The crucial text for understanding the risks of what has so far been described as a ‘tactical’ legalism becoming a strategy or even a principle for critical movements is Rob Knox’s essay ‘Strategy and Tactics’. A crucial element of Knox’s argument is that there are a set of positions in which interventions which should be understood as “tactical”, a “short term, conjunctural intervention that aims to win the argument on its own terms, without considering how to change the terms of the argument”. Strategic legalism rests on a set of mistaken arguments and intellectual slippages, and Knox does crucial work in dismantling these. However, running alongside this is an equally important argument that the primacy of practice, coupled with the fact that any practice entails a certain theorisation, means that the choice of the law as a terrain of struggle tends to have the effect of generalising legal tactics and legalistic conceptions behind the backs of those involved, and despite any subjective critiques they may have of the law.

In understanding the limits of “strategic legalism” in the case of the proscription of Palestine Action, it is necessary to draw out an implicit argument in Knox’s text, which is that one of its major harmful effects is pedagogical. Knox, drawing on Gramsci, points out that practice and theory are inseparable: every practice, whether it intends to or not, generates a theory; and the theory is generates is more consequential that the stated theories and principles of the practitioners. For Gramsci, what this also means, is that any politics is pedagogical, in that it teaches us what power we have or don’t. What, then, does legalism teach? Fundamentally, it teaches disempowerment and reliance on a procedure that is controlled by specialists, and which is out of our hands.

Even more importantly, legalism interpellates us as atomised individuals. This is grasped, crucially, by Walid Daqqah, in his critique of “the human rights discourse” and how it treats abuses of human rights as essentially personalised exceptions to the rule (committed by an individual to be tried in court as an individual, against an individual who appears in court as an individual), to be remedied according to the law.³ The point here is not only that, paralleling Knox’s argument, the human rights discourse can never challenge what is organic (or structural); nor can it challenge the procedures by which the law functions. The point is also that it separates and divides: the individual deprived of their rights is, by definition, not part of any collectivity. Here, the demonstrations outside of court in support of actionists on trial, or in support of Ammori in her case, demonstrate that the law cannot be isolated from political pressure. They also demonstrate that, however much the practices of the court aim to teach the opposite, our comrades are not alone. The demonstration in support of Ammori is, therefore, a crucial part of the refusal to submit fully to legalism, even when bringing a case in the court.

To draw on another theorist troubled by the risks of too great an absorption in the conjunctural, we might recall Raymond Williams’s caution to Stuart Hall, whose violent attention to the discipline of the conjuncture risked “making long-term adjustments to short term situations”. Tactics become strategy in the adjustment of our longer-term, radical politics and understanding to a set of practices and their associated theories determined only, or mostly, by the discipline of the conjuncture. The urgent task of using whatever methods are at hand to stop the proscription of Palestine Action, as well as a fear of the repression of the wider movement if it breaks the law, risks a longer-term adjustment towards legalism. In making these adjustments, the apparently critical scholar retains a longer-term, radical horizon, but the urgency of any conjuncture means that its effects are constantly deferred: it can never become strategically effective, or part of the formulation of judgements about appropriate tactics. One ends up acting, in every concrete situation, as if such a horizon does not exist. As a result, Knox observes “rather than a ‘strategic’ adoption of liberal legalism, the vision so outlined is in fact a wholesale capitulation to it.”

The response of the Palestine Solidarity Campaign to the prospect of Palestine Action being proscribed represents exactly such a capitulation to liberal legalism. The PSC have written to branches asking them and their members to use “the power we have to campaign for the proscription of Palestine Action not to happen.” This power mostly seems to consist in signing an online petition. However, should efforts to stop proscription fail — as indeed they now have — the PSC stated, “we will not allow any branch to jeopardise the organisation and the movement by taking such actions [i.e. actions that might fall foul of the law] in the name of PSC.” We might contrast the PSC’s understanding of power — circumscribed by what is permitted by and through the ‘proper channels’ — with that of Palestine Action. The animating strategic horizon of the PSC is maintaining the organisation: in a situation where it may face catastrophic repression as a result of the proscription of Palestine Action this means capitulation to the law.

Eduard Bernstein once wrote that “the Final goal, no matter what it is, is nothing; the movement is everything.” The PSC response to the mooting of proscription has been similar: everything is, must be, sacrificed for the sake of the continuation of the organisation, which is identified with the movement. This becomes not only a strategic but a moral imperative. It is an effect of fear; it is also an effect of acting prudently within the law. And it is not irrational: an organisation with resources, members, a national presence and an ability to bring people out on marches is no small thing, and there is a responsibility not to torch that recklessly. However, there comes a crisis point where one is faced with a choice between taking a risk (it may well be that it would be impossible to proscribe an organisation that is able to get hundreds of thousands of people out to march with any degree of regularity) and capitulation. It is very possible that this point has now been reached.

At Wednesday’s demonstration, there were frequent appeals to the need for unity within the movement. Unity is always desirable in principle, but the question should be: unity on what terms? We can see from the PSC statement —but also the organisation and language of demonstrations — that legalism as a strategy chosen by the leaders of an organisation also requires a disciplining of members to ensure that they stay within the law. When the law appears to prohibit solidarity with Palestine Action, this is a problem.

Legalism teaches disempowerment and a lack of participation. It teaches us, as David Renton has argued, to trust in specialists⁴ or those able to negotiate, again as named individuals, on our behalf (and the structure of the court individualises the lawyer, separating them from any movement, as much as it does the defendant or claimant). This is notable with the PSC when it comes to negotiating demonstration routes with the police. Legalism, as Knox argues, also opposes the strategic, incarnated in specialist practitioners, to criticism. In Knox’s argument, the criticism that is disparaged is any criticism which makes radical theoretical claims against the prudent, practical activity of the legal specialists, thus potentially undermining their work. In the PSC’s email, and in a version of appeals to unity, we can see the urgency of the conjuncture, including the risk of the PSC being proscribed, put to use by the leadership of an organisation in order to discipline its grassroots. It is necessary to recognise that some criticism is irresponsible, that sometimes one should bite one’s tongue: we delayed publishing this piece until after the judgment in Ammori’s case, because we did not want to seem to be undermining a set of tactics around using the law which were sensible up to the point where the last legal challenge before proscription failed. However, the strategist’s suppression of criticism⁵ in the name of prudence is also a capitulation to the elements in the situation that are immediately available, and therefore a total capitulation once those elements are found to be ineffective.

Legalism is also operative in the pernicious argument, made most notably by John McDonnell, but implicit in a range of other common sense challenges, that proscription of Palestine Action represents a misuse of Tony Blair’s Terrorism Act. This is grounded in the ludicrous way the government have approached this, and the grouping of Palestine Action with “Maniacs Murder Cult” to push MPs to vote for proscription is both breathtaking and grimly funny in its cynicism. The terror laws are, and have always been, as Franck Magennis, criticising the notion the IOF should be proscribed, has noted, “racist and colonial”; they should be “abolished, not redirected”.

The arguments of the last fortnight suggest a set of further problems that could become an issue now that legal avenues against proscription have been exhausted. Firstly, centring journalists and wider questions over freedom of speech misses the point that the real targets of proscription are those taking direct action against genocide, not those producing words in articles or on social media. A defence of free speech and the possibilities of journalism is an easier argument to make on the given terrain than a defence of smashing weapons factories, which made it a sensible approach in the last two weeks — but it should not guide us now. We don’t know how proscription will be enforced. It may be that journalists and others making arguments in support of Palestine Action will be targeted, but we are not the real heroes of this situation.

The focus on opinions and arguments also obscures the motivations for proscription, especially when combined with another argument, one determined by legalism, which insists that what Palestine Action have been doing is merely protest. The three major motivations behind proscription are: 1) that Palestine Action have been effective — not yet at smashing British complicity in genocide, but certainly in undermining it and imposing significant costs upon it; 2) that previous escalations of repression have failed to intimidate actionists,;and 3) that juries are often reluctant to convict actionists. This has been emphasised by Ammori, who points out the escalation of repression prior to proscription, particularly in the use of terror laws to deny of bail to actionists prior to trial, and roots it in precisely that reluctance to convict. Thus, ways have been found to punish that do not rely on the compliance of juries. It would be an exaggeration, showing far too much indifference to the suffering the state aims to inflict on actionists, to say that the proscription of Palestine Action is a victory — but it is an indication of Palestine Action’s success in disrupting genocide, and of shifts in public opinion that make juries unreliable for a state that wants convictions. Much easier to seek to gain convictions on the basis of membership, where a legal defence will be far trickier, and where juries will no doubt be guided to exclude moral considerations and answer only the strict question of whether or not a defendant can, indeed, be reasonably considered to be a member of a proscribed organisation.

Knox identifies a further problem with strategic legalism: that winning legally may have as many negative effects as losing, because a legal victory binds movements more strongly to the law, and so to acceptance of the structural. To argue that losing the fight against proscription — both the legal case and the Parliamentary votes — is, in fact, a victory, would be as much of a callous exaggeration as would describing proscription as such. It would have been good if the very reasonable arguments presented either in Parliament or in the High Court had prevented proscription. However, something crucial can be learnt from the failure of a legal strategy, and part of the justification of pursuing it can be found in that learning.

For the law to be effective in securing the reproduction of capitalism, it cannot be entirely the instrument of capital and the state; but, equally, the law is not neutral. The proscription of Palestine Action shows a state that is flailing, a state that is reducing the law to a naked instrument of genocide. As Ammori says, “they are completely delegitimising their own laws.” Whilst it is wrong to argue that proscription is a misuse of terrorism laws, the sheer cynicism and dishonesty of what has happened teaches us a great deal. Do 385 MPs really, truly believe that large numbers of their constituents who are sympathetic to Palestine Action are effectively terrorists? The state is increasingly pushed into rule by repression rather than by actively securing consent. It is in crisis, and this crisis has been initiated by both Palestine Action and the broader movement, in a context where any person with a sliver of morality has been pushed by ‘Israel’s’ genocide of Palestinians towards opinions that are in radical contradiction with what the state deems legitimate.

As Sally Rooney suggests, the law is implicated in genocide. Legalism has been tested to its limits. After midnight there will be no way to effectively and practically oppose genocide in Britain without breaking the law. We must trust Palestine Action, both as those most affected by proscription and as those with the most tactical and strategic intelligence, to formulate new plans. Repression has not stopped Palestine Action yet, but those of us who are not brave enough to become actionists have a responsibility to support those who will find themselves on the even sharper end of an intensified repression.