Criminalizing Dissent

The Liberal State and the Problem of Legitimacy

Rob Watts

• Publisher: Routledge
• Year: 2019
• Print ISBN:
  9781138488717
• eBook ISBN:
  9781351039567
• Topic: Business
• Subtopic: Business General
• Index: Business

While liberal-democratic states like America, Britain and Australia claim to value freedom of expression and the right to dissent, they have always actually criminalized dissent. This disposition has worsened since 9/11 and the 2008 Great Recession. This ground-breaking study shows that just as dissent involves far more than protest marches, so too liberal-democratic states have expanded the criminalization of dissent.

Drawing on political and social theorists like Arendt, Bourdieu and Isin, the book offers a new way of thinking about politics, dissent and its criminalization relationally. Using case studies like the Occupy movement, selective refusal by Israeli soldiers, urban squatters, democratic education and violence by anti-Apartheid activists, the book highlights the many forms dissent takes along with the many ways liberal-democratic states criminalize it. The book highlights the mix of fear and delusion in play when states privilege security to protect an imagined 'political order' from difference and disagreement.

The book makes a major contribution to political theory, legal studies and sociology. Linking legal, political and normative studies in new ways, Watts shows that ultimately liberal-democracies rely more on sovereignty and the capacity for coercion and declarations of legal 'states of exception' than on liberal-democratic principles. In a time marked by a deepening crisis of democracy, the book argues dissent is increasingly valuable.

Chapter 1

Thinking about dissent

If there is one image from the twentieth century that seems to capture the essence of dissent, and so works as a kind of cult image, it must surely be the 1989 image of the lone Chinese protestor, often referred to as ‘Tank Man’. This nameless man was photographed on 5 June 1989, by Associated Press photographer Jeff Widener from a hotel some 800 m away and just one day after the China’s Red Army had literally crushed the pro-democracy movement in Tiananmen Square in Beijing underneath the steel treads of its tanks. The man was photographed standing alone just some meters in front of a menacingly large military tank at the head of a line of similarly menacing tanks. He is wearing a white shirt and black trousers and appears to be carrying what looks to be one or more shopping bags. Witnesses saw the man repeatedly block the passage of a line of very large tanks bearing down on him before he was scooped up by security forces. Like his name, his fate remains unknown.

As with other images, from the countless depictions of Christ’s crucifixion, through the American sailor kissing a girl in Times Square in 1945, to Marilyn Monroe holding down her billowing white dress, any sense or meaning these ‘iconic’ images have, all depend on a range of prior beliefs and conceptual schemes. We need to already know what the image means, before we can ‘see’ it. In effect, while it is often said that ‘a picture is worth a thousand words’, this cliché is demonstrably untrue. You can check this by turning off the soundtrack of a TV newscast or a feature film and try to work out what is going on. As John Berger (1972) and Pierre Bourdieu (2017) remind us, a picture typically needs a thousand words – or more – to disclose its meaning. But how do words work and how do they make sense of reality?

I want to do a few things in this book. I want to make sense of dissent, and establish why and how it is often criminalized by states and whether this raises some problems about the legitimacy of doing this. So to make sense of ‘dissent’ or ‘criminalization’, I could begin by asking a simple question like, what is dissent? and then offering some sort of definition. This is a fairly standard, almost common sense approach. There is an expectation in books like this that the author will offer a formal definition of the thing s/he is interested in. However, I will have to disappoint.

There are some basic problems with this common sense approach. The problems have to do first, with how we think about using words to make sense of the world we live in. This is because we tend to assume that words name things. This points to another bigger more important assumption namely that many of us think that the world we live in is made of stuff called things.

On the face of it, this looks right. As I look around the room where I am writing this chapter, e.g. it is full of things including chairs, books, bookshelves, benches, two computers, a rug and so on. Even the room is a thing: it has walls, windows, a ceiling and a door. Then there’s me. In an important way, I am also a thing: I have length, mass (too much), wear certain kinds of clothes and there are bits of me that are also things like my eyes, the feet I stand on as I work upright, or the hands with fingers which I use to type with and so on. Given that each of these things can be named, as I have just demonstrated what then could possibly be the problem?

As it turns out there are many problems: for one thing, neither dissent nor its criminalization are things. Rather they are actions or ‘practices’ and they need to be thought about in quite different way to the way we (and especially social scientists) normally think about things. This also has implications for the words we use. All of this matters because if we are to work out what is actually happening, we need to pay closer attention to what we are trying to describe and understand.

Let me start by saying why I have problems with definitions. This takes us to the common sense way we think about words and language which has been called the ‘classical theory of language’. I then consider how the idea that the world is made of things has shaped the ways conventional social scientists in sociology, criminology or political science make sense of what is actually happening. Treating people as things, e.g. has encouraged a futile exercise in trying to measure/explain/predict what humans do. I then outline briefly an alternative perspective I am proposing for thinking about dissent (and its criminalization, that involves taking what’s been called the ‘relational turn’. Finally I unpack the first of several basic puzzles about the practice of dissent namely how the ubiquity of disagreement in ordinary life somehow becomes a ‘problem’ called ‘dissent’. Let me start with definitions.

The problem with definitions?

It is a truth generally acknowledged by many social scientists that we cannot do any research till we have a clear definition. That said it seems that there are also problems when trying to define something like ‘dissent’. Historian Robert Martin (2013: 3) acknowledges, e.g. that dissent is ‘a very broad complicated category’ and one that is also deeply ‘contextual’ before he plunges into the task of defining dissent declaring that:

Dissent is any practice – often verbal, but sometimes performative – that challenges the status quo (the existing structure of norms, values, customs, traditions and especially authorities that underwrite the present ways of doing things.

(Martin 2013: 3)

Donna Riley (2008: 20) likewise argues that dissent embodies a ‘fundamental logic of social justice’ and therefore ‘defines itself against the status quo’. Riley draws on Brownlee’s (2007/2013) account of civil disobedience, to highlight some of the key forms of activist dissent including civil disobedience (or non-violent direct action), legal protest, rule-breaking, conscientious objection, radical protest, revolutionary activism and then almost as an afterthought adding in industrial strikes and whistleblowing. Both Martin and Riley depends on Brownlee’s assumption, made in a conventional and philosophically sanctioned way, that we can identify some essential features like ‘a conscientious or principled outlook and the communication of both condemnation and a desire for change in law or policy’ before adding other features like ‘publicity, non-violence, fidelity to law’.

Roland Bleiker argues that producing an ideal-typical or abstracted definition let alone a formal, well-bounded ‘model’, or ‘taxonomy’ of ‘dissent’ (and I would add of categories like ‘criminalization’ or ‘the state’) is neither possible, let alone desirable. Bleiker says that the highly contingent nature of dissent means that ‘grand theories of dissent run the risk of objectifying and entrenching forms of domination’ (Bleiker 2000: 140). Bleiker (2000) suggests paying a lot of attention to each case of dissent rather than pursuing some ‘grand theory of dissent’. Of course some will still insist that we cannot do this till we know what kinds of things count as a case or instance of dissent and that we need to enumerate or identify the core features of dissent.

Though this is not at all immediately obvious, this discussion highlights two really significant questions. The first of these is this: how do we use words to name the stuff of the world? The second of these is equally difficult: what is the ‘stuff’ of the world we are trying to make sense of?

It is fair to say that most conventional social scientists avoid engaging explicitly with both problems. When we look at the practices of conventional sociology and political science, we will see they think about and use language in ways that writers like Eleanor Rosch and George Lakoff say depend upon the ‘classical theory of language’.¹ Equally most social scientists assume that the stuff they do their research on are things and assume that the social (or political) order is an ‘order of things’. There is a significant reciprocal affinity operating between both assumptions. Both the ‘classical theory of language’ and the idea that our world is simply made up of things are unhelpful because untrue. Dissent is not a thing but an activity involving relations. Let me start with the ‘classical theory of language’ and spell out what this means and why it matters before I turn to the idea that social scientists need to stop thinking about things and to start thinking about relations and actions.

The classical theory of language

Expecting or demanding a definition depends on an old tradition of using words to define a name/thing in terms of its essential qualities or characteristics. For example, we might say that the name ‘cat’ is defined in terms of certain properties like being a small, typically furry, mostly domesticated, carnivorous mammal, with parts that include four legs, whiskers and a long tail. Elliot Sober points out that the search for essential defining features assumes that the world is made up of things characterized as:

… natural kinds. It holds that each natural kind can be defied in terms of properties that are possessed by all and only members of that kind. All gold has atomic number 79 and only gold has that atomic number … a natural kind is to be characterized by a property that is both necessary and sufficient for membership.

(Sober 1980: 148)

The expectation that we can or should define our categories entails that we can and should define the essential characteristics of the thing we are interested in as a prelude to some kind of enquiry, so that we can establish a true relationship between our truth claims and the world. In the natural sciences, this has informed the way natural scientists produce descriptions of rocks, flowers, chemicals or natural events. People working in the social sciences continue to heed Max Weber’s advocacy for ‘ideal types’ by trying to define social and political phenomena like ‘crime’, ‘the family’, ‘justice’ or ‘representative democracy’ in ways that capture their defining properties (Derman 2012). This also informs the practice of operationalization in quantitative social science research which is based on the premise that we do not know the ‘meaning of a concept unless we have a method of measuring it’ (Bridgeman 1927: 5).

As Jerrold Katz says, what Lakoff calls the ‘classical theory of language’ has been spelled out in the twentieth century by philosophers like Frege (1952), Church (1956) and Searle (1958). This approach assumes that the practice of naming, and the idea of reference in general, relies on ‘our mentally connecting a set of properties with a name, our identifying something as having each of these properties, and our applying the name to the object by virtue of this identification’ (Katz 1977: 1). This ‘classical theory of language’ has come under deadly fire since the 1950s when Ludwig Wittgenstein (1958) laid out the problems with it.

Wittgenstein argued that traditional theories of meaning in Western philosophy had wrongly asserted that the meaning of a sentence was to be found outside the proposition and this is what gave a sentence its sense. This ‘something’ was located either in the world (or ‘reality’) or it was to be found in the mind as some kind of mental representation or ‘idea’. Hence the meaning of sentence like ‘The cat sat on the mat’ makes sense and/or is true because there is a cat sitting on the mat. Or a sentence like ‘Two plus two equals four’ makes sense because we have agreed on the rule that ‘Two plus two equals four’. As he argued the idea that ‘the essence of human language’ rested on the premise that ‘the words in language name objects’, and that ‘sentences are combinations of such names’ was nonsense because the reduction of language to representation failed to catch the complexity of what was going on. Wittgenstein argued that the meaning of the word is revealed in its actual use: in effect Wittgenstein became an anthropologist of language itself as a form of life is a practice that is part of a way of life found in all communities. If we look at the actual use of words, they reflect a rich array of language-games and practices relying loosely on rules that we use, e.g. when reporting an event, speculating about an event, forming and testing a hypothesis, making up a story, reading it, play-acting, singing catches, guessing riddles, making a joke, translating, asking and thanking (Wittgenstein 1958: 11–12). In effect, Wittgenstein was arguing against the time-honoured idea that we can produce definitions, a point he made delightfully by showing that we cannot even provide a definition of the concept of a ‘language-game’ because there is always something fuzzy and contingent about the way we use the idea of ‘game’.

That idea, in turn, inspired scholars like Eleanor Rosch and George Lakoff, who grasped the implications of Wittgenstein’s attack on the idea that language was a literal representation of reality. Lakoff argued that the ‘classical theory of language’ relies on many problematic assumptions including claims that:

• words only have one meaning and can be defined or be comprehended literally;
• only literal language can be – contingently – true or false;
• all definitions given in the lexicon of a language as represented, e.g. by a dictionary are literal, the concepts used in the grammar of a language.

(Lakoff 1993: 205)

As Lakoff has demonstrated none of these claims are true. Research by Rosch (1975) shows that concepts like ‘fruit’ or ‘animal’ encoded by natural languages have vague boundaries implying that propositions will most often be neither absolutely true, nor absolutely false, but rather true/false to a certain extent, or true in certain respects and false in other respects (Lakoff 1972: 183). Worse these claims ignore the central role played by metaphor (to ‘see’ why this is so, you might reflect on the use I have made of words like ‘ignore’, ‘demonstrated’, ‘played’, ‘central’ or ‘role’ in the prior sentence). Lakoff has gone on to argue for understanding the way human thought and language actually rely on metaphor and underneath that linguistic technique on a process he calls ‘ontological mapping across conceptual domains’. His example is the way in which we might speak of a love relationship: Our relationship has hit a dead-end. Here ‘love’ is understood as a ‘journey’, which in this case implies that the relationship has ‘stalled’, that the lovers ‘cannot keep going the way they’ve been going’, that they must ‘turn back’, or must ‘abandon the journey’ as relationship altogether. The conceptual system used for understanding the domain of love draws on the domain of journeys. The metaphor is not just a matter of language, but of thinking. The conceptual mapping is primary, and the language is secondary. In this case, we make a mental map that translates from the ‘source domain’ (i.e. ‘life – or love – is a journey’) to the ‘target domain’, i.e. ‘our relationship’ (Lakoff 1993: 2010).²

This new account of language and meaning and the fundamental role played by metaphor in human thought has implications for any traditional approach in the social sciences, which says defining our terms or concepts so as to arrive at a literal or close match between concept and reality is both a good idea and possible.

If there are issues with the way we rely on dodgy assumptions about words and concepts, this is even more true when we think about what reality is made of.

How do sociologists think about ‘the social’?

Let me start with an indispensable question: what is the ‘stuff’ that sociologists are interested in? Or to put this formally, how do sociologists think about ‘the social’? (We could ask the same question of political scientists, criminologists, economists or psychologists and their ‘objects’ of study like ‘the political’, ‘crime’, ‘economics’ or ‘the mind’: I am simply using sociology as an example to highlight a more general disposition).

As will become clear, there are any number of apparently different answers to this question. The differences have something to do with how different sociologists identify, e.g. as ‘quantitative’ or ‘qualitative’ sociologists. ‘Quantitative’ sociologists do a lot of data collection about ‘social facts’ like rates of employment, crime or protest and then do statistical analysis of ‘variables’ as they strive to generate explanations that can also serve as predictions. ‘Qualitative’ sociologists, on the other hand, do ‘ethnographies’ or ‘participant observation’ and talk a lot about the meaning of gestures or ‘the social construction of reality’ and the ‘rules of the game’ involved in ‘symbolic interaction’.

Why then do I say that the most sociologists think about ‘the social’ in ways that assume that different kinds of substance are constitutive of ‘the social’? One immediate objection is that surely this is not possible given the distinction between ‘quantitative’ and ‘qualitative’ sociologists. Surely the fact that there are long-standing methodological disputes between ‘quantitative’ and ‘qualitative’ sociologists (or political scientists, criminologists etc.) sugge...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication Page
• Table of Contents
• List of figures and tables
• Acknowledgements
• Introduction
• 1 Thinking about dissent
• 2 Thinking relationally: bringing the political back in
• 3 The many faces of dissent
• 4 ‘Protecting democracies from themselves’: how liberal democracies criminalize the political
• 5 Law against liberty: making sense of the criminalization of dissent
• 6 Liberalism, law and the problem of legitimacy
• 7 The political legitimacy of the liberal-democratic state
• 8 The legitimacy of political violence
• 9 Why dissent is good for us
• Conclusion
• References
• Index