This is another of my vague musings on legal metaphors, but it is different in two ways. First, it is more about the metaphors of academics, activists, and others who criticise the law than about the metaphors of judges and lawyers. Second, it is not a metaphor in actual use, so much as my metaphorical representation of a common pattern of assumptions and their reversal.
So, I think there’s a common perception that state power is a bit like a Swiss army knife. It’s a complex tool that can be used in a variety way to achieve a variety of ends. Usually this assumption is implicit, but occasionally it bubbles to the surface. For instance, Nedelsky argues that the law structures property relations, so it’s quite capable of being used to structure other kinds of relations too. I think there’s a second implication there: the idea that state power, like the screwdriver on your Swiss army knife, can undo the work it does. The law can screw something together, and it can unscrew it if it doesn’t work.
I doubt state power is like a Swiss army knife. I think it’s more like a gun. It does one thing extremely well, and that one thing is exert force.
You can use a gun to threaten other people to do a variety of things for you, but it doesn’t mean that your gun is a Swiss army knife. It just means that you can get the people with Swiss army knives to do what you want.
Now, patterns of threats can be ornate. For instance, you could threaten some people who are hoarding goods to share what they have with some other people. That doesn’t mean your gun can both threaten bad people and reward good people. It just means that you’re threatening some people to reward some other ones. Maybe that’s justified, maybe it’s not; but, either way, all your gun does is threaten and shoot. Exactly same holds for state power. The only difference is that, here, the patterns of behaviour flowing from the threats are so ornate it becomes easy to forget the initial threat exists.
If state power is more like a gun than a Swiss army knife this entails a couple of things. First, unlike the screwdriver, it’s not reversible. Just because you can shoot someone doesn’t mean that you can unshoot them, and just because you can threaten someone doesn’t mean that you can unthreaten them. Sure, you can stop threatening them, but that’s not the same thing as never having threatened them; and, let’s be honest, unless you get rid of the gun you can’t even do that. Putting the gun down doesn’t mean that you’re not threatening someone if they know you can pick it up whenever you like. Similarly, state power doesn’t stop being coercive just because it’s not coercing someone right now.
The second of entailment of state power being a gun and not a Swiss army knife is that if a problem is due to the very existence of coercion, then the state cannot help. It can stop some people coercing some other people, but only by, directly or indirectly, coercing a third group of people to intervene. And because coerced people, above all, want to please the coercer, this never works. The attention of these people, call them ‘coerced liberators’, isn’t on genuinely freeing those other people from coercion, it’s on making sure that whoever is coercing them is happy.
We see this in the move to ‘free markets’. Whether or not it is genuinely desirable, one thing we never get is genuinely free markets. Instead, we get powerful multinational cartels doing very well, targets, procedures, and ultimately more state involvement. The coercive power of the state is concealed, but not lost. Similarly, in mental health law, we get ever more ornate procedural checks, but basically unchanged conditions of detention. The language of ’empowerment’ gets ever more strident, yet lived freedom disappears. The gun of state power cannot undo itself. All it can do is threaten and shoot.