Who is the Public of ‘Public Order’? Sovereignty, Citizenship and the Commons

[Note: this is the Dissertation I wrote for my Birkbeck LLB, which concluded in 2016. It touches on matters of the definition of, and political and policing implications of the term ‘public’ as it appears in Public Order law in England & Wales. In the background are the experiences I personally had campaigning with Defend the Right to Protest, and more specifically in relation to supporting Alfie Meadows in his on-going attempt to defend himself against the state and receive justice].

Introduction

‘There is an order to be found, within things and between them, which binds and directs this world … No sooner does one lift one’s head to pay attention to the obstacles and difficulties of life, than it comes natural to ask how it is that on the one hand God takes care of human affairs, and on the other these same affairs are shot through with so much evil’ – St Augustine[1]

‘At a moment when our grasp of the concept of the public has become so confused, paradoxes multiply and compound the confusion’ – Dan Hind[2]

‘In public order law, legal powers and regulation are defined by vague terms, such as breach of the peace; threatening, abusive or insulting words or behaviour; and causing harassment, alarm or distress. Therefore, the police’s discretionary powers are so wide that virtually any action can, depending on its context, be plausibly branded as criminal so as to justify an arrest’ – Iain Channing[3]

‘The negative universality of the community of citizens – not so much in its extensive (that is, territorial and therefore national) dimension as in its intensive, egalitarian, and democratic dimension – can result from the objective institution of public order only within very narrow social limits and under conditions that are always provisional.’ – Étienne Balibar[4]

How are we today to understand the phrase ‘public order’? Who (or what) is the public in whose name Public Order law is enforced? Does the legal use of the term ‘public’ correspond to a qualitative or quantitative image of humanity, or is the legal notion something more akin to a hypothetical, or a fiction? For such a crucial term, one that circulates between criminal law, police practices, government and sovereign frameworks and people’s everyday relationship to space, it seems curious that there is no clear definition of, or even much critical reflection on, the meaning of ‘public order’. This is particularly worrying when certain Public Order offences (violent disorder and affray) as well as the common law offence of ‘public nuisance’ are increasingly used to punish those deemed to have disrupted it. In recent years, we have seen the widespread use of section 2 of the Public Order Act 1986, violent disorder,[5] in protest and insurrectionary situations – some recent examples include the 2009 Gaza protests, the 2010 student protests, the 2011 riots, multiple anti-fascist protests, anti-immigration raid interventions – as well as in less directly ‘political’ situations such as pub fights, football matches, and so on. In one sense, it may in practice be easier to define what we mean by ‘public disorder’ than ‘order’. But this negative definition does not solve the problem raised by the use of these laws. At the same time, we must recognise that we are living through an era in which the concept of the ‘public’ in a broader sense is being eroded. Neoliberal and ‘austerity’ policies, particularly under right-wing governments, have sought to diminish access to various public, social and welfare goods in the form of a restriction, privatisation and slashing of resources and benefits. Furthermore, access to public space is being ever more limited in the form of increasing private ownership, surveillance and monitoring.

In this dissertation, I want to examine the history of the term ‘public order’, what it obscures both in practice, theory and legislation (particularly the concept of ‘the commons’), and how we understand the term today. Ultimately I want to suggest that both the ‘public’ part and the ‘order’ part of the phrase are terms shot through, from the standpoint of the state, with useful ambiguity – useful because they allow the police, law and state to invoke a concept that appears to refer to the beliefs of a population, when it may in fact not do so at all, and because it allows the state to act as if it is the ‘mediator’ between those it punishes and the reasons why it claims to be doing so. By invoking ‘public order’ the law disguises the fact that it is simply acting in its own interests. As we shall see, the conceptual and historical meanings of both ‘public’ and ‘order’ in fact derive from an older understanding of sovereignty and ‘the people’. This historical development goes hand-in-hand with the idea of individual negative liberty that contemporary law continues to defend against incursion. At the same time, beneath the ‘public’ lies the commons, and certain on-going economic questions about property and distribution, which are deliberately obscured by Public Order law and those who enforce it. In this dissertation, therefore, I will argue that the ‘public’ of public order law, on whose behalf public order is enforced, is descended from, and shares many crucial features with, the figure of the sovereign, as theorised by Hobbes. Agamben allows us to understand this lineage, but lacks a full account of that against which public order is enforced. I will further argue, via the work of Macpherson and an analysis of the contemporary practices of recording Public Order offences, that public order, and thus sovereignty, should be understood above all as a mechanism for perpetually reproducing the enclosure of the commons. To understand the history of public order and the struggles against it, therefore, we need to understand struggles over the commons as not solely economic in nature but as constituting a political practice quite different from that represented by sovereign order.

This dissertation will use a variety of different approaches to discuss the concepts of the public, order, sovereignty, citizenship and the commons (and also related concepts which will not be the main focus but will play a supporting role, such as ‘the Queen’s Peace’). It will draw upon the etymology and history of concepts, on philosophy and political theory as well as cases and statutes. In the first part of this dissertation, I want to begin by negatively defining the phrase ‘public order’ with reference to associated concepts (public interest, public opinion), with a view to pinpointing more precisely the concept of public at stake here. It should be noted from the outset that the term ‘public’ is in practice a concept with high political flexibility, and is in no way a term that can easily be claimed by the left or the right. This has implications for thinking strategically about whether the term can be ‘reclaimed’ (take, for example, Dan Hind’s project in the wake of the global economic crisis of 2007-8 to ‘return’ the public to politics in the name of transparency and democracy). In the second section, I examine the question of order and sovereignty and ask who is the legal or sovereign individual on whose behalf and in whose name the law operates. The question of citizenship and the political possibilities of this term will also be discussed in this section. In the third section I discuss the idea of the commons which cuts against the division of population and property represented by the state’s invocation of the ‘public’. In the conclusion I will suggest that by understanding the way in which the public of Public Order stands in for the sovereign we can better understand the control of both people and property that these law represent, and begin to seek out new ways of reframing the question of a politics that does not obscure violence and inequality under the symbolic misuse of the people.

  1. Who is the Public?

The etymology of the word ‘public’ in the sense of pertaining to the people has its roots in the Latin publicus meaning ‘of the people’, but also common, general, ordinary, vulgar and, as a noun, public property or commonwealth.[6] The first recorded use of ‘public’ in English as in ‘pertaining to the people’ dates from the 15th century, and the use of ‘public’ to mean ‘people in general’ comes later, from the 1660s, around the same time as ‘public interest’ became more widely used.[7] Sharing a common root with ‘public’, the term ‘police’ derives from the word ‘policy’ which in turn is derived from the Latin politia, from the Greek polis, relating to politics. As Balibar reminds us, the classical British terms ‘polity’ and ‘commonwealth’ and the Roman res publica all stem from the Greek term politeia, particularly Aristotle’s use of it to mean both reciprocity, or ‘the distribution and rotation’ of power and office among the rights-holders in the city, and the organisation of administrative and governmental duties into a system of legal institutions.[8] While these two sides of the term have since been torn asunder by the development of the nation-state, Balibar suggests that to actively return to politeia in the sense of affirming ‘a constitution of citizenship that is both open, transnational, and “cosmopolitan,” as well as evolving’ would necessitate reworking the notion of citizenship altogether.[9] By placing reciprocity at the heart of citizenship, both in terms of status but also practice, Balibar, via his resurrection of the concept of politeia, suggests that the question is still as riddled with tension and difficulty as it had been in Aristotle’s time, yet the two sides must be thought anew:

Although we have neither guarantee nor certainty, we must make this leap into the project of building a community of citizens that would be open in principle, but that would not as a result forfeit the ideas of rights and obligations or the distribution of powers and collective participation in self-government.[10]

But we are a long way from this original conception of politeia and citizenship (notwithstanding the very real exclusions that constituted the Greek and Latin understandings of the term in the first place), and part of this distance must be understood historically to be tied up with the way in which the police and the law have come to stand in for what the concept of the ‘public’ means. When Robert Peel, founder of the modern police (and of the Conservative party), announced in 1829 that the ‘the police are the public and the public are the police’, he revealed not a relationship of equality but more a prediction of what the public would come to mean – that is to say, the ‘public’ would be increasingly invoked by the state as that which silently backs up decisions made in its name. But before we analyse the sovereign image of the individual that underlies the public of public order, we need to disentangle various meanings of the public that ultimately obscure its historical roots in the figure of the sovereign.

We should note at the outset that there are several potentially reactionary qualities of ‘the public’ that suit the law and order agenda of recent governments. One particular image of the public – the public of ‘public opinion’ – does not exactly overlap with the population but is an amplification of some of its views via the media. There is a broader question here about the historical development of the public sphere as representing the emergence of a critical bourgeois estate (as discussed in the work of Habermas) that we do not have time to examine here, suffice it to say that his claim that ‘[p]ublic discussion deals with objects connected to the activity of the state’[11] fails to account for the ways in which powerful media interests construct public opinion and thus the image of the public itself.

Some laws and crackdowns are of course implemented in relation to these supposed ‘public’ opinions in the wake of ‘outcries’ or panics. As Easton and Piper note, this cyclical relationship ultimately widens the scope of the criminal justice system: ‘many would argue that public opinion on law and order has been the major influence on penal policy and particularly on levels of punishment since the 1990s … by reacting strongly to the perceived public concerns over crime, governments may, ironically, increase the public’s punitiveness’.[12] The public, they note, tends to overestimate crime levels but also underestimate the severity of the justice system in the way crimes are punished. Those who sit on juries may have little idea about the length of time someone might serve for a particular crime, and may be strongly ideologically swayed by the depiction of the police in fictional media as well as by ‘police fetishism’, the ideological assumption that the police ‘are a functional prerequisite of social order so that without a police force chaos would ensue’.[13]

There is a further tangential relationship between the public and the police we should note at the outset. This is the blurring of the line between police and public in the shape of CSOs (Community Support Officers) introduced by the Police Reform Act (2003), who are ‘private police personnel with some of the powers of the public police’.[14] Relatedly, Fiona Cowie and others also note the phenomenon of the ‘public police’, remarking that the official police play a surprisingly small role in discovery of offences (75-80% of crimes are reported by the police by the public), and there is an ‘informal social control’ exerted by the public.[15] While there have been discussions about ‘privatisation’ in the wake of police suffering budget cuts under austerity (unlike under Thatcher), in the final analysis we can say that the state will always defend private firms who operate on its behalf. See, for example, the acquittal in 2014 of the G4S officers in the case of Jimmy Mubenga, who suffocated him during deportation. As Deborah Coles, co-director of the charity INQUEST, said: ‘There needs to be a mechanism for state institutions and the private companies they employ to be held to account when people die. The lack of state accountability over black deaths in custody is a global issue and one that will not go away until urgently addressed.’[16] So even in situations where the state has subcontracted responsibility to a ‘private’ firm, that private firm will be, in the final analysis, defended by the state. While there has been a blurring of the police and the public in some regards, and a kind of becoming-police of the public, there is still a clear line between those who are given certain powers and who will be defended in the last instance by the state, and those who will not.

There is another important legal shift in the way in which the ‘public’ has been used that I want to mention here. This relates to immigration law. The ‘public good’ in the legal sense particularly used in immigration law has seen a shift in its usage. Prior to 2007, a foreign national convicted of an offence could challenge deportation on the grounds that deportation would not be conducive to the public good, where the public good is imagined as a collective whole where someone has a role or a relation, to labour or family or community (problematic words in themselves). Since the UK Borders Act of 2007, if someone is convicted of an offence and has served at least 12 months, their deportation is ‘automatically deemed to be conducive to the public good and the Secretary of State for the Home Department is obliged to make a deportation order’.[17] Thus the UK public is again invoked as a direct proxy for the state – the state decides on behalf of the people what the ‘public good’ might be. Here parallels can be seen with the ‘public interest’ element of The Full Code Test used by the Crown Prosecution Service to determine whether to make a charge. Alongside the evidentiary requirement there is the Public Interest Stage, which includes the following elements: seriousness of the offence, culpability of the suspect, harm to the victim and impact on the community. One key part of the test for our purposes is the following: ‘A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public’.[18] Though the term ‘public’ is not defined here, in many cases this ‘servant of the public’ is a police officer. Thus it is particularly in the public interest to prosecute those who interfere with the police precisely insofar as they protect the public (meaning the state). Whoever is in the position of being thus accused is perhaps no longer to be seen as part of the public (or the state), because the public equals the police, as Peel predicted. There is one final aspect of this initial discussion of the multiple iterations of the public, and that is the role of social class, and who in practice acts as the bearer of ‘publicness’. As Norrie so clearly puts it:

When judges are called upon, or volunteer, to make law … they do so not in the name of a social class but in the universal terms of what they call the “public interest” or “public policy” … The criminal law is an area where the judges remain keenly aware of the “public interest” and the functions of the law … The law is administered from the perspective of a body of, mainly, men drawn predominantly from one social class and applied to another body, again mainly of men, drawn predominantly from another social class. The law embodies a logic of individual right to be applied universally, but it is also applied to one group by another.[19]

This question of class and the law will return in the discussion of ‘public nuisance’ but also in a broader sense in the discussion of the commons.

 

1.1 The Queen’s Peace

‘The fundamental duty of the police is to preserve the Queen’s Peace and uphold the law’.[20]

Before discussing Public Order legislation as it currently stands, I want to examine the term ‘The Queen’s Peace’ as it relates to the question of the ‘breach of the peace’. As Channing points out, breach of the peace is not a substantive criminal offence in England and Wales.[21] And as Glanville Williams wrote of the term in 1954, there is a ‘surprising lack of authoritative definition of what one would suppose to be a fundamental concept in criminal law’.[22] And yet under common law, the police have wide powers precisely to prevent a breach of the peace. As Channing continues, ‘[t]he controversial breach of the peace doctrine nullifies any sense of clarity or uniformity in public order law as it provides the police with extensive discretionary powers which limit the understanding of protestors and political activists of how the police will respond to their actions’.[23] We have something of a definition in R v Howell, where Watkins LJ states: ‘We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant.’[24] The discretion granted to the police by the phrase ‘breach of the peace’ is clearly extremely wide – basically any situation can be said to be potentially a breach of the peace. Hanging around on the street, having a picnic in a park or having a drink in one’s own property (a breach of the peace may occur on either public or private property), a peaceful sit-down protest, and so on. This in practice creates, as Channing notes, ‘an opportunity for the police to discriminate, either consciously or subconsciously, against certain groups or individuals’.[25] As Waddington puts it: ‘‘The peace is an ill-defined state of tranquillity … that is almost bound to be breached by any act of protest … even peaceful protest is by definition disruptive and even potentially violent’.[26]

But in whose interest is a certain kind of ‘peace’?

In 1953, Sir Allen, in his lengthy monograph The Queen’s Peace, made the following claim:

The “peace of our Sovereign Lady the Queen” has been described by our greatest legal historian, Maitland, as an “all-embracing atmosphere” in our law, and, we may add, in our whole social life. We could not breathe in any other atmosphere, and we take it for granted as if it were part of the order of nature.[27]

Allen makes it clear in his history of the term that its origins lie very much in control of and access to the land, in terms dictated by the monarch. In relation to Edward the Confessor, Allen notes: ‘Any unauthorised works or nuisances on the king’s highways or waterways were liable to be destroyed and made good and involved a forfeiture (forisfactura) to the king’.[28] Far from some lofty shared social commitment to order, it is very obvious from the origins and material enforcement of the term that the Queen’s Peace is a possessive and economic category (and we should note that even today in cases of ‘riot’ under the Riot Damages Act (1886), it is the police authorities who must pay uninsured victims of the riot, as a kind of ‘punishment’ against the police themselves, which is why the charge is very rarely used). As Allen bluntly puts it: ‘Much of our constitutional history could be written in terms of the struggle of the sovereign for a living wage’.[29]

It is clear that the scope of the ‘peace’ referred to in the wide-ranging powers given to the police to prevent any ‘breach’ of it is primarily designed to protect the sovereign’s right of access to and ability to generate money from the land and to punish those who use it in ways contrary to the sovereign’s wishes. We could also note here The Riot Act (1714), repealed in 1967, which gave people an hour to disperse after reading and indemnified those assisting the magistrates of any crime even in the killing and maiming of those in the area, as representing the extreme authority of the state over space and time. Some riots prior to the 1986 Act had been prosecuted as ‘high treason’, which carried the death penalty, further indicating that to breach the peace was to insult the monarch first and foremost. Those who breach the peace, or even remotely threaten to do so, whether they really intend to or not, become a kind of de facto object for state intervention and punishment in the form of the police in the first place, and courts (and fines or imprisonment) in the second. We also should not underestimate the role that making someone a (public) ‘example’ has: public shaming is still very much effectively used as another extra-legal force against certain kinds of behaviour.

The 1986 Public Order Act includes anything from a person acting drunk and disorderly to a riot. Many felt that the 1986 Act represented a significant shift in the Government’s attitude regarding the individual liberty of the subject and heralded a new and repressive, and perhaps even paramilitary style of policing. Waddington describes this (pre-HRA) position as the ‘civil libertarian critique’ which ‘accuses the Act of greatly and needlessly extending police powers without adequately protecting the rights of citizens, to the detriment of police-public relations … without the protection of a Bill of Rights, its critics argue, protest will be allowed only on terms dictated by the police’.[30] But Waddington argues that 1986 Act did not in fact extend the scope of laws and that in practice ‘there has been little or no change in the legal powers of the police’ (p. 33). Waddington is right in the sense that the police and the state could always and at their own discretion invoke a breach of the peace as justification for any action they took against individuals or crowds. There has never as such been a ‘right’ to protest in English law. As lawyer Davis Mead suggests, there ‘is no time at which one can easily plot the entry of a right of assembly and protest into legal and judicial discourse in England.’[31]

In that sense, then, if we look at the way in which the government classifies Public Order crimes today, we can even more clearly see the continuity with the sovereignty of the past. The Home Office Counting Rules for Recorded Crime, which take effect from April 2016, now counts alongside the Public Order offences of Riot and Violent Disorder several older classifications. These are highly revealing: 62(s) Treason, according to the Treason Acts 1351-1814; 62 (s) Attempting to injure or alarm the sovereign, according to the Treason Act 1842 section 2; 63 (s) Treason felony, according to the Treason Felony Act 1848.[32] Here the very latest way in which crime is constructed as fact reveals the historical continuity, as the state sees it, between public disorder and a direct attack on the sanctity of the sovereign.

Ultimately, it is clear that Public Order law, despite the centrality of the word ‘public’ and the idea that it somehow reflects ‘the people’, is not maintained on behalf of the public – which is, as we have seen, an incoherent, or at least highly fractured, concept – but, on behalf of the sovereign/state. The term ‘public’ thus functions to ideologically construct universal legitimacy for the violent preservation of the sovereign’s order. In the second section, we now turn to an examination of the origin of the term ‘order’ and the secularisation narrative – the idea that with a turn to a man-made, rather than divine, image of law that there has been a break with theology – before examining the rise of the image of the ‘sovereign individual’, the mini-image of the state that nevertheless confirms that, in the end, it is the sovereign that lies behind the ‘public’. Here I will also look briefly at the concept of the citizen in the work of Balibar to see if there are resources for rethinking politics as self-governance.

 

  1. Who is the Sovereign Individual?

In The Political Theory of Possessive Individualism: Hobbes to Locke, Macpherson examines the theoretical basis for the ‘liberal-democratic’ state, and finds it in the political theory and practice of the English seventeenth century. It is during this period, he suggests, that a conceptual and political break is made between a cosmic order, the idea that order is natural and divinely ordained, and the idea that order is man-made. This obviously has huge implications for our concepts of the social and the political and for who or what ‘manages’ or even ‘constructs’ this order. The concept of the sovereign begins to play an increasingly important mediating role – as Hobbes puts it, as a kind of ‘mortal God’ – which raises an on-going question about what we mean by social or public order. Are we, however, still tied, however obscurely, to a theological thread that sees in the figure of body of the sovereign some last remaining locus of an order that goes beyond the individual or the collective? Our discussion of the ‘Queen’s peace’ above certainly might indicate that this is so. As Neocleous puts it:

By the mid-seventeenth century the idea of social order had been largely emancipated from cosmology and replaced by the essentially Hobbesian belief that order is constituted by the sovereign. At the same time as the state began to acquire the power of being able to fabricate order out of the increasingly disorderly social world, the concept of order no longer reflected something transcendental, natural and divine, but instead was discursively structured around the concept of sovereign power.[33]

Historically, this capacity or even duty of the sovereign to ‘fabricate’ social order has meant that the state comes to play an increasingly dominant role in determining what ‘order’ might mean. As Neocleous further argues: ‘as the sovereign state came to be seen to have the power to fabricate order, so the key institutional mechanism through which this fabrication was achieved – police, policy – became legitimated’.[34]

With the break within the concept of ‘order’ as divinely bestowed, as evidenced by the St Augustine quote cited at the beginning of the dissertation, and with the centrality of the power of the state, there also comes, argues Macpherson, ‘a new belief in the value and rights of the individual’.[35] Identification of this ‘individual’ within the context of the ‘public’ will be crucial for ascertaining the scope of the freedoms that people have generally within the law, as it is clear that, as Norrie puts it, at the heart of modern legal theory is a notion of the ‘abstract juridical individual’.[36] The relationship between this abstract individual and collective notions of the ‘public’ or the ‘mob’ and the competing rights between groups and individuals are troubled by the question of public order. For Macpherson, the individual that is the subject of the liberal-democratic state is seen as ‘the owner of himself’, thus society consists of ‘relations of exchange between proprietors’.[37] Although in a sense, everyone is by definition the ‘owner’ of his or her capacities and person, this notion of the individual is also highly differentiated in practice – we could ask a series of questions: are children truly capable of ‘owning’ their own capacities, for example? Are those who must sell their labour power in return for a wage truly ‘in possession’ of their own capacities? Are those who also own property in an external sense consequently double proprietors? Macpherson recognises the historical tension in the theory of possessive individualism: ‘The dilemma of modern liberal-democratic theory is now apparent: it must continue to use the assumptions of possessive individualism, at a time when the structure of market society no longer provides the necessary conditions for deducing a valid theory of political obligation from those assumptions’.[38] We could read Macpherson as acknowledging that as social cohesion collapses, then the state increasingly needs to turn to coercion in order to keep the population in line. History and the present certainly demonstrates in practice the asymmetries of individualism, and nowhere is that clearer than in the way in which police and law treat those deemed to lack ‘property’, or indeed be the kind of person seen to ‘belong’ to the state by virtue of falling outside of certain behavioural norms. Indeed the disturbing and common (at least among police officers) term ‘police property’ refers to those people deemed to be subject to social control by the police:

They are low-status, powerless groups whom the dominant majority see as problematic or distasteful. The majority are prepared to let the police deal with their ‘property’ and turn a blind eye to the manner in which this is done. Examples might be vagrants, skid-row alcoholics, drug addicts, the unemployed or casually employed residuum, youth adopting a deviant cultural style, ethnic minorities, gays, prostitutes, and radical political organisations.[39]

The breadth of this term is astonishing: by default then, only those deemed to be white, heterosexual, property-owning or renting, employed and non-substance-dependent might be seen to not a priori ‘belong’ to the police, and therefore to the state. Certainly the rise of multiple laws relating to the control and segregation of various groups in the form of The Crime and Disorder Act (1998), particularly the creation of the Anti-Social Behaviour Order (ASBO) under New Labour, attest to the felt need on the part of the state to control and thus to ‘fabricate’ (in Neocleous’s terms) social order.

The Anti-Social Behaviour Order (ASBO) was supplanted in 2015. Under Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014 (2014 Act), the ASBO has been replaced by the Injunction to Prevent Nuisance and Annoyance (IPNA). As Stavros Demetriou comments, the definition of anti-social behaviour has been expanded, now covering ‘household related behaviour, the threshold for which seems to be significantly lower compared to non-household related conduct.’[40] Not only has the reach of ‘anti-social’ legislation been extended but its terms have also not been clarified: ‘At first sight, the 2014 Act does not only fail to address the concerns raised by ASBO’s critiques as to the broad statutory definition of anti-social behaviour, but it potentially adds to ambiguities surrounding the true extent of the definition by extending its reach further’.[41] Thus social control has been extended without in fact any progress in the definition of what the meaning of ‘anti-social’ is. Similarly, in the 1986 Public Order Act, s5 (‘Harassment, Alarm and Distress’), as Peter Thornton argues, ‘extends the criminal law into areas of annoyance, disturbance, and inconvenience.’[42] More and more behaviours and people fall under the category of ‘police property’.

As Reiner puts it: ‘The concern with “police property” is not so much to enforce the law as to maintain order using the law as one resource among many’.[43] Reiner puts in this regard to the controversial use of ‘stop and search’ (s. 60) tactics, and we should note that the use of these methods of behavioural control and punishment directly fed into the anger that fuelled the English riots of 2011, which further elicited the use of public order laws (particularly violent disorder) as punishment.[44] For thinkers such as Neocleous, and following on from these increasingly broad definitions of ‘police property’ and ‘anti-social behaviour’, the central purpose of policing is the control and indeed reproduction of the class of the poor:

[T]he core of the police project remains the question of poverty and thus the condition of the class of poverty, and since state institutions for the administration of poverty are generally understood by the term ‘social policy’ and administered through the institutions of the welfare state, the expanded concept of police shall be thought of as social police and presented as the project of social security (p. xi).

Similarly for Garland, it is a combination of the disgust of the middle classes for some or all of those groups depicted in the category of ‘police property’ combined with an inability to give up on the reproduction of the very system that generates such inequality in the first place that produces support for the police in their control of the poor:

Convinced of the need to re-impose order, but unwilling to restrict consumer choice or give up personal freedoms; determined to enhance their own security, but unwilling to pay more taxes or finance the security of others; appalled by unregulated egoism and anti-social attitudes but committed to a market system which reproduces that very culture, the anxious middle classes today seek resolution for their ambivalence in zealously controlling the poor and excluding the marginal.[45]

Macpherson’s theory of possessive individualism is useful in the first place because it recognises that the nexus of the possessive-individual/sovereign/public order is mobilised to suppress the utopian possibilities of practices of commoning. Macpherson notes that historically there were those who dissented from ‘full possessive individualism’. Referring specifically to the Levellers and Winstanley he notes ‘[t]he Levellers did not share Winstanley’s utopian insight that freedom lay in free common access to the land. For Winstanley that was the key to freedom, for that was the only way to assure freedom from exploitation of man by man.’[46] This ‘key to freedom’ forms the reason why we must ultimately turn to this question of ‘free common access to the land’ which we will do in our examination of the commons.

We shall also return to the question of the control of the poor not just as property-less bodies in space, but of the division of that space itself in the final section of the dissertation on public space. But before turning to the question of those situations where the ‘sovereign individual’ is directly confronted as a class with disruption in the case of the law of ‘public nuisance’, I want to address some broader political questions relating to the question of the sovereign and what citizenship might mean in the work of Agamben and Balibar. Ultimately, I will suggest that although we can trace a direct line from the sovereign to Public Order law, in many cases the state, by invoking the concept of the ‘public’ and ‘public order’ does not even require an image of the sovereign individual in order to justify any action it takes. The possessive individual who is the bearer of negative liberty is useful in understanding who might come to rely on the police and the state, as in Garland’s quote above, but it is not always necessary for justifying why the state intervenes into what it chooses to define as ‘public disorder’ or a ‘breach of the peace’.

Fig 1. Detail from the Leviathan frontispiece with figures facing the sovereign (1651).

2.1 Agamben

In his recent work, Agamben allows us to see how the role of the public in Public Order law functions, by virtue of the way he demonstrates how the notion of the public is related back to the sovereign. There is an isomorphism and a common historical source between the sovereign that Agamben depicts in Hobbes and the public of today’s Public Order laws. Agamben provides a response to Neocleous’s secularisation of order narrative by identifying the mechanism at work in the operation of contemporary public law, and thus provides an indispensable resource for understanding the persistence of the sovereign in the present as the figure of the public – in other words, the idea that public order is enforced on behalf of the sovereign, not the public, which is absent or missing as an excluded multitude.

In Stasis Agamben examines Hobbes with a view to unpacking the meaning of the sovereign and the people. Here Agamben discusses the various historical readings of the famous frontispiece to Leviathan (1651), noting that in the manuscript prepared for Charles II, the tiny men that make up the body of the Leviathan were turned outwards to face the monarch, whereas in the other, main, frontispiece they face upwards towards the head of the sovereign. Both editions, in fact, therefore present the ‘same’ image, just for different readers. Pointing out that the Leviathan in the image appears behind the earth, and possibly in or above the sea, Agamben notes that the ‘mortal-God’ does not then reside in the city but outside it, in a kind of no-man’s-land: ‘The Common-wealth – the body political – does not coincide with the physical body of the city’.[47] The city in the image is also bereft of people, as they are all making up the body of the sovereign. It is this non-coincidence and this absence that Agamben pursues: does the strangeness of the frontispiece in fact mean that neither the sovereign nor the people belong in the city? What could this mean for our understanding of the public? As we have seen, the ‘public’ invoked by public order law does not correspond to a body of identifiable people or their opinion, but rather serves as a kind of proxy for the sovereign in the name of the Queen’s Peace, as we saw above. The state in this sense hovers ‘above’ the everyday life of the city and the citizens and yet they too are incorporated into the body of the sovereign, thus hollowing out the city. This, I want to suggest, is exactly how the law of Public Order functions.

Fig 2. Detail of the Leviathan frontispiece with figures facing the sovereign-reader, Charles II (1651).

Drawing on Hobbes’s De Cive, Agamben explores the paradoxical difference between ‘people’ (populus) and ‘multitude’ (multitudo). For Hobbes, the people is something single with one will and one action, whereas the multitude are many, embodied, teeming. In democracy and aristocracy, the citizens are the multitude and the council is the people, whereas in a monarchy, the subjects are the multitude and paradoxically, the king ‘is the people’.[48] Agamben points out that these distinctions simultaneously imply a caesura and an identification – the multitude of citizens is not the people but the king is. But, Agamben asks, how can the multitude of natural bodies become one person alone? And what happens to the multitude once it has been unified in the king?[49] Agamben suggests that, for Hobbes, at the moment of the choosing of the sovereign, the people in fact ‘disappear’, not only in a monarchy, but also in a democracy or an aristocracy: ‘The people – the body political – exists only instantaneously at the point in which it appoints [one man …] but this point coincides with its vanishing into a “dissolved multitude”’.[50] This same mechanism arguably happens to the public the moment it is called upon to hypothetically uphold order, and yet in reality, there are still bodies (the multitude) in the cities. What Agamben perhaps misses, despite the usefulness of his reading of Hobbes is the residual power and might of the multitude, the fact that they do still have some material relation to the land, even before this relation is politicised in their becoming-sovereign.

Arguing that it is the concept of the ‘body’ (as in the ‘body political’) that is so fundamental to Hobbes’s thought, Agamben further claims that there is a circular relationship between the ‘disunited multitude’ (preceding the covenant), the people-king and the ‘dissolved multitude’ (dissoluta multitudo) that follows it, which cannot be reconciled but instead is only broken by civil war. Returning to the image of the empty city and the non-dwelling of the Leviathan’s body in the frontispiece, Agamben goes on to claim that the dissolved multitude are literally unpresentable, having been assimilated into the Leviathan, whose exclusion from the city nevertheless provides its foundation. Ultimately, and with great consequences for Western political thought, Hobbes’s divided notion of the people (as both a ‘politically qualified body’ and a ‘politically unqualified multitude’ has led to a strange absence of the people in political thought, because if ‘the people’ are the bearer of constituent power (at least since the French Revolution), then ‘to the extent that it is the bearer of this power it must find itself outside all juridical-constitutional normativity’.[51] Yet it still needs representatives. In other words, ‘[t]he people … is the absolutely present which, as such, can never be present and thus can only be represented’.[52] This is what Agamben refers to as ‘ademia’ (the absence of a people’), again as depicted in Leviathan’s frontispiece.

Every state, paradoxically, thus lives in a condition of ‘perennial ademia’.[53] The dissolved multitude highlights the permanent potential possibility of civil war, and the complicated overlap between stasis and the state of nature: ‘the state of nature is a mythological projection into the past of civil war; conversely, civil war is a projection of the state of nature into the city: it is what appears when one considers the city from the perspective of the state of nature’.[54] On the basis of Agamben’s reading of Hobbes, we can see how the threat of civil war and the strange ‘absence’ of the people creates a ‘need’ for the sovereign to both fabricate a social order that attempts to prevent disorder, and the way in which the absent people can nevertheless play a useful role in the law’s invocation for a body that justifies the kinds of things it seeks to punish. The ‘public’ of public order law is that which can only be ‘represented’, not actualised. The ‘public’ thus also serves as a mediation between the law/state and the individual set before the court. Protestors in this sense are always a kind of multitude, and represent the threat of disorder, and ultimately civil war, even before they have done anything at all. Their embodied existence removes them from the realm of that which has disappeared into the sovereign and represents a permanent threat to the state. The state is in a permanent state of suspicion of its people.

Ultimately, for Agamben, however, Hobbes’s frontispiece only makes sense in the light of an eschatological perspective on Hobbes’s discussion of the Kingdom of God, and the fact that in the image, the King’s head appears separate from the tiny bodies that make up the larger body: ‘at the end of time the cephalic fiction of the Leviathan could be erased and the people discover its own body’.[55] Without understanding that the roots of modern political theory from Hobbes onwards lie in eschatology and theology, Agamben suggest that we will not escape from the contradictions outlined in his account, first among them, and historically and philosophically much neglected, that of civil war. In that sense, then, we have not escaped the religious dimensions of ‘order’ as much as was suggested at the beginning of our discussion of Hobbes by Neocleous and others. Indeed, the monarch continues absolutely to symbolise order, particularly in non-republican political frameworks such as we find in English law. To this extent, I agree with Agamben, though I think the absence of a discussion of the commons leads to an unnecessarily apocalyptic conception of politics as a whole.

But what can we say of the situation of ‘the people’ today, to return to another side of our original question about politics and policing? Here is where a discussion of the nature and role of the ‘citizen’ becomes necessary. This question is made more ambiguous in the British context because of the lack of clarity as to whether those with British passports are in fact subject to the monarch and/or citizens of the realm. In some sense, they are both, but the situation with republican and post-republican states such as France remains slightly different. Nevertheless, in order to determine what we mean when we discuss the people in relation to the public, and particularly the law, it is necessary to investigate what role this term could potentially play in any reclamation of the ground currently monopolised by the construction of order by the state.

2.2 The Citizen

To turn away for a moment from the critique of the model of politics represented by the statist definition of the public and the figure of the sovereign, we could ask whether there are other models of non-state actors that provide some kind of possibility of a new image of participation. Here we briefly turn to look at the republican concept of the citizen, particularly in the work of Balibar. Here I want to argue that Balibar’s theory of citizenship reveals that this figure is also fractured by conflict and order, but that he ultimately fails to understand the way the figure of the sovereign persists in our understanding of what politics as such is. Furthermore, that without a conception of the commons and ownership, the figure of the citizen, although in principle more insurrectionary than that of the sovereign ‘subject’, is incomplete.

Balibar’s Citizenship addresses the ‘antinomic’ relationship between democracy and citizenship. He begins by stating that ‘democracy is what makes the institution of citizenship problematic[56] and suggests that the constitutive yet ‘unnatural’ and historically determined relationship between the two terms should be understood as antinomic in two ways: firstly that there is a permanent tension between the process of construction and destruction in the dynamic of the transformation of the political, and, secondly, that this tension cannot be resolved or eradicated.[57] Balibar describes his own approach as ‘dialectical’ as it is via an examination of the two sides of the antinomy that he hopes to understand how this relation is also ‘the motor for the transformation of the political institution’.[58]

Balibar’s term for the civic ideals encompassed by the Bourgeois revolutions is ‘equaliberty’. Looking back to Cicero’s discussion of res publica, Balibar notes the unity of ‘man’ and ‘citizen’ and ‘liberty’ and ‘equality’ in his definition of commonwealth, and the way in which this then feeds into revolutionary demands many centuries later: ‘By simultaneously demanding equality and liberty, we reiterate the enunciation that is at the root of modern universal citizenship’.[59] This demand is also, thinks Balibar, at the root of conflict, because those in power ‘never give up their privileges voluntarily’.[60] We can perhaps suggest that under the British constitutional monarchy, far fewer privileges have been given up and that this is reflected very precisely in the language around public order and ‘peace’.

Balibar further examines the way in which the demand for social rights has become incorporated into the definition of citizenship in the twentieth century. Balibar extracts three core features of the term: that it is distinct from the simple recognition of social rights; that the demands for social rights are simultaneously politicised and displaced; that the term touches on the complex relationship between socialism and democracy.[61] Balibar suggests that historically the demand for social rights operated as a mechanism of ‘universal solidarity’,[62] which has since been undermined by the competitive pressures of the movement of labour under global capitalism and the ‘destabilisation of the professional relationship between work and individuality’.[63] We can add to this that the policing of labour struggles, strike-breaking and the mass arrest and punishment of those seeking ‘civil rights’ (not a term that fits neatly with the British context) has also contributed a great deal to our image of what citizenship as participation could mean.

It is in Balibar’s exploration of violence and counter-violence that we gain an insight into what it takes to uphold the ‘peace’, whether it be the ‘Queen’s Peace’ or that of the republican state:

Not only is the preventative repression of conflict generally extremely violent… implying the dissymmetrical use of all the instruments (police, law, ideology) of institutional power, but it also involves a (riskier) manipulation of the violence that cannot always be entirely kept at bay, and which emerging exposes itself to “legitimate” punishment (as we saw in most of the recent cases of urban violence).[64]

In other words, there is a paradox of order, in that ‘keeping’ the peace is often synonymous with the use of state violence, which in turn increases the risk of unleashing a further violent response which will then be further punished. Balibar argues that democracy is a regime that ‘renders conflict legitimate’,[65] in that it attempts to avoid the cyclical qualities of civil war. In other words, democracy is the political system that transforms conflicts without ever abolishing them. The history of democracy and citizenship itself is thus forged from out of the conflict of institutions, sometimes progressively, sometimes regressively, and always asymmetrically.

Balibar ultimately suggests that we should not give up on the terms ‘democracy’ and ‘citizenship’ in unhappy resignation, nor should we resurrect them in the name of some supposed essence or historical continuity with ancient Greece or Rome, but rather recognise that the past insurrections for which these names continue to be the bearers should precisely be remembered in their insurrectionary and disruptive character, both then and now. ‘Insurrection,’ he states, ‘in its different forms, is the active modality of citizenship’.[66] While I do not disagree with this analysis, it seems clear that the republican image of the citizen does not neatly map onto the British image of the half-citizen, half-subject who is still very much governed by sovereign rule. It also does not raise the question of the ownership of resources and economic power which, as we have already seen, is there from the start of monarchical control of the land and population.

2.3 Freedom and ‘Nuisance’

Balibar’s point regarding insurrection – that it is an inherent feature or modality of citizenship nevertheless raises serious questions. It is clear that rebellion is an integral part of democracy. It is also clear that states must weigh up often incompatible individual rights when it comes to public order. The law of public order is a compromise which seeks to balance the ‘competing demands of freedom of speech and assembly on the one hand and the preservation of the Queen’s Peace on the other’.[67] Before the Human Rights Act 1998 (HRA) and the incorporation of the European Convention on Human Rights (ECHR), there was no legally defined ‘right’ of public meeting or freedom of speech. Since the HRA and the ECHR incorporation, freedom of expression and freedom of assembly (Articles 10 and 11) are protected rights but they are not absolute rights, and are subject to limitations in Articles 10(2) and 11(2). Article 11(2) limits the freedom of assembly in the following way: ‘No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others’.[68] But the context for these changes has also brought with it new kinds of restrictions from different angles. As Channing notes:

Paradoxically, despite the possibility for human rights to now have legal protection, a sequence of counter-terrorism legislation has been enacted which has further damaged civil liberties and individual freedoms. The Terrorism Act 2000 widened the definition of terrorism and made further powers available for the proscription of organisations that were believed to be involved with terrorism.[69]

We should note here that the figure of the ‘domestic extremist’, while almost always used against Muslims, can also on occasion be extended to encompass protestors. The prosecution of those participating in the student protests of 2010 were overseen by counter-terrorism officers, and it is clear that we live in a period in which the freedom of speech (as a particular kind of publicness) is particularly under threat for those particularly deemed to be at risk of ‘radicalisation’ (see, in particular, the PREVENT agenda, now statutory for all public institutions, and the implications this has had for Muslim students for in particular who have been reported to the state simply for discussing course topics or reading set books).[70]

We have seen how the ambiguous figure of the sovereign and the citizen both vanish and reappear around the question of what politics is, or might be. But protest raises this question in a particularly acute way, pitting my right to freedom of speech and expression against the right of someone else, or maybe multiple others, to go about their day undisturbed. Just as one is never found ‘innocent’ by a court only ‘not guilty’, we might say that the concept of liberty that the state grants is never a positive, but only a negative one. One is free in so far as one is ‘left alone’. As Isaiah Berlin famously defines this negative concept of freedom:

I am normally said to be free to the degree to which no man or body of men interferes with my activity. Political liberty in this sense is simply the area within which a man can act unobstructed by others. If I am prevented by others from doing what I could otherwise do, I am to that degree unfree; and if this area is contracted by other men beyond a certain minimum, I can be described as being coerced, or, it may be, enslaved.[71]

We have seen how the sovereign and the possessive individual is tied to property, and that some people (or groups of people) are themselves treated as police property (we could add that those a priori suspected of terrorism are also very much treated as ‘police’ or ‘state’ property and subject to detention without trial, extraordinary rendition and so forth, in the name of a ‘state of exception’ or ‘emergency’, but this is a topic beyond the scope of this dissertation, though it is clearly connected if we recognise how the ‘peace’ is always already itself a state of emergency).  The model of the subject presupposed by this negative conception of freedom is central to how we understand the state’s role in preventing a breach of the peace, as defined above. What then happens to those who wilfully and deliberately interfere with this conception on political grounds, not just at an individual level, but against a whole group of people? What about the tension between the negative conception of freedom and the idea of freedom that Winstanley described (‘free common access to the land’)?

2.4 Public Nuisance

Trenton Oldfield, who in April 2012 disrupted the annual Oxford-Cambridge Boat Race to protest against inequality, was sentenced to six months in jail for the offence of ‘public nuisance’. Public nuisance is an ancient common law offence that is both a tort and a criminal offence. A definition can be found in Wilkes v Hungerford Market Co (1835),[72] where people blocked access to a bookshop causing loss of business, which defines it in the following way: ‘[to] do an act not warranted by law, or omit to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects’. Another key case of public nuisance, Attorney General v. PYA Quarries Ltd. (1957), stated that: ‘A nuisance is a public nuisance if, within its sphere, which is the neighbourhood, it materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects.’[73]

The use of ‘public nuisance’ to punish a protestor raises some interesting questions about rights, the public, the ‘comfort and convenience of life of a class’ and who exactly are ‘Her Majesty’s subjects’ that the nuisance-causer is being punished on behalf of. In the sentencing remarks for Oldfield, Judge Molyneux said the following:

You gave evidence at your trial of your views that this was an elitist race supported by an elite society. You said that you acted as you did to draw attention to inequality. You said that you planned to disrupt the race, that you are content with what you did and that you have no regrets. You said “I knew that there would be people upset. There is a long history of protest, it is part of British culture, and unfortunately delays are a part of protest”.[74]

In order to address the issue of (in)equality, Judge Molyneux disputed Oldfield’s premises, stating that ‘It is a fact, upon which you should reflect, that the race you interrupted is a free spectacle open to all’. The fact that anybody could watch the boat race from the shore does not of course demonstrate that the boat race is open to all in a different sense – it is very clearly a spectacle by the elites for those who, tacitly at least, uphold the existing order. Similarly, Molyneux pronounced: ‘You decided that you had the right to stop members of the public enjoying a sporting competition which they had chosen to go and watch. You did not have that right. You did nothing to address inequality by giving yourself the right to spoil the enjoyment of others. In doing so you acted without regard for equality and contrary to the meaning of it.’ It is interesting to note that the state’s definition of equality in relation to the public presents them merely as bystanders, and as those who are non-disruptive. Oldfield’s action was further described by the judge as ‘prejudice’ ‘based on the membership or perceived membership of its participants of a group’. And yet, as we have seen, the law absolutely permits itself to behave with prejudice towards any individual or group it deems to be about to breach the peace – there is no limitation in the way these discretionary principles are applied, and of course we know that in practice they are applied with the most extreme prejudice.

We should note for the record, that there is evidence in Oldfield’s case that the use of the charge of public nuisance (which carries a maximum sentence of life) was upgraded under government pressure and precisely because of the varied spectacles of 2012, including the Olympics and various royal events. In a home affairs select committee discussion in April of that year, the head of the Met police, Bernard Hogan-Howe, was asked by Conservative MP Michael Ellis:

Do you think that Olympic security arrangements or diamond jubilee security arrangements need to be reviewed in the light of [Oldfield’s Boat Race protest]? I particularly also want to ask you about the penalties available, because I notice from media coverage that the individual who disrupted the Boat Race appears to have been charged with a section 5 offence under the Public Order Act 1986, which is one of the most minor offences in the book, carries no custodial penalty option at all and usually only results in a small fine. Do we need to look at available offences?[75]

Hogan-Howe replied that the CPS were looking into a ‘more serious’ charge, and indeed that is what they did – but would Oldfield’s action have been punished so severely in a non-Olympic year, or if it had taken place at an event not attended and populated by members of the ruling class? It is clear that Oldfield’s action revealed several key elements in the struggle over land, behaviour and the class in whose name public order is upheld. In the next section, I want to turn to examine the question of the right to the land. I argue that to understand the history of public order law and the persistence of the figure of the sovereign in the present we need to explore the history of the commons as that against which public order is constituted.

  1. The Commons and the Public

The enclosure of the commons – originally understood as the ‘subdivision and fencing of common land into individual plots’[76] – has moved over the centuries from a discussion primarily concerning land and land-ownership to a broader debate (and various political struggles) concerning multiple types of ‘global commons’, everything from social, cultural and intellectual commons (cultures, knowledge, ideas, shared online resources) to DNA, natural features (rivers, forests) and the atmosphere we share. The contemporary resistance to various types of enclosure, whether real or virtual, would point to the idea that enclosures (or privatisation or ‘land-grab’) are not yet ‘complete’ because resources and access are still a matter of real contestation in many places. Yet for others, battling for the commons is a lost cause, not only because the commons themselves are doomed to fail because ‘rational’ self-interest will lead to the depletion of shared resources,[77] but because the battle has been ‘won’, and not by the commoners, but by the landowners, privateers, big business, the 1%. The struggle over the commons is the secret heart and truth of the discussion of the public, and it is this ancient and yet contemporary battle that the Public Order law seeks to obscure.

Recent attempts to resurrect the radical dimensions of the Magna Carta, to put commons back on the constitutional agenda and to reconnect the links between civil liberties and the commons – most notably in Peter Linebaugh’s 2004 The Magna Carta Manifesto – demand that the commons – ‘the theory that vests all property in the community and organises labour for the common benefit of all’ – must exist in both juridical forms and day-to-day material reality.[78] I argue that although enclosure and private property are dominant regimes, reflected in the legal forms that protect them, the commons understood in a broad sense remain a site of contestation across the planet, including in legal forms, and that to resurrect the seemingly-archaic term is to acknowledge an ongoing struggle over everything from land to ideas. As Silvia Federici puts it: ‘Ironically, the new enclosures have demonstrated that not only the common has not vanished, but also new forms of social cooperation are constantly being produced, including in areas of life where none previously existed like, for example, the internet’.[79]

But what, in the first place, does ‘the commons’ mean? Definitions abound: ‘resources that [are] jointly used and managed by a community of people’,[80] ‘The tangible assets of the commons include the vast quantities of oil, minerals, timber, grasslands, and other natural resources on public lands, as well as the broadcast airwaves and such public facilities as parks, stadiums, and civic institutions’,[81] ‘a property not subject to private ownership, regardless of the type of management employed’.[82] A lengthier and more precise definition is given by George Caffentzis:

Commons require at least three elements for their constitution: (a) a common-pool resource (i.e., a resource that combines “difficult excludability” and “high subtractibility”), (b) a set of people who desire continuous, long-term access to the resource (commoners), and (c) a set of rules and procedures that commoners use to manage the resource.[83]

What is clear from all careful definitions of the commons is that, contrary to Garret Hardin’s claim that ‘[e]ach man is locked into a system that compels him to increase his herd without limit – in a world that is limited’[84], commons of any kind are not simply resources that anyone can use in whatever way they choose, leading to depletion (and Hardin’s supposed ‘tragedy’), but carefully managed assets that are shared and overseen in such a way that exploitation and resource-stripping is minimised or absent. Linebaugh is careful to avoid presenting the commons as a kind of pre-existing ‘lump’ of readily accessible things; ‘To speak of the commons as if it were a natural resource is misleading at best and dangerous at worst – the commons is an activity and, if anything, it expresses relationships in society that are inseparable from relations to nature.’[85] So if we understand the commons as a verb – commoning – rather than a noun we get a clearer picture of the contestation surrounding the term, both conceptually and as in practice. As E.P. Thompson points out: ‘there cannot be a forest or chase in the country which did not have some dramatic episode of conflict over common right in the eighteenth century’.[86]

Thompson’s retelling of the conflict surrounding common rights alerts us to the constant fight to protect access to shared resources, and to resist private ownership (although as Simon Fairlie reminds us, the king or the Lord of the Manor might have ‘owned’ an estate in one sense of the word, ‘but the peasant enjoyed all sorts of so-called “usufructory” rights’[87]). As Fairlie also points out, the idea of private ownership as exclusive ownership, which dominates both the legal and everyday understanding of property today is a relatively modern idea, only a few hundred years old.[88] It is also a history that is primarily violent before it was ‘legal’. Karl Marx tells the story of the ‘expropriation of the agricultural population from the land’ in Capital, vol. 1 (1867) where he describes the transition from the open field system, to the conversion of arable land to sheep farming at the behest of wealthy landowners to the complete dispossession of commoners from land previously held in common:

The “glorious Revolution” brought into power … the landlord and capitalist appropriators of surplus-value. They inaugurated the new era by practising on a colossal scale thefts of state lands, thefts that had been hitherto managed more modestly. These estates were given away, sold at a ridiculous figure, or even annexed to private estates by direct seizure. All this happened without the slightest observation of legal etiquette.[89]

Marx argues that the legal formalities for the robbery of land actually came into force long after the seizure and annexation of the land itself (it is only in the 18th century that ‘the law itself becomes now the instrument of the theft of the people’s land’). What Marx’s analysis points to, apart from the sheer violence of creating landless populations (i.e. the burgeoning industrial proletariat) and depriving commoners from access to food and the means of sustenance, is a perhaps surprising disconnect between law and common rights. While there are specific ‘protections’ for practices of commoning in the Magna Carta and the Charter of the Forest, the ‘rights’ afforded to commoners (or historically, removed from them) are rarely, if ever, bestowed from the top down, but are rather undermined via the implicit consent of the state (turning a blind eye when landlords kick people off their land, or, by modern analogy, permitting multinationals to seize land and resources from indigenous populations while providing military protection to the companies against the people). Thus as Linebaugh and Marx imply, the restoration of common rights cannot simply be a matter of petitioning for legal reform, but must involve an active resistance to having these rights taken away in the first place, as well as a fight to recover them. This analysis reveals the limitations of a citizen-based approach to social rights as we saw in Balibar, but also reveals the imposition of a ‘static’ image of ownership and peace inherent in Public Order legislation. Common rights do not therefore have the same kind of structure or meaning as human rights as such, or other rights enshrined, and even then very reluctantly and often temporarily, by the state. Linebaugh is clear to differentiate common rights from human rights because, amongst other things, ‘being independent of the state, commoning is independent also of the temporality of the law and state’ and further, they ‘inhere in a particular praxis of field, upland, marsh, coast’.[90]

But there are rare resources in the law itself, at least historically. The Magna Carta, which remains on the statute books (although only three clauses – the freedom of the English Church, the “ancient liberties” of the City of London and a right to due process – are still on the books), alongside the Charter of the Forest, the longest statue in force in England (from 1217-1971, before being superseded by the Wild Creatures and Forest Laws Act 1971), give us a strong image of these ‘common rights’ and, although much of the language and the actions seem archaic (e.g. ‘Clause 3: All woods … shall be forthwith disafforested’ (i.e. such that forests are counted as ordinary land and not under royal jurisdiction)), there is clear evidence that certain customs are to be protected by these documents. Widows’ estovers, in the broadest sense ‘necessaries allowed by law’;[91] pannage, the right to pasture pigs in the forest and the grant to all cities, boroughs, ports and towns to ‘enjoy their liberties and free customs’ are all clear signs of the protection of common rights and customs central to these two documents. Yet the law has put in place so many other restrictions on the commons and commoning (between 1750 and 1850 there were approximately 4,000 Enclosure Acts of Parliament[92]) that it cannot in any sense be said to be an obvious first port of call to seek recourse for the protection of the commons. It is interesting to ask, however, whether legally-enforced reparations could go some way to ameliorating the damage done to ordinary people, through colonialism and the invention of private property (though, again, this is beyond the scope of this dissertation).

To return to the present day, with the destruction of the welfare state, we are thrown into a situation where the state has abdicated its role as a universal provider of provisions, and has instead taken up a much narrower, repressive role as the arbiter and punisher of any behaviour deemed ‘anti-social’. As Aditya Chakrabortty puts it in an ‘obituary’ of the welfare state:

The proximate cause of death was a change in child benefit from being available to all to a means-tested entitlement. That marked the end of one of the last remaining universal benefits, in turn causing a fatal injury to Welfare.[93]

The decline of the state, and, simultaneously, of ‘the statist model of revolution that for decades had sapped the efforts of radical movements to build an alternative to capitalism’,[94] we are thrust back into a world where people directly confront rapacious private property-owners, and where the law is rarely able (or willing) to prevent yet further expropriation. The enclosures that began with hedgerows and landowners have expanded to encompass everything that can be owned and sold. As Federici puts it: ‘The ‘new enclosures’ have also made visible a world of communal properties and relations that many had believed to be extinct or had not valued until threatened with privatization’.[95] It is this world of communal properties and relations that is obscured by the false allure of ‘the public’. This is, above all, an economic question. As Linebaugh puts it: ‘The message of the two charters … is plain: political and legal rights can exist only on an economic foundation.’[96] So while the law has frequently acted to enclose the commons, it also retains a potential to create mechanisms of redistribution. We are a long way away from the kinds of liberties enjoyed by the commoners protected in the Magna Carta and the Charter of the Forest (or at least a long way away from whatever their modern equivalents might look like). While we can see that there are many modes of resistance to the ever-enclosing force of big business and government policies, it is clear that without a sustained will to transform the constitution of the UK, and thus to put political and legal rights on a fair and equitable economic basis, it is likely that whatever commons remain, if any, will continue to be expropriated from the commoners – that is to say, almost everyone. The ‘public’ is a useful fiction mobilised by the state in order to prevent the posing of this question.

  1. Conclusion

In this brief final section, I want to summarise the arguments made so far and offer a few remarks on the tenacity of the state’s invocation of the public against the threat that lies in the power of commoning as an alternative political model. I began by presenting the myriad terms that circulate around the concept of the ‘public’ and that obscure our understanding of what it might mean as a political category backed up by force. These included the concept of ‘public opinion’ and ‘public interest’ and the ways in which these too can play into the hands of the state. I also examined the term ‘the Queen’s Peace’ with a view to arguing that the continuities between the sovereign and contemporary law remain extremely strong, even where we might believe that we have somehow ‘moved beyond’ regal privilege. The sovereign’s relation to public order here was also demonstrated to have a strong tie to control of the land and the extraction of money from commoners. The same is true today: as Waddington points out, with reference to the Highways Act 1980, ‘public’ routes are for ‘passing and re-passing’ and not for the holding of assemblies.[97] It is clear that historically there has been no ‘right’ to freedom of assembly or expression and that the relatively recent HRA is strongly tempered by terrorist legislation as well as the long-standing discretionary rights of the police to prevent a breach of the peace. Contemporary practices for recording public order offences similarly support the argument, made throughout this dissertation, that the enforcement of public order must be understood as an expression of sovereign power. Moving on to examine the concept of the sovereign and the sovereign individual at the heart of the legal system, I discussed Agamben’s arguments regarding Hobbes and the relationship between the sovereign and the multitude. Suggesting that the multitude remains a potential source of political action, I turned briefly to Balibar’s discussion of citizenship to extract a republican and insurrectionary concept of political self-governance. Ultimately suggesting that it was too difficult to apply this to the British context, I moved on to examine questions of negative freedom and the specific case of R v Oldfield and the issues raised by the law of ‘public nuisance’.

By addressing the question of the commons as a practice rather than as a lump of resources, I attempted to break with the static notion of space and time represented by the ‘Queen’s Peace’ model which underlies Public Order laws, and suggested that these laws are designed in part to bury the question (economic, political and social) regarding ownership and a different political model to the sovereign system we current live under. By examining long-standing ideas of the commons, we can better see how Public Order is an on-going project to protect private property and negate the possibility of the commons. These laws are and always have been part of the arsenal of class war used against those who might wish to take up public space in a different manner, to use it differently, and to have an entirely other model of positive freedom (rather than the freedom simply to not be bothered by another, as that possessed by the mini-sovereign who is the other side of the ‘public’ to the sovereign and in whose names these laws are also carried out). We are currently living in a period in which the ties between the state-as-sovereign and the punishment of the poor and the ‘poorly-behaved’ are becoming starker. Nowhere is this clearer than in the battle over public space, again a kind of proxy for the larger war over the commons. The state in the final analysis will always defend those with property over those without, but it will above all defend its own ‘right’ to property, which includes those people who are counted as ‘police property’. Thus the state’s own definition of property, like its definition of violence, encompasses both people and static property. To return to the opening question ‘Who is the Public of “Public Order”?’ we can reply that this ‘public’ is ultimately the sovereign operating via the violence of the police who pledge to uphold its ‘peace’ (as well as via courts and prisons). It also operates on behalf of those rich enough to not count as ‘police property’ (though to escape this categorisation is something permitted to very few and always only provisionally). By understanding the long-standing historical use made of the term ‘public’ we can hopefully see more clearly where the balance of power lies, and how we might begin to overturn it.

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[1] St. Augustine, On Order [De Ordine] (Silvano Borruso tr, first published 386, St. Augustine’s Press 2007) 3

[2] Dan Hind, The Return of the Public: Democracy, Power and the Case for Media Reform (Verso 2010) 5

[3] Iain Channing, The Police and the Expansion of Public Order Law in Britain, 1829-2014 (Routledge 2015) 23

[4] Étienne Balibar, Citizenship (Thomas Scott-Railton tr, Polity 2015) 144

[5] ‘Where 3 or more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons using or threatening unlawful violence is guilty of violent disorder’, Public Order Act 1986, s 2(1)

[6] Douglas Harper, ‘public’, Online Etymology Dictionary <http://www.etymonline.com/index.php?term=public> accessed 15 April 2016

[7] Harper (n 6)

[8] Balibar (n 4) 9

[9] Balibar (n 4) 10

[10] Balibar (n 4) 21

[11] Jürgen Habermas, ‘The Public Sphere: An Encyclopaedia Article’ in The Idea of the Public Sphere: A Reader (Jostein Gripsrud and others eds, Rowman & Littlefield 2010) 115

[12] Susan Easton and Christine Piper (eds), Sentencing and Punishment: The Quest for Justice (2nd edn, OUP 2008) 14-15

[13] Robert Reiner, The Politics of the Police (4th edn, OUP 2010) 3

[14]  Fiona Cownie, Anthony Bradney and Mandy Burton, English Legal System in Context (5th edn, OUP 2010) 244

[15]  Cownie, Bradney and Burton (n 14) 245

[16] Matthew Taylor and Robert Booth, ‘G4S Guards found not guilty of manslaughter of Jimmy Mubenga’, Guardian, 16 December 2014 <http://www.theguardian.com/uk-news/2014/dec/16/g4s-guards-found-not-guilty-manslaughter-jimmy-mubenga> accessed 15 April 2016

[17] UK Borders Act 2007

[18] Home Office, Counting Rules for Public Order Offences (Cm, 2016) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/513289/count-public-order-april-2016.pdf> accessed 17 April 2016

[19] Alan Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (2nd edn, CUP 2006) 28

[20] Channing (n 3) 114

[21] Channing (n 3) 20

[22] Cited in Channing (n 3) 20

[23] Channing (n 3) 19

[24] R v Howell [1982] QB 416

[25] Channing (n 3) 22

[26] P.A.J. Waddington, Liberty and Order: Public Order Policing in a Capital City (UCL Press 1994) 33

[27] Sir Carleton Kemp Allen, The Queen’s Peace (Stevens & Sons Ltd 1953) 3

[28] Allen (n 27) 14

[29] Allen (n 27) 20

[30] Waddington ( n 26) 31

[31] Channing (n 3) 9

[32] ‘Home Office Counting Rules for Recording Crime: Public Order Offences’, 62A, with effect from April 2016 <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/513289/count-public-order-april-2016.pdf> accessed 17 April 2016

[33] Mark Neocleous, The Fabrication of Social Order: A Critical Theory of Police Power (Pluto Press 2000) 6

[34] Neocleous (n 32) 6. We should briefly note here that the concept of the police has at various historical moments and places been a much broader concept: Polizei in German includes both law enforcement and more general responsibility for the welfare of society.

[35] C.B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (OUP 1962) 1

[36] Norrie (n 19) ix

[37] Macpherson (n 34) 3

[38] Macpherson (n 34) 275

[39] Reiner (n 13) 123

[40] Stavros Demetriou, ‘Replacing the ASBO with the IPNA’ (2015) 179(20) CL&J <http://www.criminallawandjustice.co.uk/features/Replacing-ASBO-IPNA> accessed 15 April 2016

[41] Demetriou (n 39)

[42] Cited in Channing (n 3) 155

[43] Reiner (n 13) p. 124

[44] Michael Shiner, ‘Stop and Search: The Police Must Not Revive This Discredited Tactic’ The Guardian (London, 19 October 2015) <http://www.theguardian.com/commentisfree/2015/oct/19/stop-and-search-riots-2011-section-60-knife-crime-police-chiefs> accessed 15 April 2016

[45] David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (OUP 2001) 195

[46] Macpherson (n 34) 157

[47] Giorgio Agamben, Stasis: Civil War as a Political Paradigm (Homo Sacer, II, 2) (Nicholas Heron tr, Edinburgh UP 2015) 27-29

[48] Cited in Agamben (n 46) 33

[49] Agamben (n 46) 34

[50] Agamben (n 46) 35

[51] Agamben (n 46) 39

[52] Agamben (n 46) 40

[53] Agamben (n 46) 40

[54] Agamben (n 46) 41

[55] Agamben (n 46) 49

[56] Balibar (n 4) 1

[57] Balibar (n 4) 2

[58] Balibar (n 4) 3

[59] Balibar (n 4) 31

[60] Balibar (n 4) 32

[61] Balibar (n 4) 47

[62] Balibar (n 4) 48

[63] Balibar (n 4) 51

[64] Balibar (n 4) 85-86

[65] Balibar (n 4) 87

[66] Balibar (n 4) 131

[67] David Williams, Keeping the Peace: The Police and Public Order (Hutchinson 1967) 9

[68] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 11

[69] Channing (n 3) 17

[70] Vikram Dodd, ‘School Questioned Muslim Pupil about Isis After Discussion on Eco-Activism’ The Guardian (London 22 September 2015) <http://www.theguardian.com/education/2015/sep/22/school-questioned-muslim-pupil-about-isis-after-discussion-on-eco-activism> accessed 17 April 2016

[71] Isaiah Berlin, Liberty: Incorporating Four Essays on Liberty (Henry Hardy ed, OUP 2002) 169

[72] 2 Bing NC 281

[73] 2 QB 169

[74] R v Trenton Oldfield [2012] Sentencing Remarks of HH Judge Molyneux

<https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Judgments/sentencing-remarks-r-v-oldfield.pdf> accessed 17 April 2016

[75] Home Affairs Committee, Minutes of Evidence (HC 17 April 2012, 1929-i) Q 52 <http://www.publications.parliament.uk/pa/cm201012/cmselect/cmhaff/1929i/120417.htm> accessed 15 April 2016

[76] Simon Fairlie, ‘A Short History of Enclosure in Britain’ (2010) 7 Land Magazine <http://www.thelandmagazine.org.uk/articles/short-history-enclosure-britain> accessed 15 April 2016

[77] As in Garrett Hardin, ‘Tragedy of the Commons’ (1968) 162(3859) Science 1243, which Peter Linebaugh describes as denying ‘several millennia of experience in the mutuality and negotiation of communing’ in The Magna Carta Manifesto: Liberties and Commons for All (University of California Press 2008) 9-10

[78] Linebaugh (n 76) 6

[79] Silvia Federici, ‘Feminism and the Politics of the Common’ [2011] The Commoner <http://www.commoner.org.uk/wp-content/uploads/2011/01/federici-feminism-and-the-politics-of-commons.pdf > accessed 15 April 2016

[80] Christian Siefkes, ‘The Commons of the Future: Building Blocks for a Commons-based Society’ [2009] The Commoner <http://www.commoner.org.uk/wp-content/uploads/2009/03/siefkes_future-commons.pdf> accessed 15 April 2016

[81] David Bollier, ‘Reclaiming the Commons’ [2002] Boston Review <http://bostonreview.net/archives/BR27.3/bollier.html> accessed 15 April 2016

[82] Paul B. Hartzog, ‘Global Commons: Is a Definition Possible?’ [2003] Panarchy <http://www.panarchy.com/Members/PaulBHartzog/Papers/Global%20Commons.pdf> accessed 15 April 2016

[83] George Caffentzis, ‘Autonomous Universities and the Making of the Knowledge Commons’ [2008] The Commoner <http://www.commoner.org.uk/wp-content/uploads/2008/12/caffentzis_autonomous-universities.pdf> accessed 15 April 2016

[84] Hardin (n 76)

[85] Linebaugh (n 76) 279

[86] E.P. Thompson, Customs in Common: Studies in Traditional Popular Culture (The Merlin Press 1991) 104

[87] Fairlie (n 75) 3. ‘Usufructory’ refers to the ‘fruits’ of the land.

[88] Fairlie (n 75) 3

[89] Karl Marx, Capital: A Critique of Political Economy, Vol 1 (Ben Fowkes tr, first published 1867, Penguin 1990) 884

[90] Linebaugh (n 76) 45

[91] Linebaugh (n 76) Glossary

[92] Cited in Fairlie (n 75)

[93] Aditya Chakrabortty, ‘The Welfare State, 1942-2013, Obituary’ The Guardian (London, 8 January 2013) <http://www.theguardian.com/commentisfree/2013/jan/08/welfare-state-1942-2013-obituary> accessed 15 April 2016

[94] Federici (n 78) 1

[95] Federici (n 78) 1

[96] Linebaugh (n 76) 6

[97] Waddington (n 26) 35