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Does more justice actually require fewer laws? Social justice lawyer David Renton explains why

Podcast & Video

This episode of Hub Dialogues features host Sean Speer in conversation with leading British social justice barrister and activist, David Renton, on his thought-provoking new book, Against the Law: Why Justice Requires Fewer Laws and a Smaller State.

You can listen to this episode of Hub Dialogues on Acast, Amazon, Apple, Google, Spotify, or YouTube. A transcript of the episode is available below.

Transcripts of our podcast episodes are not fully edited for grammar or spelling.

SEAN SPEER: Welcome to Hub Dialogues. I’m your host Sean Speer, editor-at-large at The Hub. I’m honoured to be joined today by David Renton, who is one of Britain’s leading social justice lawyers with clients that have included Occupy protestors and blacklisted trade unionists. He also writes regularly on law and justice for the Guardian and the London Review of Books.

I’m grateful to speak with him about his thought-provoking new book, Against the Law: Why Justice Requires Fewer Laws and a Smaller State, which somewhat counterintuitively argues, as the book’s title suggests, that fewer laws in a smaller state would actually advance the goals of equity and worker’s rights. David, thanks for joining us at Hub Dialogues, and congratulations on the book.

DAVID RENTON: Thanks so much, Sean. It’s an absolute pleasure to be here.

SEAN SPEER: Let’s start by way of biography. Your online bio describes you as a social justice barrister. Why don’t you tell listeners about you and your worldview? How did you come to the law and what values animate you in your work?

DAVID RENTON: I suppose I’m an unusual figure, certainly in Britain anyway, because I’m actually from a very posh and even traditional Conservative background. I went to Eton College, which your listeners may know is the same school that’s produced two of our last three prime ministers. One of my uncles was the Chief Whip in Margaret Thatcher’s Conservative government. The man in the gray suit who, famously, had the job of knocking on the door and telling her her time was up.

When I was in my 20s, I worked in universities and I just drifted into working for the trade unions that represented university lecturers. And then about 15 years ago, I became a barrister and it just seemed a very natural progression. I’m definitely left of centre, and it seemed quite a natural progression to represent workers rather than employers, tenants rather than landlords, and so on.

SEAN SPEER: If we can shift to the book, as you’ve just outlined your political commitments and preferences are firmly to the Left, yet the book’s subtitle suggests that you want a smaller government. Help me and listeners understand this point. Aren’t leftists and progressives supposed to be for bigger government?

DAVID RENTON: That’s exactly the thing. When I first came around the Left in the mid-1980s, at that time in Britain, when things like the miner’s strikes—which I’m sure lots of your listeners know about—when those things were going on, the whole way politics worked was that the Left was for changing things, breaking them up, starting over. It was the Right that was for keeping them the same. That’s why our main party on the centre-right in Britain is called the Conservatives, because they were about keeping all those things the same.

Now, one of the things that I noticed—I’m quite old, I’m 49 years old, I’ve been through several generations of politics—is that there’s this strange transformation that’s taken place. Now, these days it’s the Right that wants to change things, wants to break things up, wants to make everything anew. The Left either, as you say, we just talk about slowly building the state, slowly increasing maybe welfare reforms and the interests of one group or another, but we’re always in favour of keeping what we’ve got against these other people who talk about taking the laws and rights away.

Now what I want to point out in my book is if you take a few steps backward—you don’t need to be left or right wing to do this, anyone can go through this process—all of us are surrounded by vastly more law than there was 30 or 40 years ago. I’m not talking about whether the law now is good or bad for all these individual laws. Should we have a law against theft? Yes, of course. Should we have a law against murder? Yes, of course. All these individual laws are fine, but what they do is they leave people feeling absolutely powerless in their lives. They’re the product of forces they don’t control.

I don’t know if this would work in Canada. It seems to work when I talk to people in Britain. I ask people, “Do what’s in your employment contract? What rights you’ve got? And which ought to be in your employment contract, but the employer forgot to put them in? How about your tenancy contract? What’s in that? Do you know what rights you’ve got or you don’t have when you sign up for an insurance policy?” The truth is we’re all more and more bound together by these relationships in which people have a greater and greater sense of powerlessness. I just think that’s bad for democracy.

If you want to think about why our time seems to be producing these politicians who are quite paranoid, quite destructive, and voters really engage with them, I think it’s because of that sense that all these things are going on that they don’t control. I’m not saying this is all of it, but I’m saying it’s a part of that process. It just seems strange to me that the right keeps on talking about that, but no one on the left in Britain, in France, no one I know of say in the United States, talks about that process and starts to say, “Well, look. Are the laws that we’ve got actually delivering what we want them to do?”

SEAN SPEER: To your point about, the transformation of the Left and the Right, in a recent precursor to the book for the left-wing journal Jacobin, you draw on Marx to argue that the modern Left has put too much emphasis on the state’s lawmaking function at the expense of progress being achieved through social movements. Can you please help us understand your argument? Why in your view has the Right been more Marxist than the Left over the past 50 years?

DAVID RENTON: Well, first of all, I don’t know that anyone had a plan for this. One of my great beliefs about history is that people just are in a situation and they make choices and things work, and the really successful politicians don’t go into it with a plan. They improvise and things work so they keep on doing them. The article you’re talking about for Jacobin was very much based on, again something I’m sure your listeners will be familiar with, the recent case which overturned Roe v. Wade.

We’ve had, for 50 years, lots of people on the Left regarding this as an absolutely titanic issue: abortion. We have to defend this. If you’re not defending this, you’re not supporting women’s rights. The problem we’ve got at the end is that for whatever reason we can go into, but at the end, after 50 years you have a change in the Supreme Court. Suddenly that 50 years of hoping this would be this huge protection is just gone.

I suppose part of the reason—if you just look specifically at Roe v. Wade—part of the reason it went like that is because of course the Right had lost. People who lose in a big historical battle, the first thing they do is they look around and they say this isn’t working. They look around and they change tactics, and they went towards building their base and towards creating not necessarily a majority—but of course, all the polls, as I understand them, seem to suggest that most Americans would actually like there to be abortion rights—but the Right went back to their base, energized people, persuaded the politicians that this should be a central issue, and they mobilized enough people.

One of the things I find extraordinary about the Left is we seem to be losing that tradition. That’s on every issue, whether it’s abortion, whether it’s workers’ rights, whether it’s whatever other thing you care to talk about. We’re so good at thinking, “How are we going to frame this argument so this institution of power will accept it?” We’re losing the sense that actually in a democracy you win because most people agree with you. We’re also losing a sense that some of these institutions might have quite long-term reasons—I don’t think, in the United States say, there’s any particular long-term reason why the Supreme Court should be before or against abortion. If you talk about some of the other big things, the big battles, which the Left has lost in the Supreme Court in the last 10 years, for example about campaign funding, there are all sorts of reasons why the law tends to go certain ways and is only ever going to be a temporary ally, particularly to outsider movements on the Left.

SEAN SPEER: As you say, David, a key argument in the book is the idea that, as you put it, “The wider the law expands into society in each of our lives, the smaller the space it leaves for moments of resistance.” Let me ask a couple of questions. What particular areas of law stand in the way of resistance at this stage? And should social justice activists reorient some of their attention and energy to reversing these rules and laws, even if it delays progress on their main goals? In other words, is it your argument that the Left ought to be more focused in the short term on means rather than ends?

DAVID RENTON: Maybe if I could take that second question first. I think it’s the other way around. It’s almost that we’ve been too focused on means and not enough on ends. If you think about—and again, I appreciate some listeners will find this an attractive argument, some may not—for me, one of the really key questions facing the world right now is that global warming is heading right ahead of us. We’re trying to stop 1.5 degrees worth of warming. We start trying to stop two degrees worth of warming.

The problem we’ve got is that every time a bit of carbon dioxide is released into the atmosphere, it sticks around. Some of it sticks around for hundreds of thousands of years. The budget we’ve got in terms of the amount of carbon we can burn before absolutely warming the whole planet is really small and we’re using it up really fast.

Now, that to my mind poses a really key question to the Left. On this one, I don’t particularly say the answer is means or ends, but I think at least we need to confront the problem. The problem goes like this. If we made a system of environmental courts and we staffed them with the people who’ve been judges in Britain anyway for the last 40 years, they just wouldn’t be interested in environmental law, because effectively we’ve gotten none at the moment. They’ve never used it.

They’ve never spoken that language. It’d be completely weird and strange and alien to them. Create a system of environmental courts and there’s a real risk you’d get neutralized very quickly. But turn that around. If you don’t do that, if you’re trying to make that transition without any help from the law at all, I can’t see how that’s going to happen. Some of my book isn’t really about saying the answer is means or ends. Some of it’s saying, “Look, some of these are just dilemmas. And really what you need to do is see the dilemmas, confront them, notice they’re there and then work out strategies for them. Until at least you know they’re there, you’re powerless. You don’t know what’s the right way to get through them.”

SEAN SPEER: I have a friend David, who has experience as a labour organizer, and one of his arguments is that by advocating for government rules and laws about employment, including minimum wages, benefits, et cetera, unions have essentially socialized and in turn cannibalized their own function. What’s behind that in your view? Is it magnanimity, political naivety, or something else?

DAVID RENTON: Well, I can best describe that process in Britain, and I really don’t want to pretend that it happens the same everywhere in every country because you can just get things completely wrong. What happened here is that we didn’t have any individual employment law until 1972. The government that brought it in faced the biggest strike wave in British history because trade unions were against it.

It sounds very counterfactual. Why on earth would unions be against the extension of rights to workers? But they were. They didn’t necessarily know all that was going on, but they totally sensed—it wasn’t the only thing they were against; they were against other things in the same bill—but they sensed, “If we do this, it’s going to make things a lot tougher for us.” Workers largely ignored the courts for about 15 years. Then we had the miner’s strike. We had a big rise in unemployment in the mid-’80s. Unions were terrified about keeping hold of jobs, and it was at that point that whether it’s unions or individual workers, they just drifted into using these courts, whereas before they’d been ignoring them.

Now, what that does to a trade union? Again, you say my background was that I worked in unions. I was a national official of unions and now I’m a union barrister. I’ll try not to make this too detailed. I don’t want any listeners to lose interest in the other parts of my argument, but I’ve only conveyed this because sometimes it’s the detail that gets it.

Under the old system, when you didn’t have Individual employment law, if someone was sacked, they were dismissed. And if they asked for their job back, all the stats show that on average they got their job back about a third of the time. That’s because there were strong unions and the employers didn’t want to antagonize them. These days, if you bring a claim to the tribunal from fair dismissal, you can ask not just for money but for your job back, but right now, it is fewer than one in a thousand claims in which the final hearing ends in an order reinstating the worker.

The courts don’t want to force employers to take back workers if the boss doesn’t want it. Workers are worse off, but the real killer is in the unions themselves because in every workplace people do what we call casework. They try and represent one worker and represent them well. They try to learn the law. They try and make themselves like a lawyer and they have to build up this vast amount of knowledge about something which is constantly changing. It sucks away their time. It stops them from doing the things that unions are for. You end up with an essential union membership being sold to members. This is a really bad bargain.

If you give £100 a year and you’re sacked, then you’ll be guaranteed to get a lawyer. Problem is, you can’t possibly be guaranteed to get a lawyer because if you were sacked, it costs a lot more than £100 to represent someone through the system. It costs tens of thousands of pounds. Then unions market themselves to members as a kind of legal insurance scheme that soaks up their budgets, and it turns them into something very different from what they used to be.

That of course is a huge issue because if nothing else, certainly in Britain, unions are our largest voluntary association in the country. Even after years of attacks on them, we’ve still got something like 6,000,000 or 7,000,000 people in unions. Work is such a large part of all we do that to see a social movement vanishing from all our lives has had all sorts of consequences, which people, most of the time don’t even see.

SEAN SPEER: It seems to me that’s a good example of the thesis of the book is that there are inadvertent consequences to an ever-expanding role for government rulemaking and law-making at the expense of alternative forms of social organization, including trade unions.

David, in another essay from June 2022 you argue the following: “We need a different approach in which protestors disregard the law and choose instead to build up instruments of popular power, protest campaigns, movements, and political parties. They would choose mass organizing over submission to the limits of the law.” What does this mean in practice? Are you calling for lawlessness?

DAVID RENTON: [laughs] Well, some of the time, yes. Again, take the example of the environment. One of the really interesting social movements here is something called Extinction Rebellion. Again, I don’t know if you have it in Canada, but what’s fascinating to me is the people who are attracted to it. They’re people who are very often retirees. They’re often people who had quite middle-of-the-road, even maybe like central-right, politics most of their lives, but they really are passionate about the environment.

We call them Teal because they’re green on the environment and blue on the economy. These people are so worried about the destruction of the environment that literally hundreds and thousands of people have been occupying the roads and saying, “The only way we can get the government to really take notes and do all the changes that we’d need—whether in Britain that would mean changing the insulation of our homes, stopping the sale of the cars which produce the most pollutants, whatever—is if people take to the streets.”

The other thing I want to say though, again, because I’m a lawyer, I’m not really saying—like, in Shakespeare, there’s a riot somewhere and one of the protestors shouts, “Kill all the lawyers.” This character’s not a good character; they’re drunken. I’m not really saying, “Kill all the lawyers.” Obviously, I’m one myself, but I think what I’m saying, certainly for lawyers, is maybe you need to have a sense that even the biggest legal victories, the things which you are proud of and which have really changed the law, often they come about because actually there’s a movement on the streets and they’ve changed the conscience a bit. That’s the thing that changes the balance and the arguments in the courtroom.

Again, we could talk about famous examples from American history and the trial of Chicago Seven. Or in Britain, you could even talk about quite a small thing. Like just in the last few weeks it was a huge argument here about flights to Rwanda. I’m pretty confident that the thing which tipped it is that the government kept on one winning on the courts, they won and they won and they won until they lost. One of the reasons why they lost is that there’s just this huge moment.

This is 2022. There are something like 100,000 refugees from Ukraine and Britain, and who’s holding them in their homes? I think generally I wouldn’t be too surprised if it’s more Conservative families than Social Democratic families. It’s the people who really care about their local church and just believe that it’s right that someone should be able to flee war like that on that scale. It’s just public opinion shifted in a really unexpected way. All sorts of people said, “No, actually, we might not be in favour of migrants in general or forever or whatever, but right now we see, we understand why that right exists.” If you don’t have that public opinion on your side, the best legal argument falls flat.

SEAN SPEER: Listeners will know that in a recent episode we spoke to Canadian legal thinker Asher Honickman and one of the issues that we discussed was a change in the Supreme Court of Canada’s interpretation of the Charter with respect to the question of assisted dying. In the early 1990s, the Court didn’t find a right within the Charter to assisted dying, and in 2015 it did. Fundamentally, it seems to me that was in large part a response to its perception of changing popular opinion and the efforts of social activists, so your point about the courts is well taken.

Let me come back to your Jacobin essay. You write, “The task for the Left is to find a way of talking about the law in which we take seriously the ideal of human freedom without forgetting for a moment that every right exists only because people fought and died for it.” Why do you think that parts of the modern Left have forgotten this point? How much of is explained by a modern complacency and how does the rise of social media play into that story? To what extent are modern progressives, like many modern conservatives, involved in a form of play activism online?

DAVID RENTON: Well, there’s definitely some of that. You can look on both sides of British politics and just feel sometimes you’re watching battle reenactment societies. We’ve got a Conservative election right now, and everyone’s trying to summon the ghost of Margaret Thatcher, and she’s been dead 32 years. Well, she’s been out of office for 32 years. It just won’t work. She engaged with British voters at her time for certain reasons, and a lot of those reasons like low inflation, then high inflation, change the arguments now. None of those politicians crossed that.

Definitely, too much social media encourages an attitude where you crowdfund rather than organize a crowd. I also think, one of the things I want to talk about is I’m not trying to say people on the Left are stupid or foolish for making these mistakes. I think part of what’s going on—and this goes back to the example I gave in the context of employment. You said, “Why on earth is the Left suddenly very blind to what’s going on with rights?” One of the reasons people are I think is because actually, we’re very familiar with rights being used in a way that doesn’t seem to produce more democracy or at least more social democracy.

When we had the big transformation formation in British life here away from a very collective and solidaristic society to a much more individualistic one, a key moment in it was changes in housing, which were called the right to buy. That’s created a popular cynicism about rights and a disbelief in them and a kind of real difficulty.

I think this is true on both sides of the political divide. There’s a real difficulty in grasping what’s actually of central importance say about free speech and what’s just a bit of partisan posing about it and there’s actually just people almost misusing it. That sense of focusing on the part of this, which really matters and which actually about 90 percent of people, whatever side they’re on, get, is something that’s really worth keeping.

SEAN SPEER: Now, David I need to ask a question on behalf of our conservative listeners. A key premise of the book is that left-wing ideals are being undermined in this hyper-legalistic system. Yet many conservatives would say that on matters of race, culture, and identity, the Left is massively winning the so-called culture wars. Make the case that they’re wrong and you’re right about that the fact that the Left is effectively losing.

DAVID RENTON: Again, I come back to Britain. What are the culture wars about? If they’re about abortion, I don’t think the Left’s winning. You say that the Left’s winning culture wars on race. I don’t know, it feels to me the whole thing about a culture war is that it’s not a battle that either side can win. In a sense, it’s a bit like the law. Someone might be accused of murder and that individual might be convicted or acquitted. There’ll be a result for them, but over the end of time, the whole point of the law is not to win arguments but to keep them frozen in place. I think the same is actually true with culture wars too. The point of the culture wars, it seems to me, is really to get people who hold my sorts of politics shouting at your conservative listeners and actually very little changing and all of us being cross with each other.

Left-wing voters aren’t the problem, right-wing voters aren’t the problem. If we’re worried about climate change, the problem isn’t voters, the problem is that we’ve got a bunch of companies, the old companies that hold enough interest in the world’s oil that they can boil it, they can burn it, till we go well over two degrees. When Roe v. Wade was overturned I remember looking at the pictures of the crowds in America and you’d see one set of people shouting at another set of people and they’re both convinced that in that room the obstacle to all their desires is the person on the other side of that line with these two people shouting each other.

I’m sorry, I just don’t believe that. That’s not why our social movements are losing. There are other phenomena that mean we’re both losing. The disappearance of the rich out of the tax system, which means there’s not enough money to go around. Those sorts of things to me are much bigger problems than the fact that someone has their own opinions on whatever x-issue. I might disagree with them, but they’re not the enemy. They’re not the problem.

SEAN SPEER: Let me ask you a final question, David. How would things change under your vision? Would we have a less polarized politics or actually a more polarized politics? If the latter, can you make the case for why that’s actually a healthy political development?

DAVID RENTON: I hope that, from what I’ve been saying, I’m really not an advocate of this internal sides-based polarization between Left and Right, which seems to me a zero-sum game when faced with the social problems of the age. The problem is we need to find a way to those answers. Fifty or a hundred years ago if we had a problem, say smoking, we worked out an answer to it eventually. We made it much harder to the point where it wasn’t killing nearly as many people as it was.

If we had a problem, say a hole in the ozone layer, even that was about 30 years ago, we managed to fix it despite the polarization. I really worry, for example, about the environment that the polarization will in fact mean that we don’t solve the problem. You could be a liberal, you could be a conservative, and neither of you is going to gain if the world’s heating beyond redemption.

I really don’t think it’s about calling for more polarization. What it’s about is just saying I don’t think that the law has to grow forever. There are some things in society that actually do need to grow forever like science. Science just needs to grow and don’t put any limits on it. Maybe free speech is one of those things too. Just let people speak, let them talk themselves out on both sides. The more speech, the better. But the law isn’t like that. You create laws for a purpose and you can actually reach a point in society where you just have too many of them. You reach that point and then all the other things you want to do, they don’t really happen either.

I’m not saying this is the main part of the problems of all our lives. We have plenty of other problems too, but this is one part of it. We never talk about it; we never see it. Just don’t naturalize the law. Don’t just assume it’s there in all its enormity forever. We should be thinking, “What are the laws we’re going to need in the world in 10, 20 years’ time, which is going to face some problems much more acute than the problems we face right now?”

SEAN SPEER: David, I said, that was my final question, but if I may just slip one in response to your answer because I think it’s such an interesting observation. You gave the example of the progress that has been made on smoking, not just in Britain but really across the advanced world. In your framework, how would you explain that progress? What’s the interrelationship between social attitudes and the law? In other words, was it social attitudes reflected in the law or was it the law, using George Will’s phrase “statecraft is soulcraft”, that actually influenced social and cultural attitudes about smoking?

DAVID RENTON: Listen, smoking may not be the best example for me. First of all, I really don’t know. I know some of the histories of campaigns in America to resist the demand and that there needed to be regulation of smoking. I don’t know. I don’t have nearly a strong sense of where the demand for the regulation of smoking came from, so it may be that smoking’s a counter-example.

It’s certainly true anyway—I’m really not disagreeing with the other point you’re making, which is that just in general terms, it really is the case that sometimes legal changes can transform public opinion. That’s something I’ve seen repeatedly in my lifetime, that things which public opinion said in a certain balance, this is good or bad, the law changed and public opinion slipped to meet it if those laws connected to something which people wanted and thought.

Both those points aside, I think you should come up with a much larger list of examples of the law changing because social movements demanded it. I really don’t know if that was true, for example, with smoking. The other example I gave was talking about addressing the problem of the hole in the ozone layer, which we did as a society. We addressed it really quickly.

Now I defy anyone to disagree with me that the reason why we address that as societies is because a generation of environmentalists spotted the problem, science backed them up, and that movement, such as it was, that combination of people’s desire of seeing the problem, knowledge seemed to be on the side of the people who made that argument. That’s why it shifted because there was, maybe not a huge, but certainly a real, movement demanding that politicians take action.

I think that’s the general picture. I’m not saying it’s the universal picture, but that’s the general picture. Rights come about because people argue for them. What I’m saying is once we’ve got them, we need to keep on reminding ourselves of why they exist. If something was a huge social liberation for people at one moment in history, that doesn’t always mean that it has the same consequences 100 or 200 years later.

SEAN SPEER: Listeners looking for a good reminder in this regard, I’d strongly recommend they read Against the Law: Why Justice Requires Fewer Laws and a Smaller State. David Renton, thank you so much for joining us today at Hub Dialogues.

DAVID RENTON: Oh, that’s been a huge pleasure, Sean. Thanks so much for asking me.