Mike Phipps reviews Against the law: Why Justice requires Fewer Laws and a Smaller State, by David Renton, published by Repeater

Every year 14,000 pages of new legislation are created, double the volume of 40 years ago. The 2010-15 Coalition government alone created 1,785 criminal offences. Social justice barrister David Renton believes a fairer society cannot be built unless we have fewer laws.

While neoliberal governments claim to dismantle the state, their record is usually restrictive. In practice, only that part of the state that redistributes wealth away from the rich – the welfare state – is downsized. Often the repressive apparatus is strengthened to deal with the consequences of the increased inequality and social tensions that neoliberalism fosters.

In extreme cases, radical free market economic experiments have been accompanied by military dictatorship (Chile), highly authoritarian regimes (Russia), or imperial occupation (Iraq). In short, the problem with the free market, as was observed in the Thatcher era, is that it takes so many police to make it work.

In a field Renton knows well, the main sourcebook for employment law has grown more than fivefold in the last 40 years – all while its sections on health and safety and union rules have been greatly cut down. A similar over-elaboration of housing law has had an effect of throwing tenants’ rights into uncertainty.

Likewise the government’s Immigration Rules have grown from 80 pages in 1994 to over 1,000 today – an “impenetrable jungle”, according to one senior judge. And that’s without examining the UK tax code, which at 10 million words is the longest in the world. Renton’s answer is that the left must embrace dejuridification: a society with fewer laws.

The rationale is clear: the complexity of the law is an obstacle to democracy. Four-fifths of employees don’t know if they are entitled to the minimum wage or what rights they enjoy as tenants.   Too much law also closes off other routes of achieving change. Does anyone really believe that the impending climate catastrophe, for example, can be averted as a result of legislation alone?

Renton identifies a fundamental shift in UK politics from neoliberalism to populism after the vote to leave the EU. I’m not so sure the two can be counterposed in this way. Thatcher’s neoliberal policies were also characeterised as “authoritarian populism” by Stuart Hall, among others, and many of her neoliberal policies from council house sell-offs onwards were couched in populist terms. The Brexit campaign embodied continuity with that approach, cloaking the rejection of basic EU safeguards in the rhetoric of “taking back control” from remote elites.

Does Tory populism constitute a rupture with the party’s previous politics? It strikes me as less a new political project and more an electoral makeover – a convenient nationalist guise to frame policies that are hostile to the interests of the vast majority of the population.  What is true of the post-2016 period, however, is the way populist arguments are being marshalled to attack the ‘burden of the law’ – not in order to reduce the amount of law governing the UK, but to give ministers the final say over – not just the EU – but any legislative or judicial body that might constrain them.

Government attempts to neuter the Human Rights Act can be seen in this context. Tory ministers are not only contemptuous of the whole notion of inalienable rights. They are alarmed too at the growth of judicial review of government decisions – cases are up from 160 in 1974 to over 3,000 a year today – and the willingness of ‘activist’ judges to find against the government. This they did spectacularly, over Johnson’s unlawful proroguing of Parliament in 2019, a verdict reached unanimously for the first time in the Supreme Court’s history.

Renton believes that the left needs to rethink its attitude to the law. “Movements which see themselves as operating in opposition to the state have become trapped in the law,” he argues. The Stop the War Coalition, for example, argued the war on Iraq was illegal, which was a bit of a dead-end for the campaign.

But did this derail the movement?  The legal status of the war was actually just one argument among many deployed at the time. Furthermore, international law rests largely on consent. Larger countries regularly ignore it and it’s hard to enforce. Despite having been found in breach of international law by the World Court at The Hague for mining Nicaragua’s harbours in the 1980s, the US has never paid a cent of compensation. In the international court of public opinion, however, the verdict still resonates. Seeking legal redress may be an effective strategy.

Should social movements use the law in this way? Renton admits that Occupy London protestors had little choice about being in court when property owners tried to evict them in 2011. But in other examples, the legal route may be all that is left if media and direct action campaigns fizzle out – although it clearly does have its perils: a switch to raising money and fighting on points of law, rather than raising consciousness and mobilising mass support.

Renton cites British trade unions as an example of organisations that chose not to engage with the law, culminating in their boycott of the Conservatives’ 1971 Industrial Relations Act. The context was very different, however, and they did this from a position of strength. Perhaps unions had less choice about legal compliance once the movement had been critically weakened in the Thatcher years.

Using existing law is a different issue to developing new protective laws. Should anti-racist activists prioritise demands for equalities legislation over focusing on the state’s own racist behaviour? Dean Spade has written that the target of trans resistance “should be not legal equality but the dismantling of state violence that is killing trans people.” The search for legal reform, Renton argues, has been a similar dead-end for environmental causes.

Our social movements are stronger in the streets than the courts, he concludes. Agreed – but the breadth of the movements under discussion means that there will always be differences within them over tactics. More conventional groups frequently favour the route of legal reform over direct action.

We should, Renton suggests, demand that the law be simplified and the states’ repressive powers curtailed. To challenge the increasingly technical judicial hold over housing and employment law, the left should build institutions of popular control in which expertise is “a matter of knowledge of workplaces, tenancy relationships or the environment” – just as jurors still have priority over judges in much of the criminal law.

It’s a thought-provoking discussion and there is a lot here to agree with.  Ultimately, there needs to be a clearer distinction between repressive and protective legislation and a recognition that campaigning strategies are dictated as much by the balance of forces as anything else.

Mike Phipps’ new book Don’t Stop Thinking About Tomorrow: The Labour Party after Jeremy Corbyn (OR Books, 2022) can be ordered here.