Legal Theory Encourages Alternative Truths in Construing Law

Legal Theory Encourages Alternative Truths in Construing Law

Author:

Samantha Hopkins

Queen’s University, Belfast

 

 

 

 

The concept of “alternative truths” embodies the fundamental differences of perspective inherent in individuals. One person may perceive a woman wearing hijab as patriarchal oppression, while another perceives the same as freedom of (religious) expression. These alternative truths are omnipresent in society – though we are often oblivious to them. Methods of legal theory thus aim to create awareness that our preferred views are not the only ones possible. An example of this is the recent Feminist Judgements project,[1] which is based convincingly around the concept that there is more than one way of construing law: by applying a different “lens” to the issue at hand, the substantive law remains the same, but the result differs. Evidently, this awareness of different perspectives can have a profound practical outcome in a legal sense.

A pertinent area in which to examine the concept of “alternative truth” is that of riots – specifically, the London 2011 riots and Ferguson 2014 – due to the radically different characterisation of the participants which can be formed, based on the particular view one takes. The general assumption regarding riots is that they are out of control, violent, disorganised – but if the Feminist Judgments project can so totally alter the outcome of cases through the application of different perspectives, then the same process may be applied to rioting. For example, are rioters simply “thugs”, their actions “criminality, pure and simple”^[2] or are they expressing dissatisfaction with their status in society? In order to better understand any alternative truths, two “lenses” will be employed here: firstly, a postcolonial one (as race was heavily involved in both events); and secondly, a Marxist one (due to the majority of (London) rioters being working class). The following overview of the basic facts surrounding the events provides a point of reference for this discussion.

 

The London riots were triggered by the fatal police shooting of Mark Duggan, a black man, in an area where tension between police and community was high.[3] This led to a protest march by residents to the local police station demanding explanation.[4] After less than three hours, a young girl allegedly approached the police (some say with a bottle or leaflet) and was set upon by them.[5] Even at this early stage, alternative truths are evident: in addition to it being unclear whether or not there was an initial attack on the young girl, the Metropolitan Police Commander stated that the peaceful protest was then “hijacked by a “small number of criminal element”[6], while others state that violence was incited by the police attack. Once the violence started, it escalated into five days of widely-reported arson, vandalism and looting.

Ferguson was likewise triggered by a fatal police shooting, this time of an unarmed black teenager, Michael Brown. The first “wave” of unrest began the day after his death, developing from a peaceful memorial vigil into considerable disturbances – due to a large extent to the insensitive manner in which police handled the matter (driving over his memorial, for example[7]). The second “wave” occurred in November of the same year, after the grand jury decided against indicting Wilson (the white officer who killed Brown), prompting violent police tactics (use of tear gas and military vehicles, for example) in response to arguably non-violent protests. Here again, alternative truths are apparent: police reports cited various reasons for shooting Brown, including robbery[8] and that he attacked Wilson,[9] while eyewitnesses have repeatedly and unanimously asserted that the officer essentially assaulted him.[10]

 

Race was evidently an issue in both these events (though possibly to a greater extent in Ferguson). Hence, the first perspective taken on the protests is postcolonialism. This embodies the legacy which colonialism has imprinted on modern society – the shadow of racism, discrimination and white paternalism across a range of areas. The postcolonial “lens” allows one to perceive the alternative truth in both events – that they are not “pure criminality”[11] but rather a wholly justified and long overdue bursting of the floodbanks of restraint which black communities in both the UK and America have hitherto displayed in the face of targeted discrimination.

Ferguson is a largely black community, while Tottenham is one of the most ethnically diverse areas in London[12], suggesting that race may be instrumental to both events (before one even considers that the victims were also black). Indeed, Ferguson, along with the numerous other American police shootings of 2014, led to the “Black Lives Matter” movement[13], highlighting the brutal police treatment of such people for minor – or in many cases, including that of Tamir Rice, for example, non-existent[14] – infractions. This movement emphasises the differential treatment between black and white citizens in the US – while Mike Brown, an unarmed black teenager, was killed by police, Dylann Roof, a white man who shot nine black churchgoers, was safely taken into custody. The story is repeated every few months; if this discrepancy is not due, at least in part, to race, what then can be its cause?

A trait common to London and Ferguson is the media demonization of both initial victims and protesters, often using racial stereotypes: a cropped photo of a severe-looking Mark Duggan (actually visiting his daughter’s grave) was used to corroborate the statement that he was a crack cocaine dealer and “lived by the gun”[15]; Mike Brown was accused of robbing a nearby store, leading media to imply that his fate was deserved– despite the fact that Wilson hadn’t even known of the robbery^[16].  Patricia Williams calls this a “game of Victim Responsibility”: no matter how long ago, or even whether, a minor offence occurred, it will be dredged up by media and police to support the claim that the victim deserved their treatment.[17] This media dehumanization of black victims is very much at odds with the general treatment of white offenders: Dylann Roof was “mentally ill”[18]; the Planned Parenthood killer was a “gentle loner”.[19] Further, white criminality is more likely to be overlooked: when one examines the statistics of those arrested after the London riots, a disproportionate number (when compared to the 25% population statistic[20]) were black (55%) – but it is these crimes towards which police are more proactive, so this anomaly is to be expected.[21] This may be attributed to the aforementioned historical legacy when black people were treated as “three-fifths of a person” – society’s criminality has been projected on to them.[22] These double standards, while recorded with statistical transparency, are often only exposed if one applies a postcolonial lens to the situation.

Further to this racially-motivated disparity in treatment, the imposition of patriarchal Eurocentric values on black communities and cultures comes under consideration when one views the reaction to the London riots from a postcolonial perspective. David Cameron, in his speech to the House of Lords, asserted that “part of the problem is that fathers have left too many of these [white and black] communities”[23]. This prompts one to segue into the realms of feminism – according to Cameron, in order for a family to be not “disruptive”[24] a man is required. This glorification of the “father figure” in the wake of the riots simply serves to reinforce the patriarchal nature of Western society, a truth which is rarely acknowledged in mainstream discourse.

A parallel which can be drawn in the London context – due in part to David Cameron’s very verbal condemnation of the riots[25]– relates to Mutua’s savage/victim/saviour metaphor as a portrayal of postcolonial attitudes.^[26] Used in a broader context, this paints the “third world” culture as the savage, requiring the “victim” (“third world” people) to be rescued by the white nation or “saviour”. Applying this model to the London riots entails substituting rioters, the “good citizen” and the government and court system respectively, aptly demonstrating the potential for a postcolonial perspective on the event. This metaphor may also be used in other contexts, for example poverty: highlighting the First/Third world divide, with those who have “saving” the “have nots”.

 

The disparity between rich and poor is of relevance in the discussion of alternative truths (though considerably more to London than to Ferguson). Hence, the second perspective taken on the 2011 riots is Marxism. Developed at the turn of the century, Marxism views conflict as being due to class relations between the proletariat (working-class) and the bourgeoisie (middle-class; comprising those of the “ruling” class, such as politicians, judges or academics). In the London context, the Marxist perspective reveals the alternative truth that the riots are not, as David Cameron said, “about crime” and a “culture that glorifies violence”[27] but rather that in his role as a member of the bourgeoisie he is ignoring the legitimate concerns of the oppressed and instead seeking legal retribution. This concurs with Engels’ theory that law is “sacred to the bourgeois for it is… enacted… for his benefit;… a rod… prepared for [the working-man]”.[28]

Firstly, to a large extent, rioters consisted of disenfranchised, disillusioned poorer people (there were but a few exceptions). According to the Financial Times, the persistent undercurrent of racism associated with the 1980s Blackwater riots was less influential than economic hardship in causing the 2011 riots.[29] Rather, the capitalist society in which we live provided the catalyst: “social identity comes from consumption” nowadays, and those poorer people who are unable to consume “find themselves barred in times of economic hardship, except by theft”.[30] On an intersectional note, Williams has noted that “blacks went from being owned by others to having everything around them owned by others”.[31] This supports Bloom’s point above that in order to have any integral value in modern society, one must contribute to the capitalist way of life.

Secondly, the state’s “spectacular show of criminal justice might”[32] in the wake of the London riots can be viewed from a Marxist perspective – specifically, the ruling class feared, and hence quashed, the latent power of the proletariat. This “fear and… sense of social danger incited by poverty and the poor”[33] led to government encouragement of excessively harsh sentences, evictions from council property of those merely connected to the lootings (even if they didn’t actively participate) and “snitching” campaigns.[34] The lack of proportionality of sentencing, coupled with political interference in the judiciary (e.g. recommending the removal of anonymity for young people[35] and raising the severity of sentences[36]) demonstrates the desperation of politicians facing what could have become widespread unrest if left unconstrained. The phrase used by media during the riots was “mob rule”[37], implying a total lack of control – bolstering the beliefs and fears of the elite and culminating in overreaction.

The example of excessive sentencing serves to illustrate another inconsistency. One of the longest sentences was eleven and a half months for a person who set fire to a building “with intent to injure”.[38] The classic case of a looter who stole a bottle of water worth £3.50 and was sentenced to six months in jail is often cited as being wholly disproportionate.[39] Viewed objectively, these sentences are concerning – however, they become even more so when one considers the concurrent £14,000 fraud case concerning ex-Conservative peer Lord Hanningfield.[40] Despite being sentenced to a mere nine months, he served only a quarter of this, leading one to question whether there is one law for the rich and another for the poor. This discrepancy between treatment of white-collar and blue-collar crime is totally unjustified and only explained by elitist bias – the rich use their education and status to exploit the state, while the poor employ opportunism. One is pre-meditated, the other is not.

In addition to political and judicial bias, an ever-present media bias exists condemning the poor. The negative media portrayal of the London riots is illustrated in a newspaper widely viewed as relatively neutral, with the tongue-in-cheek suggestion that rioters were “demanding “justice”” (inverted commas in the original, denoting sarcasm).[41] This sentiment is often reflected in wider society, leading one to question whether the media is simply endorsing the preconceived notions of its readership: whether it is the mouthpiece of the bourgeoisie. It is a fact that “popular and political hostility” towards those who were punished in the wake of the riots (the poor, young, black and single parents) is “deeply embedded in society at large”, thus making the extremely heavy-handed government and council response more palatable.[42] The Marxist lens draws attention to this situation, to the demonization of those who are unable to contribute to society in the manner that capitalism demands.

Finally, taking an intersectional perspective, similarities may be drawn between photos of the London riots and of post-football-match “exuberance” (engaged in for the most part by white men), both depicting scenes of arson and violence. Aside from the race issue (white men face fewer media repercussions for their antisocial activities), the main difference is that the violence engaged in by the London rioters is much more impersonal than that of the football “hooligans”. Reports from the London riots focus to a large extent on scenes of arson and window-smashing, but very little on outright violence towards individuals. Certainly it happened –a group of teenagers mugged another and a pensioner was stabbed by a 16-year-old^[43] – but the media focus was on the looting and vandalism: both an example of the criminalization of black people for much less violent crimes and of the import which society and the government attach to “crimes against capitalism”. These truths can only be revealed when one analyses the situation with specific reference to race or to class.

 

The concept of “alternative truth”, then, is present, dare it be said, universally: there will always be at least one “flip side” (and often considerably more) to every event. This much is evident when one considers the biases of certain media (to take a classic example, Fox News) who present these preconceptions and biases as fact. This is their truth. Even in law nothing is absolute, for some will inevitably disagree with laws or court rulings for personal reasons. The “alternative” is not necessarily the “right” way of viewing a situation, it simply draws attention to the fact that there is another way, or other ways, of viewing it – nothing is wholly definitive. Therefore, if one attempts to view the London riots and Ferguson from a new perspective, inevitably alternative truths will appear. From the postcolonial perspective, these events are a relic of the colonial past which still resonates in society today. A Marxist viewpoint depicts the rioters as social pariahs due to their inability to contribute to capitalist society. Both portray rioters as more nuanced than simply “thugs”. The application of another branch of legal theory – such as feminism or a Foucauldian lens – would undoubtedly uncover further “alternative truths”.

 

BIBLIOGRAPHY

Books
– Bloom C, Riot City: Protest and Rebellion in the Capital, (Palgrave Macmillan 2012)
– Briggs D, “Frustrations, urban relations and temptations: contextualising the social disorder in London” in The English riots of 2011: a summer of discontent, ed. Briggs D (Waterside Press 2012)
– Doty R, Imperial Encounters (University of Minnesota Press 1996)
– Engels F, The Condition of the Working-Class in England in 1844, (Oxford:Basil Blackwell 1958)
– Hunter R et al (eds), Feminist Judgments: From Theory to Practice (Hart 2009)
– Williams P, The Alchemy of Race and Rights: Diary of a Law Professor (Harvard University Press 1991)

Articles
– Lamble S, “The Quiet Dangers of Civilized Rage: Surveying the punitive aftermath of England’s August 2011 riots” (2013) 112(3) South Atlantic Quarterly 577
– Mutua M “Savages, Victims and Saviours: The Metaphor of Human Rights” (2001) 42 Harvard Int’l LJ 201

Websites
– – – “@ShaunKing: Eyewitness Accounts of Michael Brown Shooting” (Storify, 2014) <https://storify.com/ShotFromGuns/shaun-king-eyewitness-accounts-of-michael-brown-sh> (accessed 22 Dec 2015)

– – – “A major drugs player of respected father of four?” (Evening Standard, 8 Aug 2011) <http://www.standard.co.uk/news/a-major-drugs-player-or-respected-father-of-four-6430630.html> (accessed 23 Dec 2015)

– – – “Fear and a sense of loss amid high street’s smoking ruins” (Evening Standard, 8 Aug 2011) <http://www.standard.co.uk/news/fear-and-a-sense-of-loss-amid-high-streets-smoking-ruins-6430641.html> (accessed 23 Dec 2015)

– – – “Tamir Rice” (The Guardian, 2014-2015) <http://www.theguardian.com/us-news/tamir-rice> (accessed 22 Dec 2015)

– Ablow K, “Charleston: Why didn’t anyone help Dylann Roof?” (Fox News, 22 Jun 2015) <http://www.foxnews.com/opinion/2015/06/22/charleston-why-didnt-anyone-help-dylann-roof.html> (accessed 27 Dec 2015)

– Bloom C, “Economics Not Racism Riles the Nando’s generation” (Financial Times, 8 Aug 2011) <http://www.ft.com/cms/s/0/c6feac6c-c1b9-11e0-acb3-00144feabdc0.html#axzz3vAdrkZmT> (accessed 23 Dec 2015)

– Follman M, “Michael Brown’s Mom Laid Flowers Where He Was Shot—and Police Crushed Them” (Mother Jones, 27 Aug 2014) <http://www.motherjones.com/politics/2014/08/ferguson-st-louis-police-tactics-dogs-michael-brown> (accessed 22 Dec 2015)

– Gabbatt A and Quinn B, “London disturbances – Sunday 7 August 2011” (The Guardian, 7 Aug 2011) <http://www.theguardian.com/uk/blog/2011/aug/07/tottenham-riots-police-duggan-live#block-44> (accessed 22Dec 2015)

– Hughes M, Beckford M and Graham D, “Tottenham riot: bullet lodged in officer’s radio at time of Mark Duggan death ‘was police issue’” (The Telegraph, 8 Aug 2011) <http://www.telegraph.co.uk/news/uknews/crime/8687804/Tottenham-riot-bullet-lodged-in-officers-radio-at-time-of-Mark-Duggan-death-was-police-issue.html> (accessed 22 Dec 2015)

– Jackson P, “London riots: Tensions behind unrest revealed” (BBC News, 7 Aug 2011) <http://www.bbc.co.uk/news/uk-14436529> (accessed 22 Dec 2015)

– King S, “What Mike Brown did and did not do inside of the Ferguson convenience store” (Daily Kos, 28 Oct 2014) < http://www.dailykos.com/story/2014/10/28/1339820/-What-Mike-Brown-did-and-did-not-do-inside-of-the-Ferguson-convenience-store> (accessed 27 Dec 2015)

– Lee T, “Eyewitness to Michael Brown shooting recounts his friend’s death” (MSNBC, 12 Aug 2014) <http://www.msnbc.com/msnbc/eyewitness-michael-brown-fatal-shooting-missouri> (accessed 22 Dec 2015)

– Lussenhop J, “Family of Michael Brown, Teenager Shot to Death By Ferguson Police, Talks About His Life” (Riverfront Times, 10 Aug 2014) <http://www.riverfronttimes.com/newsblog/2014/08/10/family-of-michael-brown-teenager-shot-to-death-by-ferguson-police-talks-about-his-life> (accessed 22 Dec 2015)

– Pleasant L, “Meet the Woman Behind #BlackLivesMatter—The Hashtag That Became a Civil Rights Movement” (Yes! Magazine, 1 May 2015) <http://www.yesmagazine.org/issues/make-it-right/meet-the-woman-behind-black-lives-matter-the-hashtag-that-became-a-civil-rights-movement> (accessed 7 Jan 2016)

– Swaine J and Carroll R, “Ferguson shooting: police under pressure after linking Michael Brown to robbery” (The Guardian, 16 Aug 2014) <http://www.theguardian.com/world/2014/aug/15/ferguson-police-michael-brown-robbery-suspect> (accessed 22 Dec 2015)

– Young Lee P, “Robert Dear, “gentle loner”: The New York Times reveals a load of biases in early round of Colorado Springs Planned Parenthood coverage” (Salon, 30 Nov 2015) <http://www.salon.com/2015/11/30/robert_dear_gentle_loner_the_new_york_times_reveals_a_load_of_biases_in_early_round_of_colorado_springs_planned_parenthood_coverage/> (accessed 22 Dec 2015)

Speeches
– Cameron D, “London Riots: Prime Minister’s statement in full” (The Guardian, 9 Aug 2011) <http://www.telegraph.co.uk/news/uknews/crime/8691034/London-riots-Prime-Ministers-s statement-in-full.html> (accessed 22 Dec 2015)

 

Government Reports

– House of Commons Official Report, Vol. 531, No. 92 (11 Aug 2011)

 

---