Jurisprudence & Reparative Politics

This addendum to my Four Essays was written in response to a reader who asked the following question, “Philosophically, I can understand what you mean, but what do you mean in political terms?”

The following questions were implied by my respondent’s explicit question, “What political party can you support? Who can you vote for? What legislation can you pass? How can you enforce this legislation?”

Harried by these implied questions, I explicated each question and gave to each of them the same reply, “I would prefer not to.”

My respondent then asked me, “Well, tell me concretely: what would you prefer to do?”

And I responded to this question with the text below.

[…] So, what does the art of making reparations look like as a political practice? 

Well, in “abstract” terms, I hold that reparative politics would, first, artfully deconstruct political organizations that establish and enforce claims to property, these being organizations that privilege pipelines; and, second, reparative politics would  (re-)construct political organizations that foster shared access and responsibility, these being organizations that privilege leaky designs.

In “concrete” terms, I hold that reparative politics couples direct action with due process: it takes direct action to challenge statutory and regulatory laws that establish and enforce claims to property, then it defends direct action with due process, creating case law in favor of shared access and responsibility.

Reparative politics proceeds case by case, and it prefers agitating and litigating to legislating and regulating. But don’t get it twisted: reparative politics is not hostile to statutory and regulatory law in general; rather, it is only hostile to statutes and regulations that are not vital to practicing direct action and defending the practice of direct action with due process.

Why should reparative politics eschew legislation and regulation in favor of agitation and litigation? Well, as I see it, any and all reparations achieved via legislation and regulation without agitation and litigation would be, by definition, artless reparations and, concomitantly, the only artful reparations are those that are achieved in and through direct action and defended by due process. Statutes and regulations that are applied without due process could only ever make reparations that are “patching, conservative, static” because they would not attend to particular situations and to present needs but, instead, they would only attend to generalizations derived from past experience. Recall here that the making of artful reparations assumes that “everything is changing constantly: and that at every moment we use the defects of the present state as the starting point for the definition of the new state.” This assumption is, of course, the fundamental assumption that conditions all due process. As Ivan Illich puts it in Tools for Conviviality, “[due process] applies existing law to actual situations. Like cases are decided alike, or the facts are found to be of a different significance today. [...] In the process the social experience of the past is readapted to present needs. The present decision will in turn serve as reference in future cases.”

As I see it, direct action is the practice that discloses our particular situation, our present wants needs. In turn, due process readapts past experience to attend to our particular situation, to our present wants and needs and, going further, due process also registers the particularities of our situation and our present wants and needs for future reference. In other words, it is through direct action that we prepare to make reparations, artfully deconstructing wish fulfillments and defenses so as to enable us to acknowledge that which disturbs; and it is through due process that we make reparations, sublimating disturbances via the artful reconstruction of that which has been disturbed. 

To make my position more clear, I ought also to state that direct action is *not* a form of protest. On this point, I defer David Graeber, who articulates difference between direct action and protest with both concision and force in the following passage from The Democracy Project: 

[T]he difference between protest and direct action [is that] protest, however militant, is an appeal to [existing] authorities to behave differently; direct action [...] is a matter of proceeding as one would if the existing structure of power did not exist. Direct action is, ultimately, the defiant insistence on acting as if one is already free. [...] Everyone is perfectly well aware the power structure does exist. But acting this way denies any moral authority to the inevitable, usually violent, response.

If we assume that we will be oppressed and we do not act because we fear being oppressed, we shall never discover whether or not we truly are oppressed or if our oppression is a wishful or defensive fantasy that we have constructed in order to keep us from exercising our freedom.  The surest way to deconstruct wishful and defensive fantasies that deny freedom is to act as if we are free and to face whatever oppression comes: and this precisely what direct action is all about. Protest, by contrast, is an appeal to an oppressor for a reprieve from oppression and, as such, protest acknowledges the “legitimate” authority of the oppressor, maintaining wishful and defensive fantasies that deny freedom.

• Direct action is practiced by black peoples, indigenous peoples and women when they act as if white men are not god’s favorites, as if white men are not naturally superior, as if white men are not on the right side of historical accident, as if nothing could ever justify white male privilege. By contrast, protest in this regard justifies white male privilege by appealing to the authority and privilege of white men and asking them for a reprieve from oppression.

• Direct action is practiced by the “undeserving” when they act as if there is no way to legitimately separate the “deserving” from the “undeserving”, as if no one truly “deserves” greater access and more resources than anyone else. By contrast, protest in this regard is an appeal to authorities who believe that they can legitimately determine who is “deserving” and who is “undeserving”.

• Direct action is practiced by the underprivileged and powerless multitudes when they act as if nothing is stopping them from accessing and drawing from streams and reservoirs of value that privileged and powerful oligarchs have fraudulently claimed for themselves. By contrast, protest in this regard is an appeal to authorities who believe that they can legitimately determine who owns a given stream or reservoir of value.

• Direct action is practiced by humans who revere Mother Earth when they act as if nonhuman wants and needs are fluent with and insubordinate to human wants and needs. By contrast, protest in this regard is an appeal to the authority of humans over nonhumans.

But direct action on its own does not make reparations, it only prepares the way. Reparations are made when due process is used to defend those who practice direct action from whatever oppression they face in response to their direct action. Such a use of due process by the oppressed runs counter to the use of due process by the oppressor: the oppressor believes that due process is primarily a means for them to justify their oppression of others, and they are outraged by when due process serves to defend direct actions by the oppressed against their oppression. Ivan Illich, in Tools for Conviviality, once again puts a fine point on the matter:

The use of [due process] for the purpose of hampering, stopping, and inverting the [advance of patriarchal capitalism] will appear to its managers and addicts as a misuse of the law and as subversion of the only order which they recognize. The use of [due process] to [defend direct action] appears corrupt and criminal to the bureaucrat, even one who calls himself a judge.

Reparative politics is about jurisprudence, but not the analytic and normative jurisprudence that the oppressor uses to justify oppression. Reparative politics is about “transformative jurisprudence” — it is about the prudence that tells us to engage in direct action only if and when we are prepared to defend direct action with due process. Transformative jurisprudence tells us that, before we practice direct action, we ought to have an idea of the case we wish to make and of the statutes and regulations to be amended in and through the making of our case. This is not at all to say that one must be certain that one can make a case before one acts; rather, it is only to say that one must have an idea of the case one wishes to make before one acts. Transformative jurisprudence encourages and supports our *attempts* to make cases: it does not prevent us from failing to make cases but, instead, helps us learn from our failures to make cases.

Returning to your question, political organizing for the making of artful reparations does not mean organizing to win elections, nor does it mean organizing to pass legislation, nor does it mean organizing to enforce regulations. Winning elections, passing legislation, and enforcing regulations are only peripheral concerns with respect to making artful reparations. Indeed, whenever possible, reparative politics will eschew the running of political campaigns, the setting of legislative agendas, the filing of appeals to regulators. 

Political organizing for the making of artful reparations means organizing for direct action and for due process in defense of direct action. This is to say, in other words, that the agent of artful reparations identifies themself as an agitator and litigator first: they may occasionally run for election, pass legislation, and enforce regulations, but they only do so in order to complement the practice of direct action and to complement due process in defense of direct action. If winning elections, passing legislation, and enforcing regulations demands that we forsake participating in direct action and that we cease defending direct action with due process, then we, as agents for reparations, ought to forsake the winning of elections, the passing of legislation, and the enforcement of regulations. It is only the agent of oppression who identifies themself as an executive, a legislator, or a regulator first.

Indeed, one knows that one is dealing with an agent of oppression, as opposed to an agent of reparations, when one is being told to prioritize the winning of elections, the passing of legislation, and the enforcement of regulations over and above the practice of direct action and due process in defense of direct action. If one would practice reparative politics, one should ask oneself the following question, “Is the victory of this candidate, the passage of this legislation, or the enforcement of this regulation a vital condition for a prospective direct action or for due process in defense of direct action?” If so, declare your support for the campaign, the law, or the appeal to a regulator. If not, withhold your support. If you can’t tell either way, proceed with caution to probe the situation in order to find out.