Reviewed by Roger A. Shiner, Department of Philosophy, University of British Columbia Okanagan and Okanagan College. E-mail: roger.shiner [at] ubc.ca.
Michael Head is Professor of Law and Director of Research in the School of Law, University of Western Sydney in Australia. As Head puts it: “this volume reviews in some detail what are generally classified as crimes against the state or against the nation – subversion, rebellion, treason, mutiny, espionage, sedition, terrorism, riot and unlawful assembly – in several comparable countries with English-derived legal systems, primarily the United Kingdom, the United States and Australia” (p.1). Canada and New Zealand get some mentions as well. The structure of the book is straightforward: an introductory chapter on “What are “Crimes against the State?”, two chapters to whet the reader’s appetite on the historical origins of the received legal doctrine in the U.K., and on the readiness with which in the U.S., despite a fervent ideological and constitutional commitment to free speech, the latter has been regularly thrown under the bus to protect political power. Then there are seven chapters discussing the individual crimes against the state, and a concluding chapter summarizing Head’s findings.
Methodologically, the book is legal history, a history of the way that the doctrinal category of “crimes against the state” has been used in courts of law in the past few hundred years in the countries in question. However, the book is legal history of a particular kind – legal history with a specific political orientation and theoretical basis. Head puts his cards on the table early on. In a subsection of Chapter 1 beginning on page 5, “Conceptualizing Crimes Against the State”, we meet in short order Engels’ analysis of the nature of the state, Lenin’s views on the undemocratic character of contemporary democracies, Trotsky’s account of how states behave in times of economic crisis, and Pashukanis’ account of the essentially economic nature of the state. The essence of law, Head asserts, is for it to be “ultimately a reflection of the interests of the most powerful in society” (p.7). Legal doctrine is never applied neutrally: “prosecutions of crimes against the state have been intimately bound up with the political agendas and requirements of those wielding power, both legal and socio-economic” (p.1).
Politicized analyses of the law are in themselves not news. Head makes two claims for the originality and importance of his book – first, that there is no other book examining systematically the concept of crimes against the state; second, that these crimes as crimes receive very little attention in conventional criminal law treatises. As far as my experience goes, he is correct in these claims. Head also makes a further, more specific, claim to originality in that, in contrast to other scholarly analyses of crimes against the state, he has identified two previously unnoticed recurrent patterns in the historical record – that “the authorities and the courts have regarded perceived threats to the established order to be far more serious when they (1) involve the working class and (2) call into question the right or ability of the state to mobilise armed force, including the military, to put down civil unrest” (p.22). In particular, throughout the book, as befits a legal scholar, Head emphasizes the complicity of the courts in the processes of repression and oppression he discusses. In a sense, one would expect any actual government to find it hard to be impartial about deciding when there is a threat to the national interest, or a crime committed against the state. But courts are allegedly “forums of principle”, to use Ronald Dworkin’s well-known phrase, and surely we can expect to find impartiality there. Sadly, not so, according to Head’s analysis. It goes without saying that there are regular references to the behaviour of governments since September 11th 2001, and the effect of the global economic crisis of 2007 on how governments conceive of national security.
In a short review I can do no more than give the flavour of Head’s approach and analysis. I will set out the argument of one chapter to serve as an example, Chapter 3 on Insurrection, Rebellion and Unlawful Association. The chapter begins (pp.65-68) by reviewing the historical basis for a people’s right of revolution. However, Head points out (p.68) the essential contradiction that this right has always existed alongside a presumed right of self-preservation on the part of the state, and so has been less effective than one might think. In recent history (pp.71ff.), Head argues, the right of revolution has been used to uphold the legality of various military or military-backed coups, with an eye to the protection of underlying economic interests. On page 75 he turns to insurrection and rebellion. He discusses the overtly political character of the use of the terms in the English Civil War in the seventeenth century (pp.75-76). He discusses (pp.76-77) the sweepingly broad language of the U.S. statutes criminalizing those who advocate the overthrow of the government. He highlights their use to suppress the Socialist Workers Party and other advocates of revolutionary Marxism. On page 81 Head turns to Australia. He discusses the prosecution of the participants in the Eureka Stockade miners’ rebellion in 1854, and argues that clearly the courts here were acting simply as agents of the government. Pages 85ff. deal with unlawful association. He begins with the use in the U.K. at the end of the eighteenth century of unlawful association legislation to prohibit the formation of workers’ unions. As unions over time became acceptable in the U.K., prosecution of workers for union activities simply proceeded under other names. In Australia (pp.87ff.), far-reaching unlawful association legislation persisted until 2010, when it was replaced by essentially even wider discretionary powers. Again, the language of the legislation is analyzed to demonstrate its sweepingly broad character. Pages 90ff. give details of the use of the powers under the legislation in the first half of the twentieth century against unions, and the way that the use of concepts drawn from Marxism was straightforwardly equated with having as an objective the overthrow of the Constitution and the existing structure of government. Pages 93ff. discuss Canada. Head shows how unlawful association was added as a crime to the Canadian Criminal Code in 1919 as a response to the Winnipeg General Strike, how the legislation was used to harass communists in the 1920s and 1930s, how even though the section of the Code was repealed in 1936 other sections took up the slack, and then finally how the legislation was used as the basis for the suppression of dissent provisions in the War Measures Act used in 1970 during the Quebec October Crisis.
How should we evaluate Head’s book? In one sense, it is repetitive and tough to read, more like reading an encyclopedia than a narrative work. On the other hand, here is an approving comment from the back cover: “a much needed historically-grounded review of state oppression. Framing the analysis in the context of upper class control of the state, Head presents statutory repression of human rights and democracy as directly linked to political power and the protection of capitalism and private property”. This comment is descriptively accurate – that is exactly what is going on in the book, with the particular angle that the “statutory repression” in question is repression by means of statutes defining crimes against the state. The comparative dimensions is interesting: non-Australian readers will learn much about the political and legal history of Australia that they did not know before.
The book, though, is very one-sided. As a philosopher, I was naturally intrigued by the idea that (in his words) Head is going to give us “the essential nature” of crimes against the state, and is going to “conceptualize” them for us. And so in a sense he does, but in a strictly normative sense, not an analytical one. Moreover, there is no pretense at a fair and balanced account. The book is a rant – to be sure, an academic rant, but with all the objectivity of a Fox News exposé, albeit from the opposite end of the political spectrum. That is inadequate for a claim of essence. A person is entirely entitled to give a political reading of history, one then subject to the judgment of historians. A person of a deterministic tilt might even argue that such and such is inevitably the course of history. Both of these are different from claiming that things could not be other than they are because otherwise they would not be crimes against the state. Take for example Jeremy Waldron’s recent book on these matters (Waldron 2010). From a civil-libertarian perspective, Waldron has many things to say about what governments should not do with respect to terrorism, security and the like – things with which as far as they go Head may well agree. But Waldron also (see especially Chapter 2) lays out a possible normative shape for appropriately reconciling national security and civil liberties. Or take David Cole’s recent essay (Cole 2012) on Presidents Obama and G.W. Bush. Again, Cole has plenty to say by way of showing that civil-libertarians can find much to criticize in Obama’s decisions and policies on national security since he took office. But, Cole argues, Obama is no Bush: Bush’s decisions and policies were still more contemptuous of civil liberties. Or: suppose it to be true, as many in Canada believe, that Prime Minister Pierre Trudeau greatly over-reacted to the situation in 1970 in suspending civil liberties through the War Measures Act. Might it not be true nonetheless that there might be circumstances in which such a piece of legislation would be justified? Now, my point is not that Cole and Waldron, or Trudeau’s critics, are right in these judgments: that debate is for another time. My point is that there exists normative space for these debates to take place. Exactly that normative space is denied by Head’s undefended essentialism.
The blurb writer I quoted above is correct: Crimes Against the State is a much needed book. Citizens and courts far too readily defer to governments when crimes against the state are alleged: citizens and courts are far too ready to castigate those with whom they disagree as traitors and rebels. The role in the operation of the law of sites of economic and political power is underestimated. Head’s spirited and committed book is to be commended for bringing all this to our attention. My doubts are over whether these virtues justify overstatement and bias.
Cole, David. 2012. “Obama and Terror: The Hovering Questions.” New York Review of Books July 12th 2012. http://www.nybooks.com/articles/archives/2012/jul/12/obama-and-terror-hovering-questions/.
Waldron, Jeremy. 2010. Torture, Terror and Trade-Offs: Philosophy for the White House. Oxford: Oxford University Press.
Copyright by the author Roger A. Shiner.