I invented this law at the train station of Neubrandenburg, Germany in the late summer of 1990. Outside the train station was a major, for Neubrandenburg at any rate, intersection. During the day, there was a fairly brisk traffic of pedestrians, cars, and trucks and a set of traffic lights to regulate it. Later in the evening, however, the vehicle traffic virtually ceased while the pedestrian traffic, if anything, swelled to take advantage of the cooler evening breeze. Regularly, between 9 and 10 pm there would be 50 or 60 pedestrians, not a few of them tipsy, who would cross the intersection. The lights were timed, I suppose, for vehicle traffic at midday and not adjusted for the heavy evening foot-traffic. Again and again 50 or 60 people waited patiently at the corner for the light to change in their favor: four minutes, five minutes, perhaps longer. It seemed an eternity. Lying on the Mecklenburg Plain, the landscape of Neubrandenburg is flat as a pancake. Peering each way from the intersection, then, one could see a mile or so of roadway, with, typically, no traffic at all. Very occasionally a single, small Trabant made its slow, smoky way to the intersection.
Twice perhaps in the course of roughly five hours of observing this scene, did a pedestrian cross against the light and then always to a chorus of scolding tongues and fingers wagging in disapproval. I too became part of the scene. If I had mangled my last exchange in German, sapping my confidence, I stood there with the rest for as long as it took for the light to change, afraid to brave the glares that awaited me if I crossed. If, more rarely, my last exchange in German had gone well and my confidence was high, I would cross against the light, thinking that it was stupid to obey a minor law that, in this case, was so contrary to reason.
It surprised me how much I had to screw up my courage merely to cross a street against general disapproval. How little my rational convictions seemed to weigh against the pressure of their scolding. Striding out boldly into the intersection with apparent conviction made a more striking impression perhaps but it required more courage than I could normally muster.
On the Importance of Insubordination
Acts of disobedience are of interest to us when they are exemplary and especially when, as an example, they set off a chain reaction, prompting others to emulate them. Then we are in the presence less of an individual act of cowardice or conscience (and perhaps both!) than a social phenomenon that can have massive political effects. Multiplied many thousand-fold, such petty acts of refusal may, in the end, make an utter shambles of the plans dreamed up generals and heads of state. Such petty acts of insubordination typically make no headlines. But just as millions of anthozoan polyps create, willy-nilly, a coral reef, so do thousands upon thousands of acts of insubordination and evasion create an economic or political barrier reef of their own. A double conspiracy of silence shrouds these acts in anonymity. The perpetrators rarely seek to call attention to themselves; their safety lies in their invisibility. For their part, officials are reluctant to call attention to rising levels of disobedience; to do would risk encouraging others and call attention to their fragile moral sway. The result is an oddly complicitous silence that all but expunges such forms of insubordination from the historical record.
And yet, such acts of what I have elsewhere called “every-day forms of resistance” have had enormous, often, decisive, effects on the regimes, states, and armies at which they are implicitly directed. The defeat of the Southern Confederate States in America’s great Civil War can almost certainly be attributed to a vast aggregation of acts of desertion and subordination. In the fall of 1862, little more than a year after the war began, there were widespread crop-failures in the South. Soldiers, particularly those from the non-slave-holding back-country were getting letters from famished families urging them to return home. Many thousands did, often as whole units, taking their arms with them. Having returned to the hills, most of them actively resisted conscription for the duration of the war.
Napoleon’s wars of conquest were ultimately crippled by comparable waves of disobedience. While it is claimed that Napoleon’s invading soldiers brought the French Revolution to the rest of Europe in their knapsacks, it is also no exaggeration to see that the limits of these conquests were sharply etched by the disobedience of the men expected to shoulder those knapsacks. From 1794 to 1796 under the Republic, and then again from 1812, as Emperor, the difficulty of scouring the countryside for conscripts was crippling. Families, villages, local officials, and whole cantons conspired to welcome back recruits who had fled and to conceal those who had evaded conscription altogether, some by the severing one or more fingers of their right hand.
Stepping back a moment, it’s worth noticing something particular about these acts: they are virtually all anonymous, they do not shout their name. In fact their unobtrusiveness contributes to their effectiveness. Desertion is quite different from an open mutiny that directly challenges military commanders. It makes no public claims, it issues no manifestos; it is “exit” rather than “voice”. And yet, once apprehended, it constrains the ambitions of commanders who know they may not be able to count on their conscripts. During the unpopular American War in Vietnam, the reported “fragging” (i.e. throwing a fragmentation grenade) at officers who repeatedly exposed their men to deadly patrols was a far more dramatic and violent, but nevertheless still anonymous act meant to lessen the deadly risks of war for conscripts.
Quiet, anonymous, and often complicitous law-breaking and disobedience may well be the historically preferred mode of political action for peasant and subaltern classes for whom open defiance is too dangerous. For the two centuries from roughly 1650 to 1850, poaching (of wood, game, fish, kindling, fodder, etc.) from Crown or private lands was the most “popular” crime in England. By “popular” I mean both the most frequent and the most heartily approved of by commoners. Since the rural population had never accepted the claim of the crown or the nobility to “the free gifts of nature” in forests, streams and wastelands, they violated those property rights en masse repeatedly, enough to make the elite claim to property rights in many areas a dead letter. And yet, this vast conflict over property rights was conducted surreptitiously from below with virtually no public declaration of war. It is as if villagers had managed, de facto, defiantly to practice their claim to such lands without ever making a formal claim. It was often remarked that the local complicity was such that game keepers could rarely find any villager who would serve as state’s witness.
In the historical struggle over property rights the antagonists on either side of the barricades have used the weapons that most suited them. Elites, controlling the law-making machinery of the state have deployed bills of enclosure, paper titles, and freehold tenure, not to mention the police, game-keepers, forest guards, the courts, and the gibbet to establish and defend their property rights. Peasants and subaltern groups, having no access to such heavy weaponry, have, instead relied on techniques such as poaching, pilfering, and squatting to contest those claims and assert their own. Unobtrusive and anonymous, like desertion, these ‘weapons of the weak’ stand in sharp contrast to open public challenges that aim at the same objective. Thus, desertion is a lower risk alternative to mutiny, squatting a lower risk alternative to a land invasion, poaching a lower risk alternative to the open assertion of rights to timber, game, or fish. For most of the world’s population today, and most assuredly for subaltern classes historically, such techniques have represented the only quotidian form of politics available. When they have failed, they have given way to more desperate, open conflicts such as riots, rebellions, and insurgency. These bids for power erupt suddenly into the official record, leaving traces in the archives beloved of historians and sociologists who, having documents to batten on, assign them a pride of place all out of proportion to the role they would occupy in a more comprehensive account of class struggle. Quiet, unassuming, quotidian insubordination, because it usually flies below the archival radar, waves no banners, has no office-holders, writes no manifestos, and has no permanent organization, escapes notice. And that’s just what the practitioners of these forms of subaltern politics have in mind: to escape notice. You could say that, historically, the goal of peasants and subaltern classes has been to stay out of the archives. When they do make an appearance, you can be pretty sure that something has gone terribly wrong.
If we were to look at the great bandwidth of subaltern politics all the way from small acts of anonymous defiance to massive popular rebellions we would find that outbreaks of riskier open confrontation are normally preceded by an increase in the tempo of anonymous threats and acts of violence: e.g. threatening letters, arson and threats of arson, cattle houghing, sabotage and night-time machine-breaking, and so on. Local elites and officials knew these as the likely precursors of open rebellion; and they were intended to be read as such by those who engaged in them. Both the frequency of insubordination and its ‘threat level’ (pace Office of Homeland Security) were understood by contemporary elites as early warning signs of desperation and political unrest. One of the first op-eds of the young Karl Marx noted in great detail the correlation between, on the one hand, unemployment and declining wages among factory workers in the Rhineland and the frequency of prosecution for the theft of firewood from private lands on the other.
The sort of law-breaking going on here is, I think, a special sub-species of collective action. It is not often recognized as such, in large part because it makes no open claims of this kind and because it is, almost always, self-serving at the same time. Who is to say whether the poaching hunter is more interested in a warm fire and rabbit stew than in contesting the claim of the aristocracy to the wood and game he has just taken? It is most certainly not in his interest to help the historian with a public account of his motives. The success of his claim to wood and game lies in his acts and motives remaining shrouded. And yet, the long run success of this law-breaking depends on the complicity of his friends and neighbors who may believe in his and their right to forest products and may themselves poach and, in any case, will not give witness against him or turn him to the authorities.
One need not have an actual conspiracy in order to achieve the practical effects of a conspiracy.
More on Insubordination
To see how tacit coordination and law-breaking can mimic the effects of collective action without its inconveniences and dangers, we might consider the enforcement of speed limits. Let’s imagine that the speed limit for cars is 55 miles per hour. Chances are that the traffic police will not be much inclined to prosecute drivers going 56, 57, 58 or 60 miles per hour even though it is technically a violation. This ‘ceded space of disobedience’ is, as it were, seized and becomes occupied territory and soon much of the traffic is moving along at roughly 60mph. What about 61, 62, 63mph? Drivers going just a mile or two above the de facto limit are, they reason, fairly safe. Soon the speeds from, say, 60 to 65mph bid fair to become conquered territory as well. All of the drivers, then, going about 65mph come absolutely to depend for their relative immunity from prosecution on being surrounded by a veritable capsule of cars traveling at roughly the same speed. There is something like a contagion-effect that arises from observation and tacit coordination taking place here although there is no “Central Committee of Drivers” meeting and plotting massive acts of civil disobedience. At some point, of course, the traffic police do intervene to issue fines and make arrests and the pattern of their intervention sets terms of calculation that drivers must now consider when deciding how fast to drive. The pressure at the upper end of the tolerated speed, however, is always being tested by drivers in a hurry and if, for whatever reason, the enforcement lapses; the tolerated speed will expand to fill it. As with any analogy, this one must not be pushed too far. Exceeding the speed limit is largely a matter of convenience, not a matter of rights and grievances, and the dangers to speeders, from the police, are comparatively trivial.
I’ve noticed a similar pattern in the way that what begin as ‘short-cuts’ in walking paths often end up becoming paved walkways. Virtually all of the lanes in older cities that grew from smaller settlements were created in precisely this way; they were the formalization of daily pedestrian and cart tracks (e.g. from the well to the market, from the church or school to the artisan quarter, etc.). A good example of the principle that “We Make the Path by Walking”.
The movement from practice to custom, to rights inscribed in law is, in fact, an accepted pattern in both common and positive law. In the Anglo-American tradition, it is represented by the law of adverse possession, whereby, a pattern of trespass or seizure of property, repeated continuously for a certain number of years can be used to claim a right that would then be legally protected. In France, a practice of trespass that could be shown to be of long-standing would qualify as a custom and, once proved, would establish a right in law.
Under authoritarian rule it seems patently obvious that subjects who have no elected representatives to champion their cause and are denied the usual means of public protest (demonstrations, strikes, organized social movement, dissident media, etc.), would have no other recourse than foot-dragging, sabotage, poaching, theft and, ultimately, revolt. Surely the institutions of representative democracy and the freedoms of expression and assembly afforded modern citizens make such forms of dissent obsolete. After all, the core purpose of representative democracy is precisely to allow democratic majorities to realize their claims, however ambitious, in a thoroughly institutionalized fashion.
It is a great irony that this great promise of democracy is rarely realized in practice. Most of the great political reforms of the 19th and 20th centuries have been accompanied by massive episodes of civil disobedience, riot, law-breaking, the disruption of public order and, at the limit, civil war. Such tumult, I would argue, not only accompanied dramatic political changes but was, often, absolutely instrumental in bringing it about. Representative institutions and elections by themselves, sadly, seem rarely to bring about major changes in the absence of the force majeure afforded by, say, a great economic depression or international war. Owing to the concentration of property and wealth in liberal democracies and the privileged access to media, culture, and political influence these positional advantages afford the richest stratum, it is little wonder that, as Gramsci noted, giving the working class the vote did not translate into radical political change. Ordinary parliamentary politics, then, is noted more for its immobility than for facilitating major reforms.
We are obliged; if this assessment is broadly true, to confront the paradox of the contribution of law-breaking and disruption to democratic political change. Taking 20th century United States as a case in point, we can identify two major policy reform periods; the Depression of the 1930s and the Civil Rights Movement of the 1960s. What is most striking about each, from this perspective, was the vital role of massive disruption and threats to public order to the process of reform.
The great policy shifts represented by unemployment compensation, massive public works, social security, and the Agricultural Adjustment Act were, to be sure, abetted by the emergency of the world depression. But the way in which the economic emergency made its political weight felt was not through statistics on income and unemployment but through rampant strikes, looting, rent boycotts, quasi-violent sieges of relief offices and riots that put what my mother would have called “the fear of God” in business and political elites. They were thoroughly alarmed at what seemed at the time to be potentially revolutionary ferment. The ferment, in question, was, in the first instance, not institutionalized. That is to say, it was not shaped by political parties, trade unions, or recognizable social movements, it represented no coherent policy agenda; instead it was genuinely unstructured, chaotic, and full of menace to the established order. For this very reason, there was no one to bargain with, no one to credibly offer peace in return for policy changes. The menace was directly proportional to its lack of institutionalization. One could bargain with a trade union or a progressive reform movement, institutions that were geared into the institutional machinery. A strike was one thing; a wild-cat strike was another; even the union bosses couldn’t call off a wild-cat strike. A demonstration, even a massive one, with leaders was one thing; a rioting mob was another; there were no coherent demands, no one to talk to.
The ultimate source of the massive spontaneous militancy and disruption that threatened public order lay in the radical increase in unemployment and the collapse of wage-rates for those lucky enough to still be employed. The normal conditions that sustained routine politics suddenly evaporated. Neither the routines of governance nor the routines of institutionalized opposition and representation made much sense. At the individual level the de-routinization took the form of vagrancy, crime, and vandalism. Collectively, it took the form of spontaneous defiance in riot, factory occupations, violent strikes, and tumultuous demonstrations. What made the rush of reforms possible were the social forces unleashed by the depression which seemed beyond the ability of political elites, property owners, and, it should be noted, trade unions and left wing parties to master. The hand of the elites was forced.
An astute colleague of mine once observed that liberal democracies in the West were generally run for the benefit of the top, say, 20% of the wealth and income distribution. The ‘trick’, he added, to keeping this scheme running smoothly has been to convince, especially at election time, the next 30 to 35% of the income distribution to fear the poorest half more than they envy the richest 20%. The relative success of this scheme can be judged by the persistence of income inequality and, more recently, its sharpening over more than a half century. This scheme comes undone at times of general crisis, when popular anger overflows its normal channels and threatens the very parameters within which routine politics operates. The brutal fact of routine, institutionalized liberal democratic politics is that the interests of the poor are largely ignored until and unless a sudden and dire crisis catapults them into the streets. As Martin Luther King noted, “A riot is the language of the unheard”. Large scale disruption, riot, and spontaneous defiance have always been the most potent political recourse of the poor. Such activity is not without structure. It is structured by informal, self-organized, and transient networks of neighborhood, work and family that lie outside the formal institutions of politics. This is structure alright, just not the kind amenable to institutionalized politics.
The job of trade unions, parties, and even of radical social movements is precisely to institutionalize unruly protest and anger. Their function is, one might say, to try to translate anger, frustration, and pain into a coherent political program that can be the basis of policy-making and legislation. They are the transmission belt between an unruly public and rule-making elites. The implicit assumption is that if they do their jobs well, they not only fashion political demands that are, in principle, digestible by legislative institutions but that they will, in the process, discipline and regain control of the tumultuous crowds by plausibly representing their interests, or most of them, to the policy-makers. Those policy-makers negotiate with such “institutions of translation” on the premise that they command the allegiance of, and can, hence, control the constituencies which they purport to represent. In this respect, it is no exaggeration to say that organized interests of this kind are parasitic on the spontaneous defiance of those whose interests they presume to represent. It is that defiance that is, at such moments, the source of what influence they have as governing elites strive to contain and channel insurgent masses back into normal politics. Another paradox: at such moments, organized progressive interests achieve a level of visibility and influence on the basis of defiance that they neither incited nor controlled, and they achieve that influence on the presumption they will then be able to discipline enough of that insurgent mass to reclaim it for politics as usual. If they are successful, of course, the paradox deepens, since as the disruption on which they rose to influence subsides, so does their capacity to affect policy.
I began this essay with the fairly banal example of crossing against the traffic lights in Neubrandenburg. The purpose was not to urge law-breaking for its own sake, still less for the petty reason of saving a few minutes. My purpose was rather to illustrate how ingrained habits of automatic obedience could lead to a situation that, upon reflection, virtually everyone would agree was absurd. Virtually all the great emancipatory movements of the past three centuries have initially confronted a legal order, not to mention police power, arrayed against them. They would scarcely have prevailed had not a handful of brave souls been willing to breach those laws and customs (e.g. sit-ins, demonstrations, mass violations of pass laws). Their disruptive actions, fueled by indignation, frustration, and rage made it abundantly clear that their claims could not be met within the existing institutional and legal parameters. Thus immanent in their willingness to break the law was not so much a desire to sow chaos as to re-institute a more just legal order. To the extent that our current ‘rule of law’ is more capacious and emancipatory than its predecessors, we owe much of that gain to law-breakers.