“The People’s Business,” Puerilities, and Pallas
By Peter Linebaugh
(get the PDF)
In Paris during the French Revolution the neighborhoods organized themselves by forty-eight different sections, and the section became the basis of the people’s power at the grass-roots. In Russia after 1905 the grass-roots organized themselves in soviets, and these then became the basis of power in 1917. In England during the Puritan Revolution of the 17th century the people gathered together in congregations. Political theorists call this the constituent power; it is the power of the common people prior to making a political constitution. Not long after the conclusions of such upheavals in England, the authorities passed the Riot Act (1714) in an attempt to limit such unpredictable, unauthorized, public gatherings of people to less than twelve. (Does this explain the number of people on a football team?)
A Guyanese fresh-fruit drink seller expressed this popular sovereignty in action very clearly when some years ago we marched through the public farmer’s market in Toledo, Ohio, in a noisey demonstration on behalf of Mumia Abu Jamal. “What right have you to be here?” demanded an irate stall-holder, and our newly-found mangove drink friend answered, “the People’s business” and smiled. There was a touch of irony in his expression as he uttered these words which arose from memories of struggle in Guyana whence he summoned up this bit of rhetoric. It stirred something in us as well, for in a twinkling we clamored on top of some vegetable crates for a little market-place oratory to denounce racism and capital punishment by means of class analysis. A small crowd began to gather, but between the hostility of one or two nasty merchants and the police, ever grateful for something to do, the “People’s business” could not go much further on that day. Future meetings were held in friendly churches: R.S.V.P., as Tom McGrath used to say, inviting you to the “Ramshackle Socialist Victory Party.”
The clerical pulpit and the politician’s rostrum have again emerged as places of discussion in the Democratic Party nomination process. Few expect that these are places of the transaction of “the People’s business,” indirect democracy at best. The corporate media are the “ugly mirrors” which the anthropologist and direct action activist, David Graeber, has described as the means to make us believe that we’re incapable of self-government. Hollywood, TV, even school text-books confirm the danger of direct democracy as “mob rule.” (Even a football match becomes a “riot”.)
David Graeber asks “Is it possible for those trying to develop decentralized forms of consensus-based direct democracy to reclaim the world? If so, how will we ever convince the majority of people in the world that ‘democracy’ has nothing to do with electing representatives?” He refers to remarkable convergences of practice in recent years. Dutch squatters, anti-eviction activists in South Africa, Zapatista communities, unemployed piqueteros of Argentina. He sees in these a project of recuperation, finding democratic process without the coercive mechanism of the state. Where it is not an ideological project but part of the habitus of the movement. He has a broad range of examples: Swedish ting, native American councils, African village assemblies. Each of us can make a list. I’d certainly add the popular assembly of the people’s of Oaxaca, or APPO and of course the entire experience of the Zapatistas (1994) who raised the International of Hope against the International of Terror. (Esteva, 43) They began a process of re-membering our indigenous history as our shield and buckler against the dis-membering of neo-liberalism.
There is a contradiction between the coercive mechanism of the state and the procedures of listening to everyone and building agreement. This is the contradiction that was exposed in the 1968 Democratic convention in Chicago when the Mayor Daley’s infamous “blue meanies” went haywire, pummeling young people, activists, delegates, reporters alike. Since, then each part has become more sophisticated, the democrats more concerned with process, the delegates hidden behind the police, the law, and the state which now has the media totally prone, embedded, and tucked in. Together they produce “ugly mirrors.” The conflict between police and street activists has developed rapidly since then – with gas, razor wire, temporary lock-ups, bicycles, cell-phones, video cameras altering the techniques of contest – while the political essence remains the same: direct democracy versus indirect representation (so vastly corrupted).
The strengths of direct action network include a) affinity group structure, b) the consensus process, c)innovative popular education techniques, d) the radical critique of capitalism, and e) the formation of indymedia networks. At Seattle trainings were held on nonviolent direct action, medical support, puppet building, theater skills, legal rights, the spoken word, music and dance, and techniques such as banner drops and body blockades. Tactical teams and strategy circles were formed. High importance was placed on direct democracy, or the experience of consensus building even in the street intersections with state violence imminent. Naomi Klein called it hub-and-spoke organization; others likened it to a spider’s web, or to a many-headed Hydra, or to a school of fish. The strengths were indeed startling, and the shortcomings all stemmed from the absence of a community base. (Yuen, pp. ) Despite the shortcoming David Graeber concludes that democratic improvisation arises when “diverse sorts of people with different traditions and experiences are obliged to figure out some way to deal with one another.” (Graeber, 356).
These experiences, these experiments, were severely curtailed by 9/11 and the subsequent measures of the ‘national security state’ or dictatorship: the impatient disregard of habeas corpus, the arrogant organization of command, the shameless advocacy of pre-emptive war, the bombastic proclamation of endless war, the leering defense of torture, the triage of entire cities, the pretence of delivering constitutions to others while destroying the constitution at home, the foreclosure of shelter, the privatization of water, the défrichement of forest, the planning of starvation, the devalorisation of work, the malign neglect of the imprisoned, the elevation to the judiciary of intellectual ruffians, deliberate diffusion of fear and trembling throughout society, the base falsehoods against the Four Freedoms, an official politics of scepters and an unofficial one of electronic funds transfer.
It so happened that on 3 December 2007 the publisher sent me a copy of my book, The Magna Carta Manifesto: Liberties and Commons for All in which I sought in an ancient portal to find an emergency exit from our dire and barricadoed times. The chapter 39 of Magna Carta, often quoted, sometimes carved in stone at courthouses, “No free man shall be seized or imprisoned … except by the lawful judgment of his peers or by the law of the land.” A key perhaps to the door of mutual aid and direct democracy can be teased from the term “peers,” often better translated as “equals.” Certainly they express a countervailing power to the King.
You see it in the architecture of the court room: one axis has the judge and the prosecutor at ends of a pole, both paid by the State, and the opposite axis has the defendant and the jury facing each other, unpaid. The antagonism can be described in various ways, as the State versus citizens, as the rulers against the ruled, even as the well-paid versus the poorly paid, sometimes as outsiders versus neighbors.
I quoted only part of chapter 39 omitting what is signified by the three dots. Here is what is left out by that ellipsis: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed, or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his peers or by the law of the land.” More than imprisonment is protected in these clauses. The realm of material production is here too, for standing or status, possessions, and rights may be construed to refer to subsistence.
Bear with me a moment. We can relate chapter 39 to chapter 7, which provides the widow with her reasonable estovers in the common. Or, if we examine the little charter, the Charter of the Forest, and inseparable companion to Magna Carta, then we find that this principle of neighborhood is stated in the first chapter, “all forests … shall be viewed by good and lawfull men.” The rangers, the walkers, the foresters, the verderors held swanimote courts. They watch the vert and venison, they’re guardians of the “greenhue.” Freeman are not to enclose the forest, or arable ground, nor annoy the neighbors. The jury and jury-like progenitors were essential to the process of subsistence commoning.
The jury was dear to Edward Thompson, the peacenik and influential social historian. He wrote, “The jury is a very ancient creature … It is also a very odd beast…. It is less an institution than a practice.” Thompson sees it as theatre, playing to a public out of doors; he sees it as a lay presence conferring legitimacy to authority. The mysteries of law must be broken down into lay language. It must appear rational and humane. (Thompson, 1980) As a practice it is a place where the fingers remember the melodies when the mind may have forgotten.
We think of the jury as rendering verdicts in criminal cases, “Guilty” or “Not Guilty.” In its origins it adjudicated other kinds of disputes, especially concerning the commons, or the usufructs of the land. This entailed issues of both production and consumption. The option of the jury trial was “putting oneself on one’s country,” to use the medieval expression, and it was still a technical formulation at the time of industrialization.
What about industrialization, you may ask? How could a jury supervise it? What about shop-floor democracy? Or the results of self-activity? Here consensus is built at lunch-time, or at the neighboring pub or bar. It is a way of cutting through red-tape, bringing the grievance process into the hands of the victimized, its importance after World War II clearly outlined by an auto-worker James Boggs in The American Revolution, or during the 1960s in Bill Watson’s “Counter-Planning on the Shop-Floor,” or Huw Beynon’s Working for Fords. Here one ‘puts oneself on one’s shopfloor’ so to speak. In other words you submit to the judgment of your peers, a judgment which adheres to habit, local mores, usages, or custom, in addition to law. As De Tocqueville wrote,“Laws are always unstable unless they are founded upon the customs of a nation: customs are the only durable and resisting power in a people.”
Edward Thompson defended the jury with that savage irony he learned from Swift. “The quaint archaic notion that anyone –randomly selected – might be able to perform a human-sized office or role.” “Only a crank could possibly suggest such a direct exercise of democracy today.” We have many of these cranks now.
Let’s see… there was the court leet. And then there was the swanimote court. There was the jury of matrons. The court leet, or sometimes simply “the leet,” was a manorial court, and a precursor of the modern jury. Court leet could present tenants for wide range of offences, it took a “view of the frankpledge,” or ensured that every man over twelve years of age was in frankpledge, it enforced the assizes of bread and beer. (Cairns, 66) it could find facts and declare the custom of the region. Frankpledge was the system by which every member of a tithing was answerable for the good conduct of, or the damage done by, any one of the other members. Frankpledge was thus a system of both mutual aid and mutual responsibility. All men over the age of twelve belonged to it. The “view of frankpledge” resembled an assembly.
It might be helpful to mention a few examples of the judgements of court leet.“The jurors present that Alan Rushpiller, John Kiggel, William Godloke habitually collect bittern eggs and export them out of the fen to the great destruction… [&c.],” or that “William Fisher sold 500 of sedge outside the commune,” or, “that the Brethren of the Hospital [of St. John] have pastured their sheep in autumn before the gleaners against the by-law and that the said Brethren keep two dogs which run into the lord’s warren which give rise to suspicion”
Here is Thompson again, with his fine rhetorical irony. “It is an old story of a certain inconvenience in our legal system. Time and again, when judges and law officers, mounted on high horses, have been riding at breakneck speed towards some convenient despotism, those shadowy figures – not particularly good nor especially true – have risen from the bushes beside the highway and flung a gate across their path. They are known to historians as the Gang of Twelve.” (Thompson, 1980, 107)
Let us add to this de Tocqueville’s stress on the educational function of the jury. “The jury contributes powerfully to form the judgment and to increase the natural intelligence of a people; and this, in my opinion, is its greatest advantage. It may be regarded as a gratuitous public school, ever open, in which every juror learns his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even the passions of the parties. I think that the practical intelligence and political good sense of the Americans are mainly attributable to the long use that they have made of the jury in civil causes.” (De Tocqueville)
If the criminal trial jury dates back almost 800 years as a check on the King, it dates 350 years as a check on the judges. Let us take the case of Free-Born John Lilburne who in 1653 referred to “his honorable Jury, and said they were the keepers of the Liberties of England; and will make it appear that the Jury are Judges of Law as well as of the Fact.” He closed his defense, “You judges sit there, being no more, if the jury please, but ciphers to pronounce the sentence, or their clerks to say Amen.” This is the putting the judge in his place. Thompson explains: “The jury box is where the people come into the court: the judge watches them and the jury watches back. A jury is the place where the bargain is struck [between the state and the people]. The jury attends in judgement, not only upon the accused, but also upon the justice and humanity of the Law.” (108)
In 1670 William Penn gathered a crowd speaking truth to Power in Gracechurch Street, London. Power imprisoned him for it. At his trial one of the jurors, Bushel, refused to convict him of a crime. The judge said of the hold-out,“I will cut his nose,” but lost onj appeal. Horne Tooke, Thomas Hardy, and John Thelwall were acquitted by sedition in 1794, and their jurors were feasted and toasted all over town, their independence commemorated in tokens and medals. In O’Coigley’s case (1798) one of the prospective jurors shook his fist at the Irishman cursing him as a damned rascal, but the judge did not determine that such blatant partiality or“unindifferency” was grounds for dismissal, and O’Coigley hanged whilst defiantly and pointedly peeling an orange. The parodist, William Hone, was acquitted in 1817 also the year of trial for treason of the workers who led the Pentridge Rising: a spy wrote the Home Office of Thomas Bacon, an old Jacobin, “Old Bacon has been telling the prisoners they are not tried by their Peers but by men of property,” William Cuffay, a son of a slave, black tailor and English Chartist leader in 1848 was transported to Australia despite his protest that the “jurors were not his equals as he was a journey-man mechanic.”
It is always a fight to determine who is a peer, who is an equal? Pauli Murray led the struggle to prevent discrimination against women on the jury pools. If the modern jury is mainly middle-aged, middle-class, and middle-minded, to paraphrase Lord Devlin, it need not remain that way. The wise defense attorney serves “the Gang of Twelve” with all due respect. In a society so riven between rich and poor the concept of an “equal” is fairly foreign in the court room.
After the French Revolution was defeated Henry Kissingesr’s favorite period of history commenced, the conservative reaction, a period of Church, King, and Banks – such destruction! such slavery! So in 1816 interest in the jury resumed as we find in Jefferson, de Tocqueville, and Shelley. It preoccupied Thomas Jefferson after he left public life. “Divide the counties into wards,” he wrote. These were “elementary republics” or “little republics” in which the voice and vigor of the whole people could be directly expressed. (Arendt) In 1835 Alexis de Tocqueville said of the American jury that it “places the real direction of society in the hands of the governed.” (De Tocqueville, Book 1, ch. 16) “The jury system as it is understood in America appears to me to be as direct and as extreme a consequence of the sovereignty of the people as universal suffrage.”
De Tocqueville wrote, “The institution of the jury may be aristocratic or democratic, according to the class from which the jurors are taken; but it always preserves its republican character, in that it places the real direction of society in the hands of the governed, or of a portion of the governed, and not in that of the government. Force is never more than a transient element of success, and after force comes the notion of right. A government able to reach its enemies only upon a field of battle would soon be destroyed. The true sanction of political laws is to be found in penal legislation; and if that sanction is wanting, the law will sooner or later lose its cogency. He who punishes the criminal is therefore the real master of society. Now, the institution of the jury raises the people itself, or at least a class of citizens, to the bench of judges.” De Tocqueville also observed that “If an oppressive law were passed, liberty would still be protected by the mode of executing that law; the majority cannot descend to the details and what may be called the puerilities of administrative tyranny.”
In 1820 P.B. Shelley started to write an essay called “A System of Government by Juries” – maybe the word system deterred him from finishing – but we have a fragment which begins, “Government, as it now subsists, is perhaps an engine at once the most expensive and inartificial that could have been devised as a remedy for the imperfections of society. Immense masses of the product of labour are committed to the discretion of certain individuals for the purpose of executing its intentions, or interpreting its meaning. These have not been consumed, but wasted in the principal part of the past history of political society.”
Something about Shelley’s prose causes you to stop and think. For him too: he began to think and then stopped, hence the fragment. There are just three sentences here. In that first sentence government is compared to a machine, a telling comparison in his age when various machines were introduced in order to destroy the apprenticeship system, the living wage of textile workers, the careful and autonomous domestic rhythms of work, and the standards of production. Comparing government to machinery, he implies that government too did much the same – dumbing down the children, introducing starvation wages, speeding-up production under industrial work-discipline, and beginning the production of shoddy. The powerful critic of the period was Captain Ludd. What does he mean by “inartificial”? It means not in accordance with artistic principles, rude and clumsy, not produced by constructive skill or technical art.
The second sentence turns on the pronoun “its” because its antecedent may either be labor or “certain individuals”. He refers to taxation and surplus value. The word labor at that time in the discourse of political economy stood for money or the entire the social product. The mass of surplus value was at the command of a single class of capitalists. Then with the third sentence he proposes that we understand that all political history suffered from the identical expropriation by the state. This is part of the tremendous anarchist daring, the profound radicalism, of Shelley.
Shelley exiled himself from England, once to Ireland another time to Switzerland and Italy where he heard in horror of the Peterloo massacre of the artisans, the women workers, and the children who were meeting to hear a speech by the orator Henry Hunt advocating Parliamentary reform. Perhaps his piece on the jury was a fragment because Shelley wondered about direct democracy, while the movement for democratic representation (indirect) was being slaughtered. Shelley wrote the fragment on the jury while intensely thinking of political reform. He wrote about poets: “They are the priests of an unapprehended inspiration, the mirrors of gigantic shadows which futurity casts upon the present; the words which express what they conceive not; the trumpet which sings to battle and feels not what it inspires; the influence which is moved not, but moves. Poets and philosophers are the unacknowledged legislators off the world.” His fragment on the jury was thinking about something he could not yet name.
In he 18th century Blackstone said that the jury was the palladium of liberty. Junius disagreed: he said free speech was the palladium of liberty. Habeas corpus was also a strong contender for the prize. But what is it exactly? We are talking about the goddess here. When Ilus founded Troy he prayed to Athene who threw down from heaven, a palladium. The palladium was an image of a woman with a spear in one hand, the distaff and spindle in the other, and the aegis wrapped around her breast. Athene named it after her dead Libyan playmate, Pallas. Pallas was African; she helps us understand “black Athena.” You dig far enough and you’ll find yourself back with the Mother Continent. Touch the woman, touch the rock. “Preserve the Goddess who fell from the sky, and you will preserve your city,” said Apollo. Thus, the palladium is that upon which the safety and health of the nation/city depends. Liberty: Africa: the Jury. The palladium is a wreck.
Well, almost. On the very same day that Magna Carta Manifesto came back from the publisher, last December 3rd, I left the public gallery of the trial of Dr Catherine Wilkerson having heard the verdict. The eloquent defense lawyer, “Buck” Davis, had rested the case urging the jury to reject the prosecution’s case. She had come to the aid of a man knocked down and knocked out by police as he was expelled from a meeting where he had been holding a sign protesting an advocate of further war from Iraq to Iran.
Buck defended her on the grounds that in detaining Dr. Wilkerson by wrenching her arm in a hammer lock behind her back, exacerbating a pre-existing shoulder rotator-cuff condition, he was restraining her speech. The first amendment was violated, said he, and he called it “the criminalization of speech.” But what was the speech? There were two kinds: the speech of a doctor to a paramedic advising proper medical treatment; and the speech of a university crowd opposing the arguments of nuclear war against Iran.
The behavior of all these men-in-uniform was consistent with a disturbing national trend, the policing of public lectures. Certainly this was the overall context of the arrests, brutalities, mistakes, and malpractice of the uniformed personnel. The police officers of the municipality, in circumstances allied with the fire department, with the private armed forces of the university, and with the private paramedics, actually superseded the human authority, recognized throughout the world over perhaps two millennia, of a physician in her act of administering life-preserving instructions.
The prosecutor preserves order, the academic transmits truth, the physician provides health. We have well-developed and time-tested habits of mind, protocols of action, and courtesies of respect to assure that these goals are sought harmoniously, as together they comprise community. When these habits, protocols, and courtesies are upset, corruption ensues to our entire habitus. If the punitive impulse supersedes the educational impulse, or, even worse, if the punitive impulse supersedes the medical impulse, another balance in a community already at war is destroyed.
Recall the origins of the Red Cross, which arose in the midst of the slaughter of battle to provide alleviation of human suffering. In 1859 Henry Dunant witnessed 40,000 dead, dying and wounded strewn moaning and twitching on the field of battle of Solferino. He and the local population cared for the wounded without discrimination. The soldier lay down his arms, the healer picked up the stretcher. Each is trained to the respective task. When the cry of pain is uttered it is time for the guardians of public order to restrain the punitive impulse and to let the doctor do her ancient task, heal the wounded.
It is the one easiest to grasp of course by dint of constant repetition. Neighborhood, or human solidarity, is more difficult grasp. Yet it is what we yearn for and fight for. The substance of the speech is what is contested. In one case it may be opposition to pre-emptive war, in another it may be the right of return, in a third opposition to nuclear bombs, and in this case the provision of medical care.
Buck Davis defended Dr Wilkerson against the “criminalization of speech” and “the criminalization of medical treatment,” the content of the struggle and the substance of the speech. May the police stop the provision of medical treatment to an injured man? Which is to prevail, the principle of healing or the principle of coercion? Which is paramount, the law of force or the principles of diagnostics and therapeutics? When the weak, the injured, the powerless, the aggrieved begin to find strength in their numbers, to find health for injuries in the kindness of strangers, to find redress for grievances in the mutualism of ‘one for all and all for one’ then the patriarchal rule of Caesar is threatened. For statesmen no condition is worse.
In the Roman Empire Samaria was considered a place of iniquity. Samaritans still live in Nablus and Jaffa. Once it was the capital of an Assyrian province. Samaritan and Jew hated one another, an apparent assumption of the parable described in Luke 10:30-7. “What is the law?” the lawyer asked the carpenter’s son of Nazareth whose terse answer, “to love your neighbor as yourself,” only brought another question from the wily lawyer, “And who is my neighbor?” The Legislator of Man replied by telling the story of the man robbed, beaten, and left half dead by the way side, who a priest and Levite avoided by passing to the other side of the road, but a Samaritan was moved to pity, so bandaged the wounds, bathed them with oil and wine, lifted him onto his animal, and brought him to an inn for care, giving the innkeeper two silver pieces promising more on his return. The story tells us both who is a neighbor and what is a neighbor.
From Dr. James Parkinson to Dr. Che Guevara to Dr. Benjamin Spock physicians have understood that the health of the individual is inseparable from the health of society. If society is dependent on exploitation (slavery, wage-slavery,“the poor are always with you”), then ill health becomes inevitable, and some even argue that it is necessary as a stick to beat the healthy just as unemployment beats down wages. The public health movement arose to oppose that view. The criminalization of medical treatment that was brutally attempted in Ann Arbor was thus part of the privatization of health care generally and the devaluation of the class of people who work or who must be ready to work, men, seniors, women, children, immigrants.
There is thus a link between the jurors and the physician. The link between Dr Catherine Wilkerson and the jurors sitting opposite her express a profound relation of neighborhood on the one hand and healing on the other, neither depending on police, law, or judge. This is why the jury returned a verdict of not guilty, and the puerility of administrative tyranny was properly chastised.
The jury makes us think “small.” We cannot be grand theorizers. The jury forces us to think “local.” We cannot be universalists; we belong to a neighborhood. The jury forces us to think “slow.” Consensus can take a long time to build. The jury is random. It is chosen by lot, one of the oldest methods used to choose individuals for disagreeable tasks. The jury is anonymous, and it is collective. The jury is a consciousness-raising group. Jury deliberation is not a balancing of interests, as in possessive individualism, but a means of asserting communality and constituting subjectivities. Can it become, as of yore, a means of commoning? Can we finish the thinking which Shelley began? Can we restore our palladium from the inhuman wreckage of privatization by participatory democracy and prefigurative politics?
– May 2008
Massimo De Angelis, The Beginning of History: Value Struggles and Global Capital (Pluto Press: London 2007)
Hannah Arendt, On Revolution (Viking: New York, 1965)
John W. Cairn and Grant McLeod (eds.), “The Dearest Birth Right of the People of England:” The Jury in the History of the Common Law (Hart: Portland, Oregon, 2002)
Alexis de Tocqueville, Democracy in America, translated by Gerald Bevan (Penquin: London, 2003)
Gustavo Esteva and Madhu Suri Prakash, Grassroots Post-Modernism: Remaking the Soil of Cultures (Zed Books: London & New York, 1998)
David Graeber, Possibilities: Essays on Hierarchy, Rebellion and Desire (AK Press: Oakland, 2007)
Robert Graves, The Greek Myths, 2 volumes (Penguin, London, 1955)
Peter Linebaugh, Magna Carta Manifesto: Liberties and Commons for All (University of California Press: Berkeley, 2008)
C. Douglas Lummis, Radical Democracy (Cornell University Press: Ithaca, 1996)
Pauli Murray, Song in a Weary Throat: An American Pilgrimage (New York: Harper 1987)
P.B. Shelley, A Philosophical Review of Reform (written in 1820) in David Lee Clark (ed.), Shelley’s Prose (University of New Mexico Press: 1966)
E.P. Thompson, “In Defense of the Jury,” Persons & Polemics (Merlin Press: London, 1994)
E.P. Thompson, “The State versus its ‘Enemies’,” Writing by Candlelight (Merlin Press: London, 1980)
Eddie Yuen, George Katsiaficas, and Daniel Burton Rose (eds.), The Battle of Seattle: The New Challenge to Capitalist Globalization (Soft Skull Press: New York, 2001)