The Law is Criminalising Activists Because It Can’t Criminalise Violence

Violence is a feature, not a flaw

The British State this week overthrew a key legal defence protecting climate activists. The belief in consent defence has seen juries acquitting activists in criminal damage cases, much to the fury of the establishment and, on Monday, the Court of Appeal ruled that evidence presented by defendants about the effects of climate change would be “inadmissible” in the future.

The “consent” defence argued that activists who engaged in damaging property, such as breaking the windows of a fossil-fuel invested bank, genuinely believed the owners of that property would have given their consent to the action if they truly understood the reasons for the protest, such as the effects of climate change. This defence successfully won over juries when presented with the catastrophic impending effects of climate change. Losing this defence is a huge blow both to activists waiting to stand trial and the justice system as a whole, which has been weaponised against victims rather than perpetrators. Following the advice of The Atlas Network, the shadowy network of right-wing global think tanks behind the recent criminalisation of protest around the “democratic” world, the British government is using its police force and courts to crack down on “eco-terrorists” all whilst granting more licences for oil and gas exploration in the North Sea.

The effects have ricocheted throughout the seats of British power. Just days after the ruling, the Independent MP for North West Leicestershire, Andrew Bridgen, a member of the science-denying Net Zero Scrutiny Group, stood up in the Houses of Parliament and gassed: “Independent scientists have stated that higher carbon dioxide levels would be beneficial for life on the planet through increased plant growth… So can we have a debate on government time about the cost benefits of Net Zero before trillions of pounds of taxpayers’ money are wasted?”

And on the very same day, a delegate of the British government told the United Nations that the UK can never accept that nature has rights: “The UK’s firm position is that rights can only be held by legal entities with a legal personality. We do not accept that rights can be applied to nature or Mother Earth. While we recognise that others do, it is a fundamental principle for the UK and one from which we cannot deviate.”

What happens in British law matters as it is the bedrock of legal systems around the world. A living legacy of British colonialism, the Law validated the rape of people and land, the theft of resources, and the hierarchy of domination and oppression. It gave men in wigs the right to put other men in chains, and granted legal rights to corporations long before people of colour or women. Arguably, without any meaningful reform, the Law continues to serve its initial purpose: to grant absolute power to a minority.

This immense violence is dressed up as justice. In Violence and the Word, legal scholar Robert Cover argues that the Law’s power is predicated on “a willingness to put bodies on the line”: incarceration. How striking that activists today also use that language when throwing themselves against the power of the state. Cover argues that by denying this violence, its own, the Law cannot operate in the real world, and instead “imposes an imagined future upon reality”.  

This explains why criminals walk free while civilians are jailed. The Law gains its hard power through a willingness to commit violence; it maintains its soft power by allegedly exercising that power to maintain order. According to the Law’s own logic, occurrences of violence are aberrations in an otherwise functioning system, for it metes out justice. But if the Law’s own power is built on violence then violence, surely, is not an aberration but a necessary function of that system? And if violence is the function, what right does the Law have to commit violence in the name of order? Its violence does not achieve order if violence is the norm. Instead, its violence is nothing more than a continued oppression and domination to grant absolute power to the minority.

This is why the Law so often fails to convict violence. Thanks to the #MeToo movement, we know the terrible prevalence of sexual violence. It is, simply, a reality for most women. Yet, in England, the conviction rate for reported rapes is under 1%. How can the Law be so out of touch with reality? Because it pretends that violence is a flaw, not a feature, and adequately convicting violent perpetrators would acknowledge the world rather than project upon it. It is far easier to control an imagined future than reality; it is far easier to deny victimhood than police criminality.

The Law must deny criminality, for criminality defines Statehood in the Global North, the hemisphere which raided and ransacked the majority world. State power is access to energy, ideally a large surplus, be it stolen resources, slave labour or fossil fuels. Enshrining the legal rights of Nature directly challenges the British State’s access to power. This is why rejecting those rights is a “a fundamental principle for the UK and one from which we cannot deviate.” The Law depends on hierarchies and violence to function, and challenging that oppression threatens to bring the whole institution down on itself. Activists finding common ground with a jury of their peers also undermines the British State’s access to power, which was first gained by stealing land from the majority.

The British Law cannot criminalise violence because it is a violent institution, in league with the violence of the State, whose power depends on extraction and domination. We rightly rail against American imperialism but British Law is the arteries through which the artillery flows, its commitment to injustice revealed with every public prosecution.

© Rachel Donald