distinction between the two, and allowing the former to come to Britain for his ‘core needs’ and ‘preferences’ to be met.

The cod-Marxian flavour of all of this is self-evident: ‘from each according to his ability (to pay); to each according to his (core) needs (and preferences).’ And it displays a familiar Marxist cynicism about law. In classical, honest-to-goodness Marxist legal theory, communism when actualised would bring about the disappearance of law (along with the State) altogether because there would be no need for it. A communist society is a society of abundance. And in a society of abundance there is no need for property, which is the edifice upon which bourgeois law rests. Moreover, since a communist society is a classless one, conflict would no longer take place. There would be no need therefore for law to regulate social interactions - and it could therefore ‘wither away’ just like the State itself.

In practice, of course, most communist societies found that law was actually rather helpful after all, since it allowed the State to organise and command society as it saw fit. (The exception, Democratic Kampuchea, lasted just about long enough to launch and perpetrate a genocide before it imploded.) ‘Actually existing’ Marxism, as it were, therefore relies very heavily on the trappings of a legal system. The law it comes up with is biased, arbitrary, unpredictable, unfair, opaque, and applied haphazardly or mendaciously, since it is purely instrumental. But it is not disappear. It is, rather, re-conceived as simply an arm of politics. It is turned from a pre-political commitment to particular rules, into a mere instrument - ideally to be transcended or ignored, but utilised effectively as the next best thing.

The ‘solidarians’, inheritors of Marxist thought at the end of a long series of hand-me-downs from previous owners, have imbibed something of this. They do not really like law and they would rather it just went away - their ideal is to live in a brotherhood of ‘human beings [who] recognize the obligations owed to each other by simple virtue of being human’. They are, inchoately, that is, possessed by a communist ideal of abundance where it is possible and desirable for anybody in the world to go anywhere else and have his or her ‘core needs’ met through simply expressing ‘preferences’, and through the people around him in his new home offering ‘solidarity’ (because, in a society of abundance, why would one not?).

The solidarians rightly recognise that this could only be achieved by forcing people to ‘internalise’ new ‘norms’ - the rallying cry of Marxists everywhere. And they know that this could not be done through law itself; law in its own right does not change hearts and minds. But they are unwilling to let law go entirely, since it is through the instrumentalisation of law as command that social objectives of whatever kind can be met. It is, as it were, illegal to disobey the law. So by making it the law for people to ‘recognize the obligations owed to each other by simple virtue of being human’, one at least moves in the right direction towards one’s ultimate goal.

This is a fundamentally tyrannical impulse, as Marxian impulses always are, because it precisely presupposes the elimination of property and the dissolution of legal barriers to State action - the two things that are most necessary in binding the tyrant and the population together. It imagines that the property of society is simply owned by the State to dispense with as it sees fit - to distribute to meet the ‘core needs’ of whoever turns up in the jurisdiction, and to operationalise in the interests of a kind of enforced charity. And it imagines law not as a hedge or constraint on what the State can achieve, but a tool which it can use (or ignore) in order to realise its ends. The result of this, if realised, would be a direct, one-to-one relationship between State and society, in which the former exists to arrange the latter, and the latter is subsumed into the will of the former. This is done in the name of benevolence - Lenin, let us remind ourselves, ‘loved mankind’ for all that he looked on it through a ‘cloud of hatred’ - but its basic rationale ends in anything but benign abundance.

The notion of tyrannical law sounds like an oxymoron, then, but it is in fact a highly apt way to describe this peculiar desire to both transcend and instrumentalise law all at the same time. This is a trend evident throughout our governing arrangements, and is not limited to the field of immigration, of course: it is in fact characteristic of the way our institutions now operate across the piece. In this respect at least the solidarians are at the forefront of social change, for all that it might be evident that a long-overdue political backlash against open borders is beginning to emerge.