The subject of the Declaration of Independence recently came up at a high-profile legal debate. American and British lawyers were pitted against each-other on the subject of whether there’s really any legal basis for it. At the end, the American audience voted in favour of Thomas Jefferson and friends, but the high-profile event certainly raises a lot of questions.

The first, obviously, is whether any revolution can be legal. The answer here is both yes and no. On one hand, a revolution is a direct conflict with the state, which determines what is legal and what isn’t. On the other, it’s not really a revolution until the state is defeated, at which point it doesn’t make the laws. Either way, it only shows how ludicrous a legal discussion of a revolution is from the start.

The second question, of course, is why British law would apply. After all, the American revolution didn’t take place in England. Nothing like English “common law” ever applied here before the establishment of these colonies. The Thirteen Colonies may have been part of the British Empire, but how, exactly, was that legal? Conquest and colonization tend to fly in the face of national sovereignty, as well as all manner of modern legal issues like “human rights”, “war crimes” and genocide of which the British Empire was clearly guilty. Perhaps a better question would involve the legality of the American revolution (or British colonization) under indigenous laws.

The third legal question involves the considerable popular support for the American revolution. As the British lawyers argued, Texas or other southern states wouldn’t be allowed to leave the Union, even if it were the clear will of their majority. This very issue was the basis for the Civil War, in which Lincoln used the military to prevent the south from leaving the Union. Today this is mostly portrayed as a war which revolved around slavery (more than a little inaccurate), but what of the revolution itself? The British Empire, for all its flaws, began outlawing slavery more than fifty years before Lincoln. Setting aside the Civil War, this issue is far from clear-cut, legally or ethically. What about Chechnya? Kosovo? Tibet? How can a state justify maintaining control of a geographically and culturally distinct nation which clearly does not want to be a part of it?

The circular logic of the state is designed to grant itself legitimacy. In reality, of course, there’s one very simple reason why states have power: violence. A state’s borders cover the area it’s able to maintain military supremacy (known domestically as a “monopoly on violence”). Modern nation states nearly all came into being through mostly military means, especially in the former colonies (Americas, Africa, Australia etc). If another country gains military supremacy over part of a state’s territory, that territory is lost to that state, and gained by whoever conquered it. And of course if a state loses military control locally (either because violence becomes useless, as it did against Gandhi, or hopeless, as against Washington), it’s called a “revolution.” Like the ‘Big Bang’, in which physicists envision a “singularity” at the beginning of the universe, where none of our normal physical laws apply, states are born in explosions which just can’t be described by their own civil statutes.

Why bother critiquing an obviously ludicrous debate? Because it illustrates this principle perfectly. Far too many “resistance movements” rely very heavily on ideas about the supremacy of law in their theories and tactics. The best example would be the “Freemen on the Land”, seeking to exempt themselves from most laws and taxes through archaic legal loopholes. Unfortunately, the state is not a bunch of dusty old lawbooks – it’s run by people and enforced with guns. You do not have to do anything “illegal” to end up on the wrong side of “the law”. No matter how “right” you might be – legally, ethically or scientifically, they have no obligation to listen if they feel you’re a threat to them. Decades of land claims battles have demonstrated this pretty clearly – if such laws were taken seriously Canada would have to give up most of British Columbia. Even in struggles that don’t end in revolutions or total liberation – unions, women’s suffrage, civil rights, First Nations, even the province of Winnipeg – few serious gains would have been possible lots of illegal, disruptive and often violent behaviour which threatened the state to the point of making enormous concessions. In too many of these cases, people died for their beliefs, and our high standards of living today have far more to do with their willing sacrifice than the benevolence of our rulers. Power concedes nothing without a demand, and if we’re interested in real, substantial changes, we need to remember that.

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