Legal Terror
The Metropolitan Police is not the first organisation one has in mind when one thinks about semiotics. Nevertheless, queries about the application of hate speech law on the slogans chanted at Pro-Palestinian marches have led the Met to ponder aloud the elusive nature of meaning. Hurry Up Harry, for example, tweeted a video of Hizb-ut-Tahrir calling for ‘jihad, jihad, jihad’ to ‘liberate people from the concentration camp called Palestine.’ The Metropolitan Police, replying to the video, argued that
The word jihad has a number of meanings but we know the public will most commonly associate it with terrorism. We have specialist counter terrorism officers here in the operations room who have particular knowledge in this area.[1]
I assume they do not mean “philosophers of language” standing at the ready to argue about pragmatics and speech acts. The word ‘jihad’ - struggle in Arabic - does indeed have many different meanings. Adil Ray argued that in this context it means ‘spiritual struggle to do good,’ and that the protestors were therefore ‘doing jihad.’[2] But when spoken by a member of a group that calls for a global caliphate, the meaning is rather more likely to have the meaning of violent struggle and conversion. If one were to ask those actually chanting the slogans, one would generally get either a clear and unpleasant answer or an evasive and jesting one. We have a similar problem in ‘From the River to the Sea.’ Depending on who you talk to, this is either a call for liberal emancipation and equality under the law, or a call for a purge of all Jewish citizens that would make the nakba look like the end of a school day. Wondering about the meaning of these protests is akin to wondering about the meaning of chants; they both inhibit a playful, jesting space in which the threat of violence is as elusive as it is omnipresent, both in the crowd itself and in responses from police and state.
If prosecutions and policing have been sparse, it is not for lack of applicable law. Every day, Suella Braverman appears on TV to propose a new policy that’s somehow more deranged than the last. She recently argued that the implementation of public order and hate speech law was a police decision; simultaneous promises for new legislation were joined by an assertion that police already had the powers to intervene. It was, alas, out of her hands to command them, but they should do it anyway. Nudge nudge, wink wink. A few days later, Braverman returned. This time, she argued that homeless people living in tents were making a ‘lifestyle choice’ that polluted our cities. She therefore planned new legislation to prohibit homeless charities from handing out temporary shelter. This unsurprisingly did not make the King’s Speech. Braverman’s references to San Francisco have drawn some to conclude that her influence here was right-wing American commentators. Yet her language of lifestyle choices, urban chaos, and pollution should all be seen in the context of a much older tradition, one in which the city is a contested space of order and chaos. Like the neoliberal market, it is in constant need of discipline lest it become too democratic. In this sense then, we can see not only the protests but wider contemporary questions about house-building, renting, and the green belt in terms of a struggle between state and people, government and metropolis, boom and bust, public spending and fiscal restraint. The Home Secretary and the Met Police generate new law, but refuse to enforce it or enforce it only selectively and incoherently. Questions of community relations are important in one context, but not the other. I want to suggest then that this shows the weakness of the state and the threat of the crowd; by generating new law but refusing to enforce it, Braverman and the Met are engaging in the same carnivalesque discourse employed by demonstrators and protestors in order to make dangerous political discourse that deals with questions of integration, power, and democracy illegible. More widely, the best way to see this comes with a comparison to the eighteenth-century.
Since the coalition government implemented austerity in response to the global financial crisis, the number of laws has only increased. Harri Talfan Davies noted the relationship between austerity and new laws on twitter:
the police need significantly more resources. You can’t constantly broaden the hate speech definition, as we have since 2010 and expect nominal increases in real terms spending to suffice.
Between 2012 and 2014, over 500 new criminal offences were established (and therefore the expectations of the police significantly increased)…
During this period, funding, in real terms, decreased.
And people wonder why the MET and other police forces, perform the way they do.[3]
The problem, then, is not that the police are in need of new resources. They have the resources and the legislation. This hasn’t stopped the home secretary from promising new laws and dragging in the head of the Metropolitan Police to ascertain why they hadn’t acted. On the contrary, Suella Braverman has accidentally revealed the point of this thicket of legislation; that there should be enough legislation so that ever-more behaviour can be legislated and defined in order to be selectively applied. The key here is ‘selectively’. Since the police do not, as Teflan noted, have enough resources to properly investigate every crime (see, for example, the surfeit of reports of burglaries and thefts closed with no further action within hours), they are forced to choose which offences merit sanction. It is this logic at play in the protests; hundreds of thousands of people massing in the capital present a serious threat to state power. It also presents a serious threat to the ability of the police to shape and control the crowd. Austerity, then, is bound up with legal expansionism; what Theresa May called a ‘hostile environment’ isn’t one in which the state uses all its force to filter and enforce, but rather a tacit hope that crowd will self-regulate, sparing the state from the awkward questions of legitimacy, identity, and justice. Both, ironically, therefore, use the same tactic of dissimulation and word play in order to navigate this space between confrontation and tolerance.
The best historical parallel for the last decade and a half of state weakness comes from the long eighteenth century. 1688 to 1832 reaches from the Glorious Revolution where Protestants afraid of French Catholic absolutism unseated James II, the Jacobite attempts to reclaim the throne in 1715 and 1745, the War of American Independence, the Revolutionary and Napoleonic Wars to the Great Reform Act which brought an expanded electorate and weakened the importance of aristocratic patronage. What, then, was a Briton? What was their relationship to their King, his government, and the nation? David Lemmings argues this period was one of centralisation; of the erosion of civil legislation, local customs, exceptions, and the retreat of common law in favour of property and narrow proto-capitalist ‘liberty’.[4] Adrian Randall points to how Jacobitism ‘provided the Whigs with the justification to crush all opposition [...] It also legitimated the expansion of what historians have referred to as “legal terror”. The Riot Act began this process.’ It was followed up by Act after Act that extended the death penalty to ever-more crimes. Most of these were related to radical politics, formation of trade unions, and the protection of property. The most notorious of these, The Black Act of 1723, alone added some fifty distinct capital offences to the statute books.[5] This act, as well as bringing in an oath of allegiance and punitive tax on Catholics and dissenters, ‘made going in disguise, in effect having blackened faces, a capital crime.’[6] Alexander Murdoch meanwhile sees a link between the transmutation of a confessional British identity (of certain anti-Catholic creeds, of subscription to certain Articles) to one of - like Lemmings - property and race.
Yet this thicket of laws could always be sidestepped. The state could choose whether or not to apply the rules. James Bradley argued that prior to George III, upper-class dissenters were one of the constant linchpins of the Hanoverian State - despite their de facto exclusion from public life - because of their de facto tolerance.[7] George III, irritating them by refusing to pass legislation that would dispense of the legal requirement to swear allegiance to the 39 Articles, defended himself by pointing out that ‘the crown regularly grants a noli proseque if any over-nice Justice of the Peace encourages prosecution.’[8] In other words the state may have terrifying laws, but they are never or rarely used.
By remaining on the statute books however, these laws allowed the state to sidestep competing claims to Britishness and, therefore, dangerous demands for a more representative democracy. Writing on the English Catholic Community in the first half of the long eighteenth century, Gabriel Glickman emphasises their fundamentally stubborn Englishness; embedded as they were within local communities at the same time as they were forced to send their children to the continent to be educated in the faith. These connections meant that Catholics could to some degree circumvent Penal Laws that prevented them from inheriting property; there were usually friendly Protestant neighbours or relations for workarounds. Laws which required oaths forswearing Papal supremacy and affirming Anglican belief were more difficult, though oaths were only generally required at times of crisis - rare after the failure of the ‘45. Eamon Duffy, writing of the pamphleteer William Payne’s attempts to prosecute as many Catholics as he could get his hands on in the 1680s and 90s, similarly emphasises the unwillingness of the state to actually wield the fearsome legislation it held:
The Lord Chief Mayor of London not only refused to proceed against papists but bribed Payne’s constable into inactivity. Above all Lord Chief Justice Mansfield insisted that evidence that an individual had performed priestly functions was no evidence of his priesthood: separate proof of ordination was essential.[9]
Since the Hanoverian State was bound up with the Protestant Settlement (which excluded Catholics from the line of succession), which was in turn entangled with the Glorious Revolution (the invitation to James II to reclaim the throne from the short-lived protectorate and re-establish the church of england) and therefore existential questions of the Protestant or Catholic nature of the nation, this fudge points to awkward attempts to deal with the demands of a multi-confessional nation on a monarchy under threat from American rebellion and French Revolution. Catholics and Dissenters may have proved their loyalty, but Protestant Sectarianism remained at the core of the state’s legitimacy. The expansion of capital crimes noted above and shift from sectarian to propertied ‘polite’ conceptions of British National Identity are bound up. Unable and unwilling to either prosecute or incorporate for fear of sectarian violence and weakening their own hegemony, the British State’s explosion of laws allowed both direct violent attacks to be prosecuted if necessary and shifted British Identity to a matter of speech, act, and property. In other words, the blossoming of bloody laws yet de facto tolerance allowed a weakened state the time to think, plan, reform, and integrate.
In both the 18th and 21st century, the prospect of sign and signifier, word and meaning being sporadically yet violently enforced engenders a rich world of double-meaning. As Bridget M. Marshall traces, the uncertainty whether or not you’ll be subject to a capital law risks a greater psychological terror than the certainty of arrest and imprisonment. Such anxiety drove the rise in Gothic Literature; Marshall argues that the prominence and contingency of the law is a constant preoccupation in these novels for that very reason.[10] Jokes, word-play, double-meaning, rebellious politics and affiliation displayed in and through clothing were and are key facets both of Jacobite and our contemporary politics. As Nicholas Rogers comments, Jacobitism emerged out of a world of oaths, portents, riddles, revels, and anniversaries; in an often carnivalesque atmosphere of seditious laughter and ritual inversion.[11] Jennifer Novotny catalogues a rich wardrobe of material culture through which women in particular could display political allegiance to those who spoke the same language of dissent.[12] Masked insurgents, traitors, and rioters were linked to dissolute masquerade balls in the popular moral imagination. The Bishop of London’s ‘famous sermon against masked assemblies in 1724’ writes Terry Castle, ‘blamed their appearance on the machinations of a certain ‘ambassador of a neighbouring nation’ and exposed them as a French plot to enslave ‘the Englishman’ by encouraging in them ‘licentiousness and effeminacy.’[13] Of course, Jacobitism could mean amorphous dissent rather than subscription to the Catholic Prince over the Water.[14] The key was that it, like contemporary protest, provided a common language in which to engage with an uncertain landscape of popular protest against legalised speech. To join in with blatantly anti-semitic chants, to call for genocide, to walk around with photos of Hamas fighters on paramotors, only to then deny their obvious meaning is to dare the state to recognise the meaning of those words and thereby test its own power to protect or discipline its citizens.
Word-play, masking, even gendered ambiguity then, all point to a wider contemporary crisis in legitimacy. When the police question the stable meaning of flags and words, they point to the porous boundaries between legitimate and illegitimate speech and identity. They do not have enough resources; to enforce all the laws rigidly would be to risk renewed political and religious violence and reveal the state as in a state of crisis. When they do decide to use these laws to prosecute or disrupt or arrest, for instance in the Sarah Everard Vigil, the selective application of COVID legislation, that a flag ‘really’ signifies intolerance, it only draws further attention to what they decide to overlook. The refusal to say what Jihad ‘really’ means, or whether a flag was an ISIS flag or not, or the geopolitical implications of ‘From the River to the Sea’ all highlight that the point of hate crime legislation is to sidestep rather than confront. This, too, is why, like how Jacobitism became a wider material culture and language of dissent under the sword of damocles, asking what chants and word play ‘means’ is beside the point. The point is plausible deniability, of asking the state to reveal itself, of daring the state to reveal its own instability. The desire to know what a word ‘really means’ links, finally, with the obsession with ‘unmasking’, both by the Bishop of London in 1724 and the Daily Mail in 2023. In both, we see again how masks and masking represent what Bakhtin called a ‘particle of some other world,’ and the fragility of our own.[15]
https://twitter.com/metpoliceuk/status/1715751560167223683
https://twitter.com/adilray/status/1716352565107925182
https://twitter.com/HarriTD_pol/status/1716405383848136956
[4] David Lemmings, Law and Government in England During the Long 18th-Century: From Consent to Command (Basingstoke: Palgrave MacMillan, 2011), pp. 1- 2, 157-8.
[5] Adrian Randall, Riotous Assemblies: Popular Protest in Hanoverian England, (Oxford: Oxford University Press, 2006), p. 48 – 9.
[6] Randall, p. 49, 175.
[7] James E Bradley, Nonconformity in Eighteenth-Century English Society, (Cambridge: Cambridge University Press, 1990), xii, 4.
[8] Bradley, p. 84
[9] Eamon Duffy, ‘Richard Challoner 1691 – 1781: a memoir’ in Eamon Duffy (ed), Challoner and his Church, (London: Darnton, Longman, and Todd, 1981), p. 22.
[10] Bridget M Marshall, The Transatlantic Gothic Novel and the Law, 1790 – 1860, (Farnham: Ashgate, 2011), p. 1 - 5.
[11] Nicholas Rogers, Crowd Culture and Politics in Georgian Britain (Oxford: Clarendon, 1998), p. 18..
[12] Jennifer Novotny, ‘Polite War: Material Culture of the Jacobite era; 1688 – 1790.’ In Alan McInnes, Kieran German, and Lesley Graham (eds.) Living with Jacobitism, 1690 – 1788 (London: Pickering and Chatto, 2014), pp. 153 – 172, p. 158
[13] Rogers, p. 7.
[14] Dominic Green ‘From Jacobite to Jacobin: Robert Watson’s Life in Opposition’ in Alan McInnes, Kieran German, and Lesley Graham (eds.) Living with Jacobitism, 1690 – 1788 (London: Pickering and Chatto, 2014) pp. 185 – 196, p. 188.
[15] Terry Castle, Masquerade and Civilisation: The Carnivalesque in Eighteenth-century Fiction (London: Methuen, 1986), 75