How the legal system has been captured
By Melanie Strickland
It was an honour to spend time at the Occupy Democracy camp this week. The aim of the camp is to link apparently unrelated struggles and show that at source, what is preventing us from achieving our goals for a just and genuine sustainable society is a corrupt political system, where a small number of economic actors and privileged elites who believe in limitless economic production, make decisions that profoundly affect us all.
On Thursday I did a talk with my friend Nina Owen about how the legal system has been captured. There is very little focus on the role of law and democracy, and yet law is what legitimises the system.
George Monbiot in his book ‘Captive State’ (2000), said “Corporations, the contraptions we invented to serve us, are overthrowing us. They are seizing powers previous invested in government and using them to distort public life to suit their own ends”.
Corporate interests are so embedded into the structure of law that private property interests routinely override fundamental rights, like the right to a healthy environment. Corporations have extensive rights in law and use these rights to assault communities and nature. We see our government sell out to big business on virtually every aspect of economic policy, energy policy, food, water, land, health, education, environment etc. The exploitation of the Earth is at the stage where we are in the midst of an ecological crisis, and yet the government and companies are still pressing forward with plans to find new ways of exploiting the land, such as fracking. We live in a corporate State.
So how did we get here? Did you know that:
- Directors are legally obliged to maximise profits for their shareholders – this is in s172 of the Companies Act 2006 but previous Companies Acts also obliged directors to maximise profits, going back a long way. Imagine how you would behave if the primary purpose of your existence was to make as much money as possible. Most probably, your actions would appear psychopathic to people around you.
- The history of the corporate form goes back over 400 years and in that time corporations have acquired more and more powers. Companies are persons in law – for most business purposes they have the same status as a human being, and yet they have huge advantages over real people – they don’t die for example, they have vastly more resources than an actual person and they have a separate legal personality from the people that work for the company. A real person can be found guilty of murder, whereas a corporation can by its actions cause the deaths of many people and won’t be found guilty of murder. (There is a corporate manslaughter act in this country but it’s weak and it’s almost impossible to find companies guilty of corporate manslaughter)
- Nature is treated as ‘property’ under the law. Whilst a corporation (itself a legal fiction) has extensive rights (including protection under human rights law – most notably the right to property), living beings have no rights whatsoever. The law does not recognise the inherent value of nature. This prevents people from protecting the environment effectively.
- Corporations have ‘limited liability’ and big companies nearly always have complex legal structures. In this way, they can move around money, assets and liabilities to other companies in the group (who may be based abroad) to minimise/ dodge taxes, obscure otherwise questionable transactions and avoid accountability. This is how companies like Starbucks et al can get away with claiming they have made a loss and therefore avoid paying tax. The people running the company hide behind the corporate form and are shielded from accountability in nearly all cases. They are not personally liable for the acts of the company. There is no accountability.
- Corporations have immense power not only to influence, but in some cases actually draft legislation. The government seconds employees from big business into key departments. They are writing legislation supposedly intended to regulate them.
- The law doesn’t recognise our right to self government, which is the essence of democracy.
We do not live in a democracy, if that term is to have any real meaning. Democracy is the right to decide, collectively, what happens in our communities, what happens in our lives. Democratic participation is not about spending vast amounts of energy completing consultations after which time the government will go ahead with whatever it intended to do anyway, nor is it about merely voting once every 5 years.
The structure of the law itself is fundamentally unjust and undemocratic. And yet law defines the box of our activism. The law makes sustainability unlawful, since it legitimises the exploitation of our planet and authorises exploitation of our communities, and permits corporations to pollute our bodies in a multitude of ways. Under the law, we cannot say no to these abuses. We cannot say no to fracking, or no to GM food, no to the Transatlantic Trade and Investment Partnership, no to NHS privatisation, or no to other abuses. This is wrong. The State has no legitimate authority to permit others to carry out such abuses, nor itself to trade away our fundamental rights as citizens.
We need to fundamentally change the structure of law itself, starting at the grassroots. We need to articulate the kind of world we want, identify what’s stopping us from achieving our goals, and start organising for a new right based movement. We have the right to defend our health, safety and welfare, and the wellbeing of those ecosystems on which life depends. We need to start acting as if we have the right. We need to learn from previous social movements, like the abolitionists, suffragettes and the civil rights movement. All political power is inherent in the people – it’s time to act.