Corruption is worse than prostitution; the latter might endanger the morals of an individual. The former invariably endangers the entire country. Karl Krauss
Leonardo Sciascia or Shaza was an Italian or rather Sicilian political journalist, an elected radical member of the Italian parliament and the most prominent anti-mafia and indeed anti-corruption critic of his time. He was also a voice of moderation in a sea of extremism in the 1970s and 1980s.
All this features in his famous detective novels which are really anti-detective novels or works of political observation. Along with his masterful analysis of the assassination by the Red Brigade of the Christian Democrat conciliator and former Prime Minister Aldo Moron – a book not unlike the equally masterful News of a Kidnapping (1997) by Garcia Marquez concerning Colombia in the era of Escobar – his oeuvre offers a sustained critique of Italian and Sicilian political and cultural life.
This reflects the complex interstices of corruption and collusion between extreme-right-wing Catholicism, organised crime and the shadowy self-protection syndicates of big business, politics, as well as a malevolent state bureaucracy deeply embedded in all of the aforementioned. His books also demonstrate the lethal effects of innuendo, smoke, mirrors and the nefarious rumour mill.
You could cut and paste these, change the names, and apply them to Ireland, the U.K. or U.S. or any country where extreme neo-liberalism or Christian evangelism holds sway.
Sciascia was a specialist on the mafia, and he demonstrated how they kill and destroy. First, they isolate and disempower and then they denigrate. Often, demonising or scapegoating their prey. And those who seek to investigate them – such as the anti-corruption Sicilian Judge Giovanni Falcone – who act on principle are destroyed. This is exquisitely detailed in Equal Danger (1971), his best book.
Illustrious Corpses
In Sciascia’s fiction, it is the detective, not the murderer, who is isolated and suspected, suffering the same fate as whistleblowers around the world today. It is a post-truth doppelganger of good and evil. Thus, those who oppose corruption in the words of the film adaptation of his book become Illustrious Corpses [1976].
In fact, his current heir, as the anti-corruption conscience of Italian letters, Robert Saviona was placed under police protection after his exposure of the Neapolitan mafia in Gomorrah (2016), and his fabulous text Zero Zero Zero (2013), which was made into a T.V. series that highlights how the practices and modes of organisation of the drugs trade are mirrored in corporate organisation, and vice versa. The same brutality. The same hierarchical structure. The same partnerships.
Mr Saviona was recently prosecuted by Meloni for calling her a bastard over her immigration views. A cautionary tale perhaps for the revival of the hate crimes bill in Ireland, and our anti-immigrant stance? Who would dare call Jim O’Callaghan a bastard? I doubt he would sanction a prosecution, but who knows as the centre-right moves even further to the right, just as Starmer has the taken the so-called Labour Party.
In Ireland, anti-mafia or anti-corruption activists face an uphill not impossible struggle in our present universe. Witness the case of Jonathan Sugerman.
In a world of statist and corporate authoritarianism, what Eisenhower historically called (in interview with the late great Walter Cronkite at the end of his Presidency) the military industrial complex poses an existential threat to humanity. Meanwhile, on X, Elon Musk perversely uses freedom of speech to undermine the civic space.
Indeed, Habermas‘ ideal of communicative action is poisoned by misinformation undermining the democratic rights and entitlements of all by pandering to far right-wing extremists and racists and WOK simpletons.
The film Illustrious Corpses. (1976) begins with the murder of Investigating Judge Vargas in Palermo, amidst a climate of demonstrations, strikes and political tension between the Left under a Christian Democratic government. The detective Rogas is assigned to investigate the case and no sooner has he started then two more judges are murdered.
He is encouraged ‘not to forage after gossip,’ but to trail the ‘crazy lunatic who for no reason whatsoever is going about murdering judges.’ He focuses mistakenly on a suspect leftist wrongfully convicted by the judges. Whereupon he is advised by the President of the Supreme Court, played in sinister fashion by Max van Sydow, that the court is incapable of error.
At a party he is advised there will be a coalition of the Communists and the Christian Democrats, and that the murder of the judges as well as Rogas’s investigations were causing tensions, and justify the prosecution of the far-left groups. Rogas also discovers that his suspect, Cres, is present at the party. Rogas meets with the Secretary-General of the Communist Party in a museum. Both are killed. And the murder is blamed on the innocent detective.
The film ends with the dictum: ‘The people must never know the truth?’
Giovanni Falcone and Paolo Borsellino in March 1992. Two assassinated judges.
Equal Danger
It is this kind of disrespect for the truth that has led us collectively, in my view, into the present quagmire. The gatekeepers of the system must be above reproach, and the exposure of corruption may lead – as it did to the Italian judge Falcone – assassination by the mafia, although in more ‘civilised’ countries this may consist of a fabricated charge, or some form of propaganda-by-omission where a critic of government policy is no-platformed in the media.
The salient message of the book Equal Danger is that the system breaks down when one of the canonical features of the Rule of Law is eradicated. This includes when the gatekeepers are no longer independent, as Lord Bingham suggested in his canonical text on The Rule of Law.
At the core of the ideal of the Rule of Law, the legendary Law Lord and jurist Bingham, suggests is the idea ‘that ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred, and without exceeding the limits of such powers.’ Sadly those conditions have been undermined in many jurisdictions.
Ironically in the end, Sciascia attacked crusading judges for putting civil rights at stake in an article, while on his deathbed, that irredeemably punctured his reputation: attacking Falcone as a celebrity judge which was ludicrous and frankly in bad taste.
First Edition.
Anomie
Another Sciascia theme, particularly evident in his most famous text, The Day of the Owl (1961)’ is the Sicilian trait of anomie or indifference, implying that pursuit of principle, justice and the truth are all a waste of time.
In controlled societies, such as Italy or Ireland, Sciascia’s books demonstrate the lethal effects of innuendo, smoke, mirrors and the nefarious rumour mill, along with the collective trivialisation that amounts to a resigned admission that the victims of crime had it coming to them in some obscure way. This betrays a latent desire for yourself not to go the same way. What C.S. Jung referred to as the shadow.
The Day of the Owl also brilliantly shows that to succeed in a mafiosi culture you must pay the protection money or pizzo; just as in Mario Puzo’ s vastly underrated The Godfather (1969) you must kiss Don Corleone’s ass. An understanding of patronage and feudalism remains crucial in our time.
That book also canvasses another theme of distraction central to our age: the playbook of the false sex allegation. The virtuous are undermined by the crime passional, the allegation of sexual impropriety, including child abuse. Those who carry out the task appear sanctimonious and mask political persecution, often framing their victims. A favourable appointment follows. Robespierre would approve.
In the context of false allegations Roy Cohn, Trumps lawyer, was barely twenty-four years old when he played perhaps the central role in the Rosenberg’s’ espionage trial, relentlessly and vindictively lobbying the judge for their execution. Both were found guilty of passing information to the Soviet Union and electrocuted at Singh Sing in 1953.
It was quite clear that this was utterly malicious in that he knew Ethel Rosenberg was innocent but used forged documents, perjured evidence and the art of persuasion – in that he believed her indictment would force Julian Rosenberg to reveal his espionage sources.
Well whistleblowers and anyone accused of sedition, espionage or treason also come from the fascist playbook. That is now Trumps agenda for even academics and students.
And people forget. Memories fade. The shadow play moves on. Thus, Sciascia a proper Sicilian communist has much to say about the rule of law and not just in Italy. His work is crucially relevant to our time.
Roberto Calvi
Roberto Calvi
Close to my Chambers is Blackfriars Bridge where Roberto Calvi the former head of the Vatican bank was found dangling. Sciascia’s acidic response was: ‘Why was a good mystery preferred to finding out the truth?’
But the truth depends on memory, pattern recognition and a sense of history, and as Milan Kundera – as good an exposer of corruption as Sciascia in his way – remarked, the first way of liquidating a people is to destroy memory, or the lessons of history.
Thus, in contemporary Italy the mayor of Montefalco banned cricket in a village played by immigrants near Joycean Trieste, forgetting that AC Milan was founded as a cricket club. And lest we forget that in the jaw-droppingly beautiful village of Sant Angelo in Ischia Italy gave refuge to one of the great artists and enemy of Pinochet, the Chilean Pablo Neruda, though the film Il Postino (1994) fictionally suggests it was nearby Procida!
Thus, as I enthused about the country on a train from Perugia, after viewing the Fra Angelica painting Resurrection, an Italian lawyer said yes but what about the government? He reminded me not just about Berlusconi, but Andreotti so closely connected with the corruption I have referred to – Il Divo (2008) to reference Sorentino’s film about him. Surviving into his nineties, he was the reptile like crystallisation of the world’s corruption. A man who sent people to their death via his associations with the mafia, but a pious Catholic. Sound familiar?
Now let us pave a path for a new resurrection to create a better world based on the Rule of Law and moderation, whether secular or Christian. Let us wonder if the good man Jesus would stand for what has been done and is being done in his name.
The message of our sceptical and brilliant communist Sicilian friend is most relevant to this age. Keep to the truth and let the heaven’s fall.
Title Image: Paolo Borsellino with Leonardo Sciascia (Creative Commons).
In a court case in Kent recently I detoured to the small village of Down near Orpington where I had the privilege of visiting the Home of Charles Darwin. This is the residence where he wrote both The Voyage of The Beagle (1839) and The Origin of The Species (1859). It is a symptomatic of the controversy his name still arouses that my avowedly religious taxi driver expressed scepticism as to why anyone would entertain a trip to visit the house of The Great Satan, and proceeded to quiz me as to my belief in the bible.
In fact, Darwin publicly indicated one could be both a theist and an evolutionist in 1879. Shortly before shuffling off this mortal coil he defined his position as an agnostic.
Since these were not times an atheist would be put to death or socially shunned for declaring themselves there was no overwhelming need to abide by Victorian convention. Further, as is remarkably clear from the visit, he and his family were hugely influential and well connected. They were creatures of the enlightenment. Charles Darwin was a kind of evolutionary apotheosis of his clan.
The crucial point to appreciate – as I explained to the taxi driver who maintained his vain attempts at spiritual conversion – is that Darwin is and was right. It remains one of the few works of science that has stood the test of time. The qualifier, an idea as old as Lamarck the spiritual father of genetics, is that the environment leads to genetic alterations and random mutations that generate the gene sequence for natural selection to act. Thus, our environment can influence DNA by altering phenotypic and genotypic variation. This is called epigenetics. Nature. Nurture. Genetics. But the citadel stands.
His ideas evolved gradually. And common design was very much part of the reflection and collection exercise that was The Voyage of The Beagle, which occurred in spite of the reservations of his wealthy father, who funded the trip. On returning he was lionised, becoming a national hero. That almost five-year trip – particularly his observation on the different types of tortoises and mockingbirds and how certain species became extinct – led to the theory of evolution and the notion of the transition of the species. Thus, The Voyage nurtured the fundamental ideas, based on empirical findings of live specimens and fossils in South America.
He published extensively on his return, but there is a paradigm shift in 1837 In July, with the development of his famous evolutionary drawing The Tree of Life, immortalising his notebook, which I viewed at first hand. The tree is prefaced in his bold handwriting with the words: I THINK.
Watercolour by the Beagle’s artist Conrad Martens,
Cartesian
Well Descartes’ cogito ergo sum is the foundation of all human elevation. Centuries later, freedom of thought was central to Clarence Darrow’s famous speech in defence of Darwinism the Scopes Trial of 1925. Such thought distinguishes us, he said, from the sponge or the amoeba. In defending Darwin Darrow said:
Can’t you understand? That if you take a law like evolution and you make it a crime to teach it in the public schools, tomorrow you can make it a crime to teach it in the private schools? In addition, tomorrow you may make it a crime to read about it. Soon you may ban books and newspapers. Then you may turn Catholic against Protestant, and Protestant against Protestant, and try to foist your own religion upon the mind of man. If you can do one, you can do the other. Because fanaticism and ignorance are forever busy and needs feeding. And soon, your Honor, with banners flying and with drums beating we will be marching backward, BACKWARD, through the glorious ages of that Sixteenth Century when bigots burned the man who dared bring enlightenment and intelligence to the human mind!
That seems like a description of what is being done in America and elsewhere in God’s name and, indeed, in the name of secular political correctness.
After many papers and an exhaustive study of barnacles, Darwin developed the crucial idea of a homologue or variation, for it is variation and adaption that are crucial to evolution. His greatest work was only ultimately published after his fellow scientist Russel wrote to him with the same idea. He did not want to be gazumped, intellectually speaking. This led to a joint paper shortly followed by the bestselling masterwork, The Origin of The Species, which has became a secular bible.
The book refutes completely creationism, the beautiful poetry of genesis as Darrow called it in The Scopes Trial that the world was created in seven days. Darwin was clearly right, but we are no longer in a secular age. All of this might have seemed trite and taken as accepted fact, save for the recrudescence of evangelical Christianity worldwide, which is creating a new auto de fe and inversion of the truth.
Harvard Yard.
The Trump administration is now defunding the academy. Harvard, in a last gasp of American liberalism, is fighting back. Yet its corporate sponsors resile. We are entering a new dark age. In the list of prohibited books of the future I expect The Origin of The Species to appear every bit as much as Nabokov’s Lolita or Joyce’s Ulysses. In the legendary American science fiction writer Ray Bradburys novel Fahrenheit 451 books are burned by firemen. Now we have a social media and controlled media auto de fe,
Regarding the theory of evolution, it seems that the initial idea may have in genesis in his grandfather Erasmus. In 1794 his polymath grandfather book Zoonaamia made the same point, so the idea was implanted early:
Would it be too bold to imagine that all warm-blooded animals have arisen from one living filament which the great first cause with animality with power of acquiring new parts, attended with new propensities …….and of delivering down these improvements by generation to its posterity.
In fact, the entire family, represented by a tree on the wall in the museum, had a significant influence. Another grandfather, Josiah Wedgewood was one of the pioneers of the Industrial Revolution.
The Darwin Museum is also littered with quotations, including the most obviously true about how one singular fact, or mutation, can lead to survival or the decline of a species, or an individual. In that respect let us confront the gorgons head and assess whether he bears responsibility for what has been done in his name. By that I mean Social Darwinism, the most centrally awful vogueish evil idea of our age.
Erasmus Darwin.
Social Darwinism
Darwin drew a crisp distinction between his ideas as a scientist and social commentator. He never expressed the idea that evolutionary theory was a good idea for social policy. He also argued particularly in The Descent of Man that feelings, or social instincts, such as sympathy for one’s fellow man, and moral sentiments, were intrinsic to society. This is an important, if scientifically detached, concession
On the other hand, he associated with various people including his cousin Martineau who were proponents of Malthusianism, the strict regulation of breeding and the need to confine the unfit in prisons and insane asylums. Swifts earlier A Modest Proposal (1729) demonstrates the absurd cruelty of these ideas.
Social Darwinist ideas led the American business caste, including the Rockefellers and the Carnegies, to advocate for the triumph of the fittest, and apply selection criteria and concepts of struggle to the world of business, despising the weak and the defenceless. Richard Hofstadter’s famous 1944 book Social Darwinism in American Thought actually coined the phrase Social Darwinism. He used it to attack unregulated greed, oligarchical capital and racism. He also, in a subsequent book, equated it with populist ignorance. This reaches an apogee of awfulness with the quasi-scientific ideas of Ayn Rand, in books such as The Fountainhead (1943).
Darwin’s half cousin friend, the polymath Francis Galton was the founder of eugenics, and in effect he argued for the coupling of superior minds. He also came perilously close to condoning genocide in arguing for the extinction of inferior races, though he did not consider other races as intrinsically degenerate. He believed immigration was needed and welcome, depending of course on the immigrant. The sense of falsetto superiority is clearly apparent. Such nonsense led to even the legendary socialist judge Oliver Wendell Holmes in Buck v, Bell (1921) – who was cited in the defence in the Nuremberg Trials – upholding the compulsory sterilisation of a mental defective, saying that three generations of imbeciles are quite enough.
Darwin himself was quite specific that his theory of evolution did not apply to social policy and was undesirable. The Nazis endorsed social Darwinism One key high command proponent Alfred Rosenberg was hanged at Nuremberg.
The Decline of the West
Perhaps the most influential text of Social Darwinism came with Oswald Spengler’s The Decline of the West (1926), which suggested that much of the blame for the decline of European civilisation could be blamed on the Slavic and other ‘degenerate’ races.
The counterpoint of the argument was that Aryan blue blood, whether Germanic or Anglo Saxon, was the emblem of purity and that the other races had corrupted the gene pool. Spengler influenced Hitler, and the snowball of fascism led to the extermination of those undesirable races and the nightmare of the Holocaust.
Such matters were hitherto of historic concern, which until recently seemed like a distant epoch, but regrettably this form of Social Darwinism is back in fashion, as a new corporatised Shoah of economic liquidation and segmentation beckons, accentuated by the effect of lockdowns and the rise of the far right. In an age of chaos and uncertainty, the power grab of the strongman is evident for all to see.
Intellectual ideas that gain traction are not necessarily good ideas. Social Darwinism and Malthusian ideas are back in vogue. But do not blame Charles Darwin at least exclusively.
If forced or available for comment, what would he say I wonder. A contemporary scientist, the Italian physicist Carlo Rovelli, in Seven Brief Lessons on Physics wrote:
I believe our species will not last long. It does not seem to be made of the stuff that has allowed the turtle, for example, to continue to exist unchanged for hundreds of millions of years; for hundreds of times longer, that is, than we have even been in existence. We belong to a short-lived genus of species. All our cousins are already extinct. What is more, we do damage. The brutal climate and environmental changes which we have triggered are unlikely to spare us. For the Earth they may turn out to be a small irrelevant blip, but I do not think that we will outlast them unscathed – especially since public and political opinion prefers to ignore the dangers which we are running, hiding our heads in the sand. We are the only species on Earth to be conscious of the inevitability of our individual mortality. I fear soon we shall also have to become the only species that will knowingly watch the coming of its own collective demise, or at least the demise of its civilisation.
The late great Pope Francis’s experiences in the barrios of Buenos Aires appears to have shaped an empathy towards those afflicted with extreme poverty and subjected to degradation. He preached tolerance, engagement and social and economic justice. Let us hope the liberation theology that is intrinsic in Francis’s legacy is not tainted by the dark money of the Vatican. He died several hours after meeting Mr Vance. Darwin would, I suspect, also have approved of Pope Francis but felt the ideas of Mr Vance deeply inappropriate.
In his last great novel The Plot Against America (2004) Philp Roth posited plausible circumstances where President Franklin D. Roosevelt, the great social democrat, could be dislodged by the proto-fascist Charles Lindbergh.
Sadly, a failure to understand history bedevils our time. We have sleepwalked into a similar scenario after the last U.S. Presidential election. Now I fear it is too late. A fascist leader appears to have been re-elected President.
In 1935, as much of Europe was succumbing to fascism, Upton Sinclair penned his dystopian novelIt Can’t Happen Here in which Senator Berzelius “Buzz” Windrip enters the presidential election campaign on a populist platform. He promises to restore the country to prosperity and greatness, offering each citizen $5,000 per year. Portraying himself as a champion of ‘the forgotten man’ and ‘traditional’ American values, Windrip defeats incumbent President Franklin D. Roosevelt for the Democratic nomination, and then goes on to beat his Republican opponent.
It can happen here and now. Trump is emblematic of how, worldwide, a new form of corporate fascism, or corporate communism, has become dominant. So let us examine the initial pronouncements.
Inauguration Day
What did his flurry of executive orders mean, apart from braggadocio and sabre rattling? This is quite apart from the caveat that executive decrees short-circuiting the legislative process are the hallmarks of fascism, as Carl Schmidt the legendary jurist argued. American democracy appears to be in tatters.
In an inaugural address that was remarkably coherent and lucid in conceptual terms, Trump invoked President McKinley (1897-1901). The implications are clear. McKinley colonised Hawaii, Puerto Rico, Guam, the Philippines and Cuba, and was also hostile to global cooperation.
So, resignations from the admittedly corrupt WHO and the revocation of the Paris Climate Change Agreement are the first two steps. Now, all directly or indirectly funded citadels of world governance are under siege if they oppose or sanction American interests.
Danish author Peter Høeg penned a famous bestselling book Miss Smilla’s Feeling for Snow (1982) about Greenland and more precisely the Danish government’s treatment of the indigenous Inuit community The engine of the plot is the concealment of a state secret: a lethal meteorite and a parasitic worm that serves as an existential threat. The ruling Danes are not portrayed sympathetically with respect to Greenlanders. Indeed, according to a recent poll Greenlanders aspire for autonomy, but not another external coloniser.
Yet Donal Trump wants Greenland and seems prepared to invade. Thus, he sent his son to a resort in the island’s most populous town Neuk armed with the slogans about making Greenland great. The thought did occur that Inviting homeless people into a 4-star hotel, albeit accidentally, is a policy he could replicate in his domestic policies, though I doubt he will. The whole staged visit was of course bellicose posturing, and the shape of things to come.
Why then the sudden interest? Well, it’s not so sudden frankly, but it’s most revealing. The interest stems from what is apparent in the Trump regime’s agenda: a zero-sum game of competition between nation states, leading to a global competition for diminishing resources. Texan and indeed Arabian oil supply may run dry and is certainly being exhausted at current consumption rates.
Greenland is terra nullius or virgin territory, unspoiled in one crucial respect. It is among the last outposts where the riches of the earth can be extracted – to enrich the few and destroy the planet. More to the point, it will soon be exploitable given that climate change is overwhelmingly likely to cause the glaciers to melt.
Black Gold
Oil! (1927) is the title of Upton Sinclair’s epic novel about American greed, which was adapted into the film There Will Be Blood (2007). Today, American capitalist colonialism wants not just Greenland, but the Northern Territories of Canada. Drill Baby Drill.
The Northern Territories of Canada are also an Arctic landmass of untapped resources. In his speech, he specifically mentioned tariffs – incidentally also a Mckinley policy – and tariffs were only just averted from coming into force against Canada and Mexico. China was also hit with retaliatory measures. Yet, it is the plain people of America who voted for him who will pay the bill, only after he has fired half the federal government.
Thus, invocation of McKinley in his speech is also the invocation of a solid hard currency President that is for the few, not the many.
The concept in international law of domestic jurisdiction is to respect national sovereignty, and only where there have been systematic human rights abuses to interfere in the domain reserve of a state. The justification of a breach of an obligation ergo omnes or a Crime Against Humanity is, ideally, filtered and ratified by the U.N.. This has often occurred in a bogus fashion, such as the dodgy dossier that led to the Bush-Blair war on Iraq. Trump also wants oil, but is going about it in a different way.
So, he will not accept any international sanction or control, and will move with autocratic impunity. Play ball or we will invade, or refuse to recognise the UN, or perhaps force it to decamp from New York. Should the General Assembly object to any of this it may simply be liquidated. The statement above might seem alarmist but there are few checks and balances left.
That seems to me to be what is happening is with the division of the world into trading blocs or sectors. Trump does not want to spend hard dollars on wasteful wars in the Ukraine or Gaza but that is not to say he gives a rat’s arse about human rights. Instead, he aims to establish a profit-driven North American confederation, to include Canada and Greenland, and, of course, reclaim the revenue of American businesses.
Hi ally, or puppet master, Elon Musk, also has limited respect for national sovereignty, but a different mechanism of attack. He destabilizes through funding political actors such as the ADF in Germany and agitates online against the Starmer administration.
America wants pliant co-operative regimes, with Musk acting as a modern-day Kissinger-without-portfolio. Trump has no doubt suspended the ban on Tik Tok to allow his bestie to buy it up and pollute the minds of an entire generation. This is Freedom of Expression if we will tell you what to say.
ICE and Department of Homeland Security agents detaining a man.
Ethnic Cleansing
We will also see de facto ethnic cleansing, as in his proposal that two million Gazans should vacate their land to make way for a new Riviera. Also, the removal of undesirable aliens, even those for whom America is a birthright, and the development of a Mexican Iron Curtain.
The new form of cleansing is akin to the McCarthyite Red Scare, given the removal of employment rights of those who are opposed to his interests and thus by definition seditious. Most of this action will be upheld by a compliant and docile judiciary. In short federal employees with even a trace of Red will be summarily dismissed.
And what of Ireland? The extension of American trade will surely lead to the decamping of multinational corporations. American hedge funds already enjoy a dominant interest in our domestic housing market. Nevertheless, I predict tariffs will be employed against Ireland and Europe if regimes are less than favourable towards the United States.
Further, the entire liberal WOKE agenda, which in my view has been deeply troublesome and counterproductive, is being dismantled. ‘His Christians’, as he calls them, form the Bible Belt will see a return to very traditional female and male roles. This is of course after his Supreme Court overturned Roe v. Wade. His Defense Secretary Pete Hegseth also has very extreme views on homosexuality, so watch this space.
There were also pardons for far-right protestors after he lost the last election, and a promised investment in more lethal injections and an escalation of the death penalty. The previous few years have seen the US Supreme Court block off appeals for ineffective assistance of Counsel. One senses that his emergency powers remit of executive action will not be confined to the Mexican border, but the legislative remit will be much wider and internal, and will be upheld by SCOTUS.
It is apparent that the worldwide human rights post-Second World War consensus is over save for a few enclaves. State authoritarianism – with his acolytes in Argentina and Italy present at the inauguration – will now increase at a rapid pace.
More fundamentally, if American democracy doesn’t survive this then all democracies are threatened. We all contract pneumonia, politically speaking, when they catch a cold.
Karl Kraus
The legendary Austrian journalist Karl Kraus died in 1936 after editing Die Fackelfor thirty-seven years, shortly after Hitlers ascension to power in Germany. At the height of collapse, and after a self-enforced interregnum of nine months he published one last edition that included the extended essay ‘The Third Walpurgis Night’.
The essential argument is that with their devotion to palaver and tactics, the Social Democrats facilitated Hitlers rise. He despaired at their belief that ‘they could break [the] magic circle [of Nazism] by means of the Constitutional Court.’ Consequently, the essay supports the Austrian Christian-Democratic Chancellor Dollfuss as anything other than Hitler was needed. Well, the lunacy of liberal political correctness and their failure to focus on real issues facilitated misguided Populism.
The opening paragraph of the extended essay is devastating in its implications for today:
As to Hitler, I have nothing to say. I am aware that as the upshot of extended reflection, of repeated efforts to grasp the phenomenon and the forces driving it, this falls far short of expectations. They were, after all, pitched higher than ever before at a polemicist who is popularly—but mistakenly—expected to take a stand; and who, when confronted by any evil that appeals to his temperament, has indeed been prepared to “stick his neck out”. But there are evils which not only make the neck cease to be a metaphor…
The best reading of Walpurgis Nacht, as Patrick Healy has suggested, is that satire should point not only in the direction of rhetorical agility – use of mockery, insult, indignation etc. – but also to its fusion with the voice of the moralist, employing the skill of a standup comic. The word has also a meaning of stew bringing all ingredients together. However, just as with Hitler, so with Trump, we are now beyond satire. At one level we must remain silent, or use words sparingly.
Kraus, in his masterly analysis of Goebbels (a precursor to Musk), accepts that so deeply clever and embedded is the propaganda – and the appearance of culture and progress – that we forget that they intend to do what they are going to do.
The reaction to the camp fascist Nazi salute by Musk is a clear indication that seriously cultivated people should not take these barbarians seriously, but they ought to be taken seriously, as globally, in a state of collective hysteria, people are voting for them into office. So, is it that we, the civilised, are no longer to be taken seriously?
Watching this shit show unfold is like being the Isherwood figure in the film Cabaret at the German been garden as he hears a version of the Horst Wessel being sung.
Trump, unlike nativistic Greenlanders, wants ownership of land and people’s minds, but in a very unstable situation there is an alternative. Remember what happened to President Mckinley.
Late last year HHJ Gumpert KC – one of the judges in the formidable fortress that is Woolwich Crown Court the flagship anti-terrorism court in the U.K. – kindly secured for me a visit to the ICC out of court time. The tour was given by a former member of the team he led in the Congolese prosecutions.
The ICC issued its first judgment in 2012 when it found Congolese rebel leader Thomas Lubanga Dyilo guilty of war crimes related to his abuse of child soldiers. Lubanga was sentenced to fourteen years’ imprisonment. Gumpert also successfully prosecuted Dominic Ongwen, who was sentenced to twenty-five years for myriad crimes.
The Rome Statute, which entered into force on 1 July 2002, established the International Criminal Court, though Israel voted against it, after murmurings on the transfer of populations that is the resettlement programme. The court works on the principle of ineffectiveness, where national courts have been derelict. It lacks universal territorial jurisdiction, and may only investigate and prosecute crimes committed within member states, crimes committed by nationals of member states, or crimes in situations referred to the Court by the United Nations Security Council.
On 17 March 2023, ICC judges issued arrest warrants for Russian leader Vladimir Putin and the Presidential Commissioner for Children’s Rights in Russia for alleged child abductions in the 2022 Russian invasion of Ukraine. Putin was charged for actions against Ukraine, which although not a party to it, has accepted the authority of the court since 2014. Should Putin travel to a state party to it, local authorities can arrest him. Later in 2023, Russia’s Ministry of Internal Affairs retaliated by placing several ICC officials on its wanted list. On November 21 last year, when I was in Gompert’s court in Woolwich, warrants were formally issued for the arrest of Benjamin Netanyahu.
It occurs to me that an informal journalistic war crimes court was initiated by Christopher Hitchen, whose book The Trial Against Henry Kissinger (2001) accused Henry Kissinger of war crimes. This led to a Parisian judge issuing an arrest warrant and Kissinger hopscotching it back to the safety of Fox News. So, Netanyahu will no doubt control his foreign trips, and Ireland is clearly out of the question. Mr Putin does not seem to need to travel to enemy states.
The process to establish the ICC district may be “triggered” by any one of three sources: (1) a state party, (2) the Security Council, or (3) a prosecutor.
So, there is huge independence in that there is a self-originating prosecutor jurisdiction. though he needs the approval of Pre-Trial Chamber to initiate the investigation. The factors listed in Article 53 are a reasonable basis for a prosecution. These include whether the case would be admissible, or whether there are substantial reasons to believe that an investigation would not serve the interests of justice (the latter stipulates balancing against the gravity of the crime and the interests of the victims).
During my visit there was much talk about thePolicy paper on case selection and prioritisation published in September 2016, indicating that the ICC would focus on environmental crimes when selecting cases. According to this document, the Office will consider prosecuting Rome Statute crimes that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.
Richard A. Falk coined the phrase Ecocideas a Crime Against Humanity in 1974. In my view we should also include Economicide, when one deals with the illegal dispossession of land. What about bringing banksters or hedge fund managers (including through NAMA) to justice? And what about no longer drawing a distinction between the Kinahan gang and Goldman Sachs? Or is it time bring a case against Bill Gates or Elon Musk?
It should be born in mind that, alas, having someone prosecuted by the ICC is a tricky exercise. The Israelis clearly breached international law when they bundled Adolf Eichmann onto a plane in Argentina in 1960. How do you get Netanyahu to court? Or Putin? Or what if one indicted Trump or Bannon? A real danger is that the present U.S. administration will directly or indirectly withdraw funding for the court, even though the U.S. is not a signatory. They might even undermine American officials for working against the interests of Israel, or any of its allies in this dangerous world.
The core concept of Crimes Against Humanity had its first incarnation during the Nuremberg Tribunal, but its inception may derive from the discourse in Sophocles ‘Antigone’ as to whether an immoral law is a law. In that play – the Rosetta stone of modern natural law – the heroine Antigone observes to the harsh, positivist Creon, King of Thebes, who will not allow her brother, who has fought against him, to be buried with the proper rites, that natural law has been breached.
Yes; for it was not Zeus that had published me that edict; not such are the laws set among men by the justice who neither dwells with the gods below; nor deemed I that thy decrees were of such force, that a mortal could override the unwritten and unfailing statutes of heaven. For their life is not of to-day or yesterday, but from all time, and no man knows when they were first put forth…
From the great Roman statesman Cicero’s perspective, an unjust law is not a law: ‘Those who formulated wicked and unjust statutes for nations, thereby breaking their promises and agreements, put into effect anything but laws.’
Most famous of all, early Christian lawyers, St Augustine of Hippo said: ‘lex iniusta non-Est lex’ – an unjust law is not a law.
Radbruchs’s Formula
A crucial juristic figure was the German Gustav Radbruch (1878-1949), both a law professor and a government minister during the Weimar Republic. In Radbruchs’s Formula he argued that where statute law was incompatible with positivist law to an intolerable degree, and where it negated the principle of equality, which is central to justice, it could be disregarded.
[P]reference is given to the positive law, duly enacted and secured by state power, even where it is unjust and fails to benefit the people unless it conflicts with justice to so intolerable a level that a statute becomes in effect false law and must therefore yield to justice…where there is not even an attempt at justice. Where equality, the core of justice, is deliberately betrayed in positive law then the statute is not merely false law it lacks completely the very nature of law.
For him justice (Gerechtigkeit) was linked to human rights. Thus, in Funf Minuten Rechtsphilosophie he contended that there was a law which was above statute: ‘However one may like to describe it: the law of God, the law of nature, the law of reason.’
It is important to note that his views were followed in various German cases after the War and was part of the discourse that led to the Nuremberg war crimes tribunal.
Historically much later, in the 1992 cases of Strelitz, Kessler and Krenz, former East German Border Guards were convicted of offences despite section 27/2 of the East German Border Act that indicated that the protection of the border outweighed the right to life. The German Supreme Court in endorsing Radbruch indicated that:
[A] justification available at the time of the act can be disregarded due to its violation of superior law if it shows an evident and gross violation of basic principles of justice and humanity… The contradiction of the positive law to justice must be of such unbearable proportions that the law must yield to justice as incorrect law.
A group of Bosniaks from the Lašva Valley close by Travnik, Bosnia and Herzegovina that were forced out of their homes and villages by Croat forces in 1993. Photo: Mikhail Evstafiev.
Ethnic Cleansing
The Nuremberg Court and The European Convention on Human Rights were set up with the idea that the cataclysms of the past must never happen again. Sadly more have come to pass. In Bosnia we witnessed the arrival of a modern variant: ethnic cleansing. In 1992, the United Nations General Assembly deemed ethnic cleansing to be a form of genocide stating that it was:
Gravely concerned about the deterioration of the situation in the Republic of Bosnia and Herzegovina owing to intensified aggressive acts by the Serbian and Montenegrin forces to acquire more territories by force, characterised by a consistent pattern of gross and systematic violations of human rights…. controlled areas of concentration camps and detention centres, in pursuit of the abhorrent policy of ‘ethnic cleansing’, which is a form of genocide.
In 2001, the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was genocide though the Court had no authority to determine whether it amounted to war crimes and Crimes against Humanity. A kind of fore runner of the ICC though ad hoc.
The court concluded by seeking to eliminate a part of the Bosnian Muslims, the Bosnian Serb forces had committed genocide. They targeted for extinction the 40,000 Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general. They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them, solely on the basis of their identity.
Slobodan Milosevic, the former President of Serbia and of Yugoslavia, was the most senior political figure to stand trial at the ICTY. He was charged with having committed genocide. The formal accusation accused him of planning, preparing and executing the destruction of the Bosnian Muslim national, ethnical, racial or religious groups, as such, in named territories within Bosnia and Herzegovina.
He died during his trial, on 11 March 2006, and no verdict was returned. Ten years later, Radovan Karadzic was found guilty of genocide in Srebrenica, war crimes and Crimes against Humanity, ten of the eleven charges in total, and sentenced to forty years’ imprisonment.
Morality of the Law
The natural lawyer Lon Fuller, in supporting Radbruch, argues that the German courts were correct in striking down the Nazi laws and that a legal system must have certain characteristics if it is to command the fidelity of a right-thinking person. Fuller, in The Morality of Law, (1964) argues that Nazi law did not have coherence and goodness and instances the use of retroactive legislation, such as the Rohm purge of 1934. Further, for Fuller, the Nazi laws were deeply immoral for a variety of procedural reasons. They were not published, they were vague, and they could not be interpreted in a congruent fashion.
We are now entering such a dangerous universe. In camera, unpublished surveillance laws are violating privacy, and retroactive and overly broad legislation erode free expression. The anti-immigration hysteria and the rise of the far right may lead to de facto ethnic cleansing. The control of the world by transnational corporations has occurred through violations of privacy, data mining and economic crime.
The real concern in northern Europe and in Brussels also is around how AI will not be controlled by a corporate economy. Why is that? Considerations of profit will ensure, as the former head of AI in Google recently argued, that within thirty years there is a ten to twenty percent chance of human liquidation. It trespasses in an unbridled way on boundaries.
The question of compensation and reparation also arose in our discussion at the ICC, and I mentioned that the Innocence Project in all its conferences has a separate stream for the exonerated. So does the ICC. Thus, surely it is time the Irish government finally to deliver on its Magdalene Laundry promises, and compensate those disposed by banksters? Fat chance.
The concept of obligations ergo omnes needs to be extended to new challenges. The ICC needs to be supported to extend its jurisdiction. They seem beleaguered but to quote Halldor Laxness they are at least Independent People. Independent People are important. Thus bankers were jailed in his native land Iceland when Independent People prevailed.
Feature Image: The premises of the International Criminal Court in The Hague, Netherlands. The ICC moved into this building in December 2015.
In an age of unrestrained Russian-bashing, the figure of Fyodor Dostoevsky might seem a provocative choice for this Public Intellectual series. He remains, however, in my view, the greatest writer of prose fiction who has ever lived. His greatest novels The Devils/Demons (1872) and The Brothers Karamazov (1880) are, frankly, unsurpassed in world literature.
As I see it, other great Russian novels of his time, Fathers and Sons (1862) by Ivan Turgenev and Anna Karenina (1878) by Leo Tolstoy are just a notch below; perhaps reaching the heights of Crime and Punishment (1866) or The Idiot (1869), the two lesser of his four great novels.
This is to assume that his other works are of lesser value. Yet in the novella Notes from an Underground (1864) as well as White Knights (1848) Dostoevsky surpasses The Death of Ivan Illich (1886) by Tolstoy.
The anti-hero of Notes from an Underground anticipates a form of government where:
All human actions will then of course be calculated, mathematically, like logarithm tables up to 108,000, and recorded in a calendar; or even better, well-intentioned publications will then appear … in which everything will be so precisely calculated and recorded that there will no longer be deliberate acts or adventures in the world.
This he suggests would create a reaction, in the form of a dictator:
I, for example, wouldn’t be at all surprised if, in the midst of all this reasonableness that is to come, suddenly and quite unaccountably some gentleman with an ignoble, or rather a reactionary and mocking physiognomy were to appear and, arms akimbo, say to us all: ‘Now, gentlemen, what about giving all this reasonableness a good kick with the sole purpose of sending all those logarithms to hell for a while so we can live for a while in accordance with our own stupid will!
In fact, across Russian literature only Nikolai Gogol and Anton Chekhov wrote better short story writers. Besides being a master of the short story form, Chekhov was primarily a playwright. Unprecedented in world letters, he is almost the equal of Dostoevsky, but not quite!
In Russian letters thereafter only the great novels of Mikhail Bulgakov, The Master and the Margarita (1967) and The White Guard (1925) the latter of which perfectly encapsulates – unlike our official media – the reasons for Putin’s ‘special military operation’ in Ukraine. Many Russians (and indeed some Ukrainians) view what was the breadbasket of the Russian empire as integral to and inseparable from Russia itself.
Portrait by Vasily Perov, c. 1872
Tolstoy or Dostoevsky?
In a famous monograph (1959), Tolstoy or Dostoevsky?, George Steiner argued that the two authors represent polar opposites in the Western canon, the former epic, utopian, and aspiring to achieve heaven on earth – with all its attendant dangers. The latter, for all his peasant Christianity and hatred of nihilism, asserting the pre-eminence of free will, while portraying a world beset by evil, intrigue and deceit.
The great Russian effete of a later era Vladimir Nabokov, lecturing in exile in Columbia University claimed he despised Dostoevsky’s vulgarity and excess. Of course, unlike Nabokov, Tolstoy or Turgenev – the latter of whom Dostoevsky had a fractious relationship – Dostoevsky was not an aristocrat. He was not a blue blood. His father was a ‘mere’ country doctor, murdered after a descent into dissolution and an echo, Freud argues in Dostoevsky and Parricide (1928), of the central theme of The Brothers Karamazov. Moreover, Dostoevsky was profoundly anti-Catholic
It should also be said that Dostoevsky was an editor, journalist, and social critic, which could be a dangerous role to play in Czarist Russia. He was really a philosopher in that all his great books are novels of ideas, and display in all its fullness the eschatological imagination. An intellectual of the highest rank, and superb jurist and penologist, not just in terms of the immense amount of attention devoted to questions of justice and the criminal process in his work – not least the trial of Dmitri Karamazov – but also heavily influenced by his penal servitude in Siberia.
Also, uncomfortably for this writer at least, he was a deeply religious man, and there was no hypocrisy evident in this outlook. He acquired a deep religious faith from his mother during his childhood, quite contrary to the secular temper of his age. While I distrust this, I understand in Freudian terms its aetiology.
He was, however, deeply anti-Catholic. At one point his apparetnly omniscient Idiot, Prince Myshkin exclaims:
In my opinion Roman Catholicism isn’t even a religion, but most decidedly a continuation of the Holy Roman Empire, and everything in it is subordinate to that idea, beginning with faith. The Pope seized the earth, an earthly throne and took up the sword; and since then everything has gone on in the same way, except they’ve added lies, fraud, deceit, fanaticism, superstition, wickedness. They have trifled with the most sacred, truthful, innocent, ardent feelings of the people, have bartered it all for money, for base temporal power. And isn’t that the teachings of the Antichrist?’
Dostoevsky, 1847.
Early Period
In his school years, splendidly documented by his great biographer Joseph Frank he intervened to protect children against thugs. On his way to the prestigious engineering school, where he was accepted in 1831, he was horrified by an act of savage brutality against a peasant he witnessed at a coach station. Later, through his hugely influential periodical Diary Of A Writer – not unlike Charles Dickens’ Household Words or All The Year Round towards the end of his life – he declaimed against a brutal flogging of a serf by an aristocrat, who was put on trial and justly punished. There is no doubt that from the get-go his sympathies were with the little man. Thus, like Charles Dickens he was the chronicler of his time in Time.
Thus, for his entire life no matter how famous he became he was always an advocate for the poor, students if they had legitimate grievances, those falsely accused, unless, unforgivably, they were Jewish. Poor Folks (1845) is of course his first novel and is a huge success and a minor masterpiece. It is, however, an elaboration of that greater Russian work Dead Souls (1842) by Gogol whose awful theme is the purchasing of dead peasants’ souls for profit. The ultimate extension of the landlord class. This is again prescient for our times.
Poor Folks was acclaimed as the first exercise in social realism, and the plight of self-abnegation before corporate feudalism. Here we find words relevant to our neoliberal age: ‘Judge whether one was right to abuse oneself for no reason and be reduced to undignified mortification.’ Today’s serfs are subject to social media targeting in an age of surveillance and consumer capitalism. Our very identities are mined for data.
Poor Folks was followed by The Double (1846), which though not among his great novels expresses the split personality – a dominant theme in his oeuvre to come – as later do Oscar Wilde in A Picture of Dorian Grey (1891), Robert Louis Stephenson in Jekyll and Hyde (1886), and more recently Naomi Kleins’ Doppleganger A Trip into the Mirror World.
Vissarion Belinsky
Belinsky
During this early period Dostoevsky came under the influence of the intellectual Vissarion Grigoryevich Belinsky who was torn between the veneration of the poor – a form of Christian humanism – and an overarching commitment to materialism. The book expresses that conflict.
The success of Poor Folk led him to being welcomed into intellectual circles. An unfortunate association with the Petrashevsky Circle, however, led to him being exiled to Siberia and then conscripted into the army. Moreover, he strongly believed he was about to be executed as the Tsar staged a mock execution of him and his co-conspirators in Samonkey Square. Interestingly, one of those involved in his persecution was Ivan Nabokov, a distant relative of Vladimir Nabokov.
This terrifying event it is said to have turned his head grey. It scarred him for life and was fictionally recreated in The Idiot (1869). We may assume that the description of the plight of a person sentenced to death by the state in The Idiot is biographical, considering his own experience of narrowly avoiding the Czarist firing squad. By comparison with the fate of a person assailed and killed by brigands he says: ‘the whole terrible agony lies in the fact that you will most certainly not escape, and there is no greater agony than that’. He asks: ‘Who says that human nature is capable of bearing this without madness?’
That and Siberia, where he underwent extreme hardship led to the fascination that engendered Crime and Punishment. In Siberia, as diarised by his biographer, he became less interested and mistrustful of the application of the letter, as opposed to the spirit of the law. Dostoevsky was never a literalist in legal interpretation terms, and was acutely conscious of the law’s failings. He was treated barbarically and barely survived. The law and its failings went on to dominate much of the rest of his fiction.
He returned a felon but quickly contributed to Time magazine, along with several other journals thereafter as editor and contributor, and to his next defining book The House of The Dead (1854), which offers a far better examination of the gulags than Solzhenitsyn.
Hans Hobern’s The Body of the Dead Christ in the Tomb.
Nihilism
This period of incarceration led to the development of a complex dialectic through his life. His hatred of nihilism – a phrase actually coined by Turgenev for the character Bazharov in his masterpiece Fathers and Sons (1862), alongside his warm embrace of Young Russia, a movement recalling Thomas Davis in Ireland and Disraeli in Britain. It was a progressive movement for reform in Russia, not least in seeking to ameliorate the conditions of the serfs.
Dostoevsky despised the nihilistic attitude, expressed ironically in Turgenev’s masterpiece: ‘That is not our business let us have a grand clearance first.’
The Russia of his lifetime, from Nicolas I onwards, was a time of great political turbulence and the development of revolutionary cabals often to reform the plight of the serfs. There was also a dialectic perfectly conveyed between Turgenev and Dostoevsky of a need for Russia to become more European. Turgenev, the aristocratic exile, argued for to become more autarchic. Dostoevsky sided with the poor folk and Mother Russia but not in a shrill way. The idea he coined, evident as early as 1861, was Pan Humanism, within a Russia influenced, but not dominated, by Westernisation.
The success led to a degree of European decadence, and for the rest of his life he was often abroad and in debt, though finally happily married after a string of unhappy relationships to Anna, his stenographer who he adored and was most attentive to.
What became a gambling addiction developed during his peripatetic European travels, and put enormous stress on his wife. Yet, in a moment of epiphany, after essentially losing the family silver, he finally gave it all up. His great novella The Gambler (1866) offers a frenzied portrayal of an illness, which destroys lives – as I have witnessed during my professional career. It also provides a lacerating attack on enduring national cultures. Here, Russians are portrayed as gambling riskily and haphazardly, Germans methodically and in a philistine way, while the French display an elegant decadence. How times have changed.
Prior to The Gambler there arrived the seminal existential text, unique in his oeuvre, Notes from Underground (1865), which predates Sartre and Camus by an epoch but is no doubt influenced by Kierkegaard.
The self-reflexiveness of the narrator in that he is both accused and accuser, torn between rational egoism and a concern for others. This is the Dostoevsky dilemma, and a prelude to the themes of the great novels to follow.
So on to Crime and Punishment (1868), written for the establishment Russian magazine Messenger, and a final step towards financial stability. It is his most famous and widely read work. To say it is not his best work would be true, but misleading in that within it scope it remains one of the great works of European literature.
The novel is the prototypical detective novel. Without this there is no Wilkie Collins or Raymond Chandler. The anti-hero Raskolnikov is torn between a nihilism inspiring an Übermensch sense of superiority, and a Christian piety. Here Dostoevsky anticipates the serial killers and corporate monsters of our age.
The prosecutor Petrovich is the voice of atonement and represents Dostoevsky’s sense of guilt before God. The book is also a condemnation of extremism and lawlessness.
When the prosecutor first hauls Raskolnikov into custody he expresses curiosity about an article that Raskolnikov wrote called ‘On Crime’, in which he suggests that certain rare individuals – the benefactors and geniuses of mankind – enjoy a right to ‘step across’ legal or moral boundaries if those boundaries act as an obstruction to the success of their idea. The prosecutor, in a much kinder way than the approach offered by Camus in The Outsider (1942) – who was hugely influenced by Dostoevsky not least in his play of The Possessed/Devils (1959) – finally forces him to confess.
The Idiot (1871) is the book that pleased Dostoevsky the most – and is arguably his most disciplined novel – and there is much of him in it. The central character of Prince Myshkin was much influenced by Dostoevsky seeing Hans Holbein’s Dead Christ (1529) painting. No doubt it expresses his deep faith in the decent and Christian man.
Yet Myshkin’s other-worldliness is the cause of his self-destruction, along with death and chaos wrought on others. The crucible of Russia at that time augments dark Dostoevsky’s mysticism. It is deeply personal and invokes his mock execution and epilepsy. It is a work that is curiously relevant to our time of vaccines, compliance and control, where 90% of humanity are to be treated as cattle, a process which can be achieved through re-education and vogueish Social Darwinism.
This brings us to the great citadel of world literature and in my view the greatest novel ever written The Devils (1868). At the time Dostoevsky was much influenced by the malign neglect of the civilised anarchist Herzen and his criticism that nihilists wished to abandon books, science and instead embrace destruction. Herzen in a famous polemic, echoing Dostoevsky’s own ideas I suspect, argued that Shakespeare and Raphaël were higher in the pantheon than socialism, nationalism or the emancipation of the serfs. The immediate sensation which precipitated the novels was the activities of the real life murderous Nechaev, a model for many of The Devils.
Towards the end of The Devils, one of the conspirators Lyamshin is put on trial and asked ‘Why so many murders, scandals and outrages committed?’ He responds that it was to promote:
the systematic undermining of every foundation, the systematic destruction of society and all its principles; to demoralize everyone and make hodge-podge of everything, and then, when society was on the point of collapse – sick, depressed, cynical and sceptical, but still with a perpetual desire for some kind of guiding principle and for self-preservation – suddenly to gain control of it.
The novel is the greatest condemnation of extremism in the history of ideas, containing his essential credo that once you have rejected Christ it is possible to go to inordinate lengths of evil. The book provides almost a replica of the current political climate where anarchy and extremism prevail, and in the midst of it all is the crucial figure of native Dostoevsky ambivalence, Stavrogin – a man who is torn between good and bad impulses, but the nihilism and decadence prevail.
The essential argument is that materialism, nihilism and decadence will stop at nothing and boundary after boundary will be crossed in the descent towards the personal and societal abyss.
Dostoevsky response, or antidote, is to assert that humanity must take collective responsibility in a Christian way. Thus, when Stavrogin reveals his appalling crime to the elder Tikhon, the latter responds by asking the forgiveness of Stavrogin: ‘Having sinned, each man has sinned against all men, and each man is responsible in some way for the sins of others. There is no isolated sin. I’m a great sinner, perhaps greater than you.’
After its publication, and his resumption of journalistic activities with The Diary of a Writer (1873-1881) he was widely acknowledged as the greatest living writer in Russia. He finally settled in his homeland, holding court both in letter and visitations to an increasingly enamoured public. In essence, he became the moral conscience of Russia.
Though the Diary of a Writer – finally published in totality by Scribner’s – contains some of his greatest short stories. He also rages against injustice and took a keen interest in the criminal process.
Dostoyevsky’s notes for Chapter 5 of The Brothers Karamazov.
The Brothers Karamazov
Thereafter he began his final novel The Brothers Karamazov. His sensitivity to injustice, it must be said, is afflicted with one blind spot, lest this piece be represented as hagiographical! He showed a lifelong hatred of Jews, who he and Turgenev too often caricatured, in the most vicious of terms. When a Jew was correctly acquitted, he bemoaned the verdict. In this sense he a creature of his time, but also trespassed a moral boundary.
His antisemitism was a product of at times, a Little Russian mentality and his sense of the volk, so there is a negative and abhorrent mysticism here of old tensions, resurfacing in our age. Also, his embrace of what might be described as Populism at this stage has dangerous relevance to our time.
Many of his great books were written like cliffhangers under enormous stress explaining the fervid prose, and as every book of his final novel – three years in genesis – came out the public reacted in a way not unlike the London public’s reaction to the death of Little Nell. His work, along with his literary peers, forged Russian consciousness, for better or worse.
This culminated in a famous face off where all the intelligentsia of Russia attended an event to celebrate Pushkin’s anniversary. A feud had been brewing for decades between two opposite visions of Mother Russia, one represented by Turgenev with his condescending attitude towards the poor folk and his internationalism; the other by Dostoevsky who represented the Christian Tsarist nationalist strain.
Dostoevsky’s great speech at the banquet is well worth reading. It effectively destroys the reputation of Turgenev and had the impact at the time of Martin Luther King’s ‘I have a dream.’ It ends in a beautiful expression of compromise and Pan Humanism, envisioning a Christian Russia sympathetic to the poor, but receptive to other cultures, urging respect for tradition but acknowledging a need for reform and tolerance.
It arrived while he was writing The Brothers Karamazov, by which time the debts, the epilepsy, the chaotic lifestyle and huge fame had taken their toll, He was writing around the clock to complete it, with old father time breathing down his neck.
This book is a foundation stone of literate moderate civilisation, containing everything of the selfless Christianity and love he espoused, embodied in the character of Aloysha, who is a more modulated version of Myshkin from The Idiot. It contains some of the greatest passages in literature, including The Grand Inquisitor dialogue, and culminates in over one hundred pages of the trial of Dmitry Karamazov for parricide.
It should be said that like Dickens, Dostoevsky distrusted lawyers, not least their tendency to allow their eloquence to overflow at the expense of the truth, and their blindness to the moral consequences of their action. The representation of the defence speech in Karamazov is deliberately weak. Even though, as the book makes clear, Dmitry is morally guilty for his monster father’s death, he is not legally guilty. Yet the defence lawyers seem to rely on the mercy plea, and on a confused argument suggesting implicitly some people deserve to be killed. Not exactly a full throttle defence, but one recently evident in Ireland.
Dostoyevsky identifies a broad moral continuum between a capacity for the highest and basest thoughts and deeds. If any character represents the views of Dostoyevsky himself it is perhaps the chief prosecutor Ippolit Krillovitch, who, uncannily, like the author, dies within a few months of the novel’s central events: the apparent patricide, and aftermath, of the wily and debauched Fyodor Pavlovich Karamazov. His sons represent different faces of a timeless character, and in the ensuing trial Krillovitch draws attention to the inadequacies of each. So searing are the insights that Dimitri is prompted to thank his own prosecutor, admitting that he: ‘told me a lot about myself that I didn’t know’.
Krillovitch describes those of the Karmazov ilk as having: ‘natures with such a broad sweep… capable of encompassing all manner of opposites, of contemplating both extremes at one and the same time – that which is above us, the extremity of the loftiest ideals, and that which is below us, the extremity of the most iniquitous degradation.’ He adds: ‘others have their Hamlets; so far, we Russians have only our Karamazovs.’ That Karamazov archetype surely extends beyond Russia.
The reception to The Brothers Karamazov was ecstatic, and his finances looked permanently healthy, but accounts of the time show how frail he had become. The multiple social engagement at this stage were not helpful and a stroke occurred after some final pieces in Diary of a Writer, many published after his death.
All of Russia mourned the death of a man who had been sent to Siberia. They had lost their great writer and intellect.
Dostoevsky’s funeral,
Legacy
For our present age there is much to ponder over Dostoyevksy’s legacy. First is the need for the assertion of Christian, or humanist values. This includes the establishment of community, even if, as I would argue, this remains secular in its guidance. Moreover, we must protect the poor, the falsely accused and the defenceless. Moral nihilism in all its guises must also be opposed. And the devastating effect of extremism should be portrayed.
We should also be alive to the excesses of Dostoevsky in a tendency towards Populism, veneration of an abstract volk and the denunciation of minorities, including Jews.
Overall, he stands as the greatest intellect literature has produced, a mystic and theoretician, as well as a practical journalist. Moreover, the novels contain far more insightful philosophy than most arid books of philosophy,
Along with Leonardo da Vinci, and even more so than Shakespeare, I would go so far as to say that he is the greatest genius that has ever drawn breath. I suspect he would have been distrustful of da Vinci’s cosmopolitanism and veneration of science. Sparks will surely fly if they ever meet!
In search of the my favourite troubadour all roads lead to Flanders, Belgium, then on to France and French Polynesia. There, in the obscure cemetery of Atuona Hiva Oa – alongside the impressionist Paul Gaugin – rests the mortal remains of Jacques Brel.
Aged just forty-seven, Brel had been under a settled expectation of death for some time, as a legendary smoker, and been commuting back and forth to the French mainland to finalise his last album.
Belgiums regularly hail Brel as their greatest fellow citizen in opinion polls. For good reason.
I greatly admire the French chanteuse tradition from Maurice Chevalier to Edith Piaf, and on to Juliette Greco. There’s Serge Gainsbourg too, and the recently deceased Charles Aznavour. Yet I regard Jacque Brel as the culmination of that tradition.
It is the sheer volume of great songs that is most remarkable about Brel, and, unlike Gainsbourg, they translate easily, although they are often traduced.
Thus, Les Moribund (1961) is about the ruminations of a dying man: ‘I want them to dance when it’s time to put me in the hole.’ In the Terry Jack version, however, which sold five million copies this becomes: ‘Goodbye my friend it is time to die when all the birds singing in the sky…. We will have joy, we will have fun, we will have seasons in the sun.’ Westlife even covered it. Yet it is a Brel song translated word-for-word with an identical riff. One can only assume copyright was secured.
David Bowie was a huge fan of Brel, and most notably covered the iconic song Amsterdam (1964), as did Scott Walker who penned an album in English called Walker Sings Brel (1981). Brel was above all a performer. Thus, with sweat dripping and emotional grotesquerie to the fore, nothing in performance art history is quite like his live version of Amsterdam at the Olympia Amsterdam 1964. Ms Abramovich eats your heart out.
Brel did live long enough, through terrible illness, to see worldwide acclaim. Many of his songs were respectfully produced through his involvement in one of the great Broadway musicals. Jacques Brel is alive and well and living in Paris (1968). It is a brilliant and haunting introduction to his songs, and an essential purchase for any music lover.
Brel came from Flanders and chronicles the travails of the Flemish bourgeoisie, often with a full frontal attack, as in Les Flamandes (1958) – equivalent in its power to W. B. Yeats’ great poem September 1913, but also filled with charity, tolerance, and humanism.
The apogee of his love/hate relationship with his homeland is the track Fils deor Sons of (1967), beautifully sung in the Broadway musical by Elly Stone. It is a kind of paean to all God’s children. I consider it one of the greatest songs about human aspiration and failure, jaw-dropping in its simplicity and clarity.
Brel migrated to Paris at the age of twenty-four to work in a cardboard box factory, but was quickly lionised for his musical gifts. There was no fall from grace, as he became the totemic figure in French performance culture, and a national icon both in Belgium and France.
Amsterdam is his most famous, although not in my view, his best song. It’s certainly one of the most disturbing renditions of human debauchery and self-destruction ever written, set in that city of contradictions, lovely and decadent in equal measure. Home to Rembrandt’s Night Watch and The Van Gogh Museum, as well as to the drugs trade and prostitution.
Preferably it should be listened to in tandem with a reading Albert Camus‘ novel The Fall (1956), in which the apostate lawyer confesses his sins to all and sundry in a seedy Amsterdam bar. The lyrics are incandescent. Particularly in French and the song builds to a crescendo.
Finally they drink to the ladies
Who give them their nice bodies
Who give them their virtue
For a golden piece
And when they have well drunk
And pin their nose to the sky
Blowing their nose in the stars
And they piss like I cry
On the unfaithful women
In Amsterdam’s port
In Amsterdam’s port
Many of his songs build in a similar fashion fashion. Tempo is crucial, particularly in my personal favouriteLa valse à mille temps (1959). Here, Brel is ruminating on a park bench about life and love’s failings beside a giant Ferris wheel. Imagine The London Eye or The Riesenrad in Vienna. As the song unfolds it mimics the rotation of the Ferris wheel and gathers pace. Incredible, or incroyable. I defy anyone to listen to it and not consider it as beautifully a conceived a song as has ever been written! It is as great as one of Shakespeare’s Sonnets or Love Minus Zero (1964) by Bob Dylan or Dance Me to The End of Love (1984) by Leonard Cohen. Greater in in fact.
Brel like all troubadours, was a great romantic chronicler and penned an enormous amount of great love songs. Ne Me Quite Pas (1959) is one great hush. Although some of its power is lost in translation, that never stopped Frank Sinatra, Dusty Springfield, Barbra Streisand, Neil Diamond to name but a few recording it in English as If You Go Away.
The English title is in fact deceptive, and conditional on some future whim from the object of desire, whereas ‘do not leave me’ is very much an expression of fear of imminent desertion.
Yet, in my view his greatest song of unrequited love is Madeleine (1962). The Godotesque conceit is incredible, as the protagonist awaits Madeleine, who never arrives, outside a cinema. I believe it influenced Kaurismaki 2023 film Fallen Leaves, and is beautifully sung by Ellie Stone and Mort Shuman in the Broadway production.
Brel’s relationship with Flanders was complicated throughout his career. On the one hand he sang lovingly of his flat country homeland, particularly in the extraordinary love ballad Marieke (1961) about a woman and indeed Flanders, but he also poured scorn on what he perceived to be the parochial nature of the Flemish, much like Flaubert’s dictionary of received ideas (1911) pouring scorn on the French bourgeoisie.
So, consider this interview in which Brel said: ‘We have been conquered by everyone, we speak neither pure French nor Dutch, we are nothing’
Les Flamandes, (1958) is a visceral masterpiece, a ribald and derisive music hall number about dancing Flemish women. Brel was unrepentant about its offensiveness , and on his final 1977 album – when at death’s door – he upped the ante with an even ruder song, Les F…, which accuses the Flemish of being ‘Nazis during the war, and Catholics in between.’
It should be said that some of Scott Walker’s versions, Jackie (Jacky) (1959) and My Death (La Mort) (1965) are richer texturally and in many ways more enjoyable than the Brel versions, but when Walker has to reach for dark humour his Next/Au Savant (1963) does not reach near the mordant and sardonic Brel heights of the version. A song about sexual abuse is also covered by Gavin Friday.
Brel was also an expert in pathos and compassion. Consider the wonderful La Chanson Des Vieux Amants. ‘Of course we’ve had thunderstorms,’ goes the first line. ‘Of course, you took a few lovers,’ And candidly in the second verse, ‘time had to be spent well.’ One is reminded of the great French chanteuse Maurice Chevalier and his old muse in Gigi (1958).
We dined at nine.
Not it was eight.
You were on time.
No, you were late.
Oh yes, I remember it well.
Brel was an incurable romantic and indeed a quixotic figure who staged a French version of the musical Man of La Mancha by Cervantes, translated all the lyrics, directed the production, and played Don Quixote himself. Brel’s version of The Impossible Dream takes the mundane words and stokes up the intensity – not unlike Amsterdam – to the point of madness.
His hopes, as he shuffled off this mortal coil, that his final album would slip out with little fanfare were dashed when it shifted 600,000 copies in its first few days. The generally begrudging French literati welcomed him back in a similar fashion to how they had once welcomed Voltaire before the French Revolution. In both cases death followed shortly thereafter.
Commuting between France and French Polynesia, given the perilous state of his health, was hardly ideal. His final work Brel (1977) unsurprisingly deals with themes of death; he had sung enough about it even before he developed terminal lung cancer,
In JoJo, a reflective and tear-stained tribute to an old friend, features the line: six feet under but you are not dead.
‘Of course there are wars in Ireland,’ he sings in the opening line, following up with everything else that is wrong with the world, ‘but to see a friend cry…’ he offers at the end of each verse, as if unable to finish the sentence himself through emotion.
Well know there are wars going on everywhere, but to see a friend cry, a lover depart, someone who fails to meet you outside the cinema, that is the human condition. The focus is on the particular, not the general. He is ever the humanist.
The songs are so incredible lyrically and musically only Dylan with almost four decades more longevity or arguably Paul McCartney or Cole Porter has written as many great songs in the history of popular music. In my view, he is the greatest troubadour of the 20th century, and the Belgians know it.
Feature Image: Jacques Brel in 1962 by Jack de Nijs for Anefo
There still exists – even today – a yearning, a nostalgia for European solidarity, a solidarity of European culture. Regrettably, solidarity itself no longer exists, except in hearts, in consciences, in the minds of a few great men at the heart of each nation. European consciousness – or what one might call a ‘cultural European awareness’ – had been on the wane for years ever since the awakening of national identity. You could say that patriotism has killed Europe. Joseph Roth, On the End of the World (first published in 1933).
Late last month 28.9% of Austrians voted for the Freedom Party (FPÖ) led by Herbert Kickl, an avowedly anti-migrant, anti-Islamic party, founded in the 1950s by former Nazis. The governing conservative Austrian People’s Party (ÖVP) gained 27.5% lost 20 seats, while its coalition partner, the Greens received 8.2%, losing 10 seats. In third place, the centre-left Social Democratic Party (SPÖ) received 21.1%, marking its worst result ever. In fourth place, the liberal NEOS increased its share to 9.1%.
We can only hope that the conservatives do not enter into a coalition with Kickl’s party as Hindenburg did with Hitler’s Nazi party. Perhaps a Dutch solution will at least dilute the forces of darkness. Kickl was formerly the speech writer of the now-deceased long-time leader of the Freedom Party, Jörg Haider, but Kickl is far less ambiguous in his pronouncements than his former boss.
What’s clear is that the far right is on the rise across Europe, Ireland and the world. My own childhood in Ireland, as a half-Austrian, not unlike Hugo Hamilton’s experience as recounted in his autobiography The Speckled People, involved casual racism and bullying on account of my background.
At one level Austria is among the most cultured of nations. So, I defend it. Ma Vlast as Smetana said about Czech Bohemia, albeit a defensive posture often leads to a failure in understanding. Why Kickl? What is the Austrian Mind that has created this?
Mozart family, c. 1780 (della Croce); the portrait on the wall is of Mozart’s mother.
Mozart of Salzburg
My family, who I am close to, hail from Salzburg, home of the Fespiele. Mozart was, of course, born in Salzburg where a little museum glorifies his brief tenure on Earth. Mozart’s music combines lyricism, frivolity and profundity in equal parts. What it points to in the human condition is not just chocolate-box fripperies, or the texture of lightness that is Eine Kleine Nachtmusik,but the darkness therein. Darkness threads through the Austrian mind, juxtaposed with light.
Thus, Don Giovanni is about the destructive powers of rakish satanism, also evident in Stefan Zweig’s arguably best book beautifully filmed by Max Ophuls’ Letters from an Unknown Women.
In Mozart also the incomparable Magic Flute splendidly rendered into film by IngmarBergman, is in effect about the dubious justification of freemasonry to which Mozart belonged; and also, a cri de coeur, in praise of enlightened and benevolent monarchism against the vectors of state and, in particular, church authoritarianism. This assertion of a wise moderation against extremism resonates today.
The great enfant terrible of Austrian letters and its greatest post-war writer Thomas Bernhard was gloriously insulting about Austria. His masterpiece Woodcutters (1984) is about a man in a chair at a party sipping Champagne. Letting fly at Austrian bourgeois hypocrisy, he says:
Everything about you, everything you are, has always been pretence, never genuine, never real.
In his will, Bernhard ordered that none of his works should be performed in Austria. This has been deliberately avoided. All cultures have their tropes.
Culturally, Austrians, along with the Irish and British, have far too close a relationship with kitsch. The Merry Widowlight operetta, like a jaded ritual, is still performed in the Lehrer Theatre in Bad Ischl and elsewhere. The Blue Danube is not unlike a classic Britpop song.
The great Herman Brochwas fascinated by kitsch, linking it correctly to a decline in values:
The maker of kitsch does not create inferior art, he is not an incompetent or a bungler, he cannot be evaluated by aesthetic standards; rather, he is ethically depraved, a criminal willing radical evil. And since it is radical evil that is manifest here, evil per se, forming the absolute negative pole of every value-system, kitsch will always be evil, not just kitsch in art, but kitsch in every value-system that is not an imitation system.”
In some respects, the triumph of kitsch paves the way for Nazism, as Broch and indeed Robert Musil have both argued. Radical evil and bad art is evident in our age too. This is a kind of camp fascism which Susan Sontag also identified.
Beethoven was of course German, but lived and died in Vienna. His darkness is a counterpart to Mozart’s light. His deafness influences the isolated pessimism of the later atonal dark sonatas, and are close to the finality of expression in musical terms that Beckett created in language.
His final string quartet is integral to Dr Faustus by Thomas Mann, where the satanic composer, modelled on Heidegger, sells his soul to the devil.
I have found that it must not be. The good and the noble, what they call the human, even though it is good and noble, what men have fought for, have stormed citadels for, and in their moment of fulfilment, have jubilant proclaimed it is not to be. It is not to be, it will be taken back. I will take it back.
Mann, the great German conservative, had the moral integrity to decamp to the U.S. and to Switzerland, buta crucial point to appreciate is that conservatism is not all bad if it conserves the good and the ethical too. So, the Christian Democrats in Austria have a stark choice, whether to embrace satanism or not.
Sleepwalkers
The rise of Nazism is also anticipated brilliantly in Broch’s The Sleepwalkers, one of the great novels of Austrian heritage. In the character of Hugenau, a man solely motivated by profit – homo economicus to use the term favoured by the nefarious law and economics movement in Chicago – we have a real sense in 1918 of a brutalised generation containing the seeds of fascism. The book culminates in the murder of a journalist and the rape of his wife.
This is akin to neoliberal Europe today where meaningful journalism has been effectively killed and defiled, as state-sponsored criminals launch hatred at ‘the other.’ Off with their heads, or to Rwanda, or now Albania.
The legendary Austrian filmmaker Michael Haneke in The White Ribbon, based in pre-war Germany at the turn of the twentieth, demonstrated how damage had been done to a whole generation by a cruel form of authoritarianism. Today, social media has augmented the problem of semi-literacy. Strange fruit, as Billie Holiday would say, is ready for demonisation. In Ireland the neoliberal governing parties have generated the social conditions for riots and a new decadence.
As for Italy, the land of Fellini and Da Vinci, where the far-right mayor of Monfalcone near Joycean Trieste has banned cricket as she does not like Bangladeshi people in her town; they only play cricket she says and contribute nothing. The fact that such football clubs as AC Milan was originally a cricket club seems lost on her. Mayor Anna Maria Casing, elected on an anti-immigration platform is now an MEP. Her far-right colleague, prime minister Meloni prosecuted Roberto Saviano the legendary journalist for calling her a bastard over her immigration policies.
So, Austria is not alone in its infamy.
The darkly pessimistic Herman Broch shows how the far right and populism go hand-in-hand with hatred:
It is always he, unfortunate wretch, who assumes the role of executioner in the process of value-disintegration, and on the day when the trumpets of judgment sound it is the man released from all values who becomes the executioner of a world that has pronounced its own sentence.
The Rathaus (City Hall), the seat of the local government.
Golden Age
The golden age of Vienna ended peremptorily with the dismembering of the Austrian empire, after the assassination of Archduke Ferdinand at Sarajevo sparked the inferno of World War I, when leaders sleepwalked into war. This is the state of somnambulism that Broch also identified evident in Musil.
The word Kaakinen is Broch’s playful word for Vienna which, in effectively means shit. Thus, he writes in The Man Without Qualities:
Stupidity is active in every direction and can dress up in all the clothes of truth. Truth, on the other hand, has for every occasion only one dress and one path, and is always at a disadvantage.
In Zweig’s retroactive memoir The World of Yesterday there are references to Freud and Herzl (one of the founders of Zionism), among the titanic intellectual figures of pre-war Vienna. These are curiously name-dropped like the celebs of our time, but in a curious state of derealisation of how history is closing in. Freud, who was Austrian, died as an emigre from fascism in the U.K..
Whether the concept of hysteria is sexual or not, no doubt this is a hysterical age where all sorts of fantasises are being sublimated into nefarious activities and agendas – and indeed where persecution delusions are omnipresent. This leads to the scapegoating of immigrants.
Ludwig Wittgenstein, 1930.
The Sound of Silence
Ludwig Wittgenstein is central to our age of distortion and manipulative language. The fundamental achievement of his Tractatus is a recognition of the limitations of language. It can only show and represent, he argues, and, within limitations, clarify. Thus, language is context-specific, self-limiting and denuded of ethical and moral context.
Reading Wittgenstein, like reading Hemingway, Camus, and Beckett, clarifies how language should be used clearly, and is most useful for everyday life, but not ethics. The final line of the Tractatus has acquired a mythical status: ‘What we cannot speak about we must pass over in silence.’
Silence is important, but when we can speak let us speak out ethically. A recent Austrian Nobel laureate is Peter Handke is a great writer, though not in Thomas Bernhard’s league. Handke’s flirtation with the Serbian cause, however well-intentioned and misconstrued, leave a degree of doubt, given the Austrian mindset, but there is a rich warm humanism in his work.
Handke argues you must create silence or, rather, the effect of silence, through words.A Sorrow Beyond Dreams his recent recollections of his mother’s suicide is jaw-dropping, and among the best books published in the last ten years. So let us create the silence of words, before it is too late.
Feature Image ‘Avenue in the park of Schloss Kammer’ produced by Austrian artist Gustav Klimt in 1912 whilst he was living near the village of Unterach on the southern shore of lake Attersee in Austria.
The remains of unquestionably the greatest intellect of the nineteenth century, Karl Marx, are buried in Highgate Cemetery in London. I recently tossed a red rose on the site. I doubt whether Judge Gerard Hogan, to whom I have addressed previous articles in this series, or any other legal positivist, would do likewise.
While positivists often engage, though disagree, with rights-based -thinkers such as Ronald Dworkin, most exhibit a level of incomprehension, and often outright hostility towards certain forms of Radical Jurisprudence. No doubt the often unclearly expressed ideas of late Marxism, structuralism and post structuralism often are a factor, but that is only a partial excuse.
Noam Chomsky – himself a linguistic positivist – once made a comment to the same effect on these authors, exempting Michel Foucault. He had developed a rational understanding of Foucault, but none for example of Derrida, who many including myself regard as largely intellectually fraudulent. Indeed, many Cambridge University philosophers objected to the conferring of an honorary degree on him, although I believe there is an element of truth to his babbling on relative truth or foresight.
This plan of Jeremy Bentham’s panopticon prison was drawn by Willey Reveley in 1791.
Panopticon
It is, nonetheless, easy to see why, as far as my harsh assessment of post-structuralism Foucault is exempted. Foucault makes very relevant contributions to Jurisprudence and the practice of law.
First, the transplantation of Jeremy Bentham’s idea of the panopticon – the all-seeing surveillance prison such as Kilmainham in Dublin – is in Foucault’s view a depiction of modern society, where a uniform doctrine is enforced in schools, law courts and hospitals, leading to blind conformity.
Foucault presaged the age of Surveillance Capitalismand 24-hour data surveillance in Ireland, achieved in camera in the Quirke Case through the representations of the Minister for Justice Helen McEntee. Thus, we have a global panopticon wherein the value of privacy and freedom is thrown to the wolves.
Now our judges aside from Hogan, most recently in the Dwyer Case restricting the privacy right, ignore ECHR and EU law. This undermines an ideal of liberty, at least as old as J.S. Mill in modern times, and in fact going back to the Greeks. So, Foucault’s insight is not about postmodernism. It translates into the destruction of rights under Article 3 of the Irish Constitution and 8 and 5 of the Convention.
The second of Foucault’s contribution is his book on madness in the age of reason. The fundamental tenet is that the Enlightenment / Age of Reason involved the necessity, intellectually and then institutionally, to confine the unreasoned – those who were called mad – into asylums. Well, who is mad and who is clinically insane?
The recent US Democrat convention, with the rather wonderful Mr Walz speaking from the heart on middle-class US conservatism about banning books and depriving choice stands against that Twitter conversation between Musk and Trump.
The problem of reason and madness is also clear earlier in Ken Kesey’s masterpieces ‘One Flew Over The Cuckoo’s Nest’ (1962). What happens when the lunatics have taken over the asylum and a dissident voice says no? What of when the man or woman of reason, the pursuer of nuance and grey, the boy who cries wolf, the creature of the Enlightenment is locked up by those who are in fact self-interestedly insane.
Foucault was apparently not on the UCD Jurisprudence syllabus in the late 1970s. A short journey to the Arts block to encounter Richard Kearney’s expertise in Continental Philosophy would have been beneficial.
Marx and Engels in the printing house of the Neue Rheinische Zeitung. E. Capiro, 1895.
The Crucial Figures
The crucial figures of radical jurisprudence are not the structuralist, even Foucault, but the great Marxist theoreticians. For Marx law was a mirage, an ideology upholding the interests of the bourgeoisie, He considered it a mere superstructure determined by the economic base. Law, he observed, served the interests of the ruling class.
Thus, in Marxist terms Hogan’s analysis of Kelsen is a form of intellectual masking or ideology justifying a form of state authoritarianism, which Marx would surely have interpreted precisely as the Populism of the petit bourgeoisie. No judicial deferral should be granted to the popular sovereignty of the mob.
Marx though is not consistent about law. He argues that in the properly ordered Communist society there would be no need for laws, as we would spontaneously co-operate in our Communist Nirvana. But at times he concedes, inconsistently, that law is not always bad, and a close textual analysis of his views on property rights, and the freeing up of the alienation of estates to facilitate greater capital, shows that sometimes the superstructure can influence the base, and thus influence economic relations.
So, what of Ireland controlled by a landlord class achieving nothing and facilitating careers going nowhere except to Microsoft and criminal banks, or the legal service class who act like vultures preying on the vulnerable on behalf of the powerful?
The legal realist Oliver Wendell Holmes in his famous rebuke to unregulated free market economics in Lochner (1905) said the Fourth Amendment does not enact Mr Herbert Spencer’s social statics, and nor should the Irish Supreme Court enforce the interests of the commercial fat cats of Aran Square or elsewhere.
Many Marxists, such as Lenin, saw the necessity for rules in a never-ending interregnum on the way to a Communist Utopia, which is never to be achieved. More pragmatically, the fundamental question for any judge which the Marxists pose is: whose interests do the rules serve?
The Marxists influenced the critical legal studies movement, which to some extent educated me, adopting the radical indeterminacy thesis, an idea borrowed at one level from the legal realists. They argue that given the plasticity and malleability of rules, legal outcome can be very unpredictable and in fact subjective.
There really is no such thing as a ‘plain fact’ or literal interpretation of almost any legal text. To avoid nihilism we should invoke moral principle as a corrective.
Alienation
The term alienation coined by Marx more generally to describe exploitation of workers serves as a warning as to how our government is destroying both the working and middle classes,
Subsequent Marxist have been more approving of law. The legendary Antonio Gramsci, while imprisoned by Mussolini, adopted the phrase ‘hegemony’ to suggests as necessary a form of co-operation in law, politics and culture between the proletariat and the bourgeoisie. Now this coalition argument suggests law can be used as an instrument of social change. That depends on a desire to change for the good.
One wonders whether the new, petite bourgeoisie-aligned Keir Starmer government in the U.K. should be a source of optimism or seen as a false dawn? More taxes on the wealthy, or further savage austerity for the poor?
The Rule of Law is a central concept in jurisprudence, though hotly contested, and Marx aside, it has dominated the thinking of some of the main Marxists thinkers of recent vintage.
In his codicil to Whigs and Hunters (1975), E.P. Thompsonexpressed a view on the Rule of Law as an unqualified good, which at times could check arbitrary authority. That of course assumes the Rule of Law exists in an ethical polity. It is not that evident in Ireland today as core principles are violated or improperly implemented.
Thus, the independence of the judiciary is not obvious in Ireland, the use of in camera proceedings, akin to the promulgation of secret laws, is a cardinal violation of the notion that justice must be carried out in public. We also find an apparent tolerance of police corruption, the abandonment of substantive rather than formal equality, and indeed the abandonment of constitutional rights.
Thompsons argument is premised on the idea that the judges are willing to enforce the rule of law, often with the effect of unsettling vested interests, as in the recent, painfully prolonged, Assange case. Irish judges are more likely to do the opposite.
Jürgen Habermas
Habermas
Jürgen Habermas is, as ever, a crucial contemporary thinker, and, with all due respect to Gerard Hogan’s veneration of Kelsen, he is not just the world’s leading intellectual figure but the towering German intellect along with Thomas Mann and Kafka of the 20th century.
Since Habermas abandoned the Frankfurt school, and thus post-structuralism, he has become, for over fifty years, one of the great proponents of the Rule of Law and legalism. He stresses the importance for judges not to subvert rights and parliamentary laws protecting civil liberties including the right to protest, viewing civil disobedience as central to revitalizing democracy.
In contrast, the knee jerk reaction in Ireland and the UK has been to give more powers to the police to regulate dissent.
Habermas’ other idea of communicative action, borrowed at one level incidentally from the arch positivist Austin, is the elaboration of the idea of ideal speech. His ideal for the vindication of speech rights is the eighteenth century salon. The ideas of communicative action in legal and judicial terms blends into the ideas audi alterum partem (‘listen to the other side’), and the obligation not to be either subjectively or objectively biased.
Ideology, a term adopted by Marx, has been reinterpreted by Slavoj Žižek, drawing on another Marxist in Lacan, as ideological misidentification. In both instances, and applied to law, there is the sense that the bureaucratic class are engaged in false consciousness or deceptive ideas.
Lon L. Fuller, who is not a Marxist but a natural lawyer, argued that once a legal system has not a tinsel of legality left, but enforces barbarism, it is no longer a legal system.
To round the series off, a Marxist would fully understand the rage of Populism, but not necessarily approve of it. Of course pure Communist societies do not work, but nor does pure neo-liberalism. Indeed, Ireland is not working except for the landlord class.
What does work legally ethically and morally is a social democratic Just Society advocated by the master John Rawls. What does work is Sweden, Denmark, Norway and much of northern Europe, where people are not in Marxist terms commodified and viewed as product, but in the moral Kantian sense things in themselves.
John Rawls intellectually speaking would never have existed but for Karl Marx and a difficult thing for a legal positivist practitioner to realise is that Marx is in fact the greatest of all legal, political and economic philosophers. This is not to say he is entirely correct or a model to be followed in overall societal regulation, but a useful corrective to interpret laws and asses whose interest they serve and, if necessary, to bend rules to achieve socially just outcomes.
Dworkin in fact argued that the South African judges during Apartheid should potentially have lied about the content of a racist law. I also agree or rather at the very least that they should have interpreted it to bring about socially just outcomes.
Marxism at its best focuses on civil and in particular social and economic rights, and the judiciary responsibility to enforce them into the law and the Constitution, to the extent that this is consistent with the Rule of Law.
In the first part of this series, London-based barrister, who taught Jurisprudence for sixteen years in the Honorable Society of the King’s Inns in Dublin, David Langwallner takes issue with Irish Supreme Court Justice Gerard Hogan devotion to Legal Positivism, instead arguing morality and politics should inform the law. He elaborates further on that debate in this article.
This piece details what I believe is absent in the form of Legal Positivismthat has been advocated by Supreme Court Judge Gerard Hogan. Indeed, there is a wider blind spot among the Irish legal establishment on whether jurisprudence should go beyond Legal Positivism, into the territory of Natural Law.
A few years ago this debate might have been confined to the classroom and seminar, but it now assumes central importance.
There is currently a crisis of legitimacy in the Rule of Law worldwide, unprecedented since the 1930s, and Ireland is not exempt. In my view Positivistic limitations on the subject is a sign of intellectual infantilism – an unnecessary curtailment of the boundaries of law, and what it means. Worse still, Legal Positivism contributes to a false assurance of just outcomes.
The Nuremberg Trials.
The Fundamental Question of Jurisprudence
Let us thus address the fundamental question of jurisprudence: what law is, and what that matters in its practice?
For a Positivist, the essence of law is legal fact, if it stems from an authoritative source often referred to as the Sovereign. Or let us call it, as Hans Kelsen and Hogan do the grundnorm (‘basic norm’). Then the law is divided into rules conferring powers on officials, within a given system, to apply them. This process occurs at a remove from politics or morality.
H. L. A. Hart, the other leading Positivist with Kelsen, calls these rules either primary or duty imposing rules, or secondary or power conferring rules, which often rely on enforcement by adjudication by tribunals or courts, but not, it seems, by interpretation. That is the initial fallacy.
Thus, according to Legal Positivism the job of any official is to apply rules literally. Giving, what Ronald Dworkin called, ‘plain facts their plain meaning.’
Yet, very little is ever plain, and as the leading jurist of the 20th century, not Kelsen but Dworkin, maintained law is a question of the interpretation, not the application, of plain facts. It is also about principle not authority. And the texture of law is slippery and often as unclear as mud. Hence legitimate legal interpretation is a matter of law, not purely political philosophy. That is the crucial point and the one Hardiman and Hogan, among other UCD Positivists, fail to understand.
Consider this in a different context. Imagine a witness says someone’s hair is dark, the question becomes how dark on a scale of 1-100, and was there any grey in the darkness? There is invariably a lack of clarity on any matter, and even the arch-Positivist Hart conceded an open texture or fuzziness even to statutory rules.
That concession by Hart – as Dworkin correctly maintains – undermines his whole theory. For Hart, where the rule is fuzzy, he suggests a judge use his discretion. Dworkin correctly queries whether discretion per se should form any part of a legal dispensation.
In fact, given that many rules have an open texture – in that they are capable of various interpretations – the reliance on an untrammelled or open-ended discretion, as Dworkin maintains, undermines Hart’s conception of Legal Positivism. The natural lawyer John Finnis also correctly points out, in parenthesis, a weakness to Hart’s internal point of view, crucial to his Positivist agenda. To save Legal Positivism from morality Finnis points out, by using normative language such as ‘ought’ or ‘should’ Hart is conceding a moral component to law.
Contrary to Hogan’s position on legal interpretation, Dworkin contended that it must involve political and moral interpretation, and not be an exercise in literalism or strict constructionism.
To make sense of law as a corpus and not rely on discretion per se law legal interpretation must be an exercise in principled interpretation. Only then can it create a seamless whole that is not a web of deceit, or draconian rules, but one of justice.
Adolf Eichmann
Slow Train
The abandonment of principle and constitutional rights is a slow train to the sort of cognitive dissonance embodied in the likes of Adolf Eichman, when he argued he was only doing his job. This is the divorce of officialdom from morality.
Such issues led to the famous Hart-Fuller Debate on the relationship between law and morality and to a consideration of retroactive laws. Fuller in effect maintained we owe no obedience to laws without a tinsel of legality. Even Kelsen applied retroactivity exceptionally in the case of the Nazis.
Dworkins progenitor and mentor is John Rawls, who is decidedly back in fashion in the academic community. Not that his ideas have ever gone away entirely, but his critique of neoliberalism and his conception of a just society seems more pertinent than ever,
Daniel Chandler in his recent bookFree and Equal: What Would a Fair Society Look Like? (2023) argues that there is a broad approval among academics around the ideas of the maximisation of liberties; a measure of discrimination in favour of the disadvantaged; and an element of putting money aside for future generations to meet the economic and environmental devastation of neoliberalism. To our power brokers, however, these principles have little or no significance. Seemingly, as Chandler contends, the more Rawls gains traction in the academic community, the less his ideas are implemented by our rulers.
Of course, Rawls is a political philosopher and though he does address law, he does not do so with the precision of Dworkin.
For Dworkin the answer is very clear: our judiciary have a moral and principled obligation to interpret laws in a socially just way to protect the innocent, the disempowered, the accused and sanction the government when required. This also includes the moral obligation not to defer to a Separation of Powers, but to declare a law unconstitutional when it is called for. It also includes a non-textualist approach to read rights into the constitution as a living instrument, to protect the rights of the citizen, and non-citizen.
In Ireland the lure of Legal Positivism and the abandonment of the wisdom of Rawls and Dworkin among the judiciary has led to the non-enforcement of social and economic rights. This has contributed to a housing and homelessness crisis, tearing apart the very fabric of our society and fuelling the rise of the far right.
The judiciary could have easily followed Canadian and South Africa as well as Indian Jurisprudence, which either give vitality to the Right to Life contained in Article 2 of the Constitution, by including the quality of that life. They might have also revived Article 45, and thus the social contract.
Ensnared by banking interests, debt, and agency capture, the courts have failed to intervene. These decisions and non-decisions are unforgiveable, immoral, and even borderline criminal.
Further, In Rawlsian terms They have not maximised rights over absurd limitations on public and common good considerations, thus systematically destroying due processand privacy rights, ignoring or sidelining EU and ECHR law along the way. They have given ever more power to our police forces, standing idly by as 24-Hour Surveillance takes place, with more special courts to come, amidst an unspecified emergency.
The Four Courts, Dublin.
Long Dead Values
Our gatekeepers have deferred to long dead values. They have not utilised the constitution progressively, and failed to protect non-nationals adequately. I suspect they will curtail freedom of speech if thehate speech bill passes.
Since Adrian Hardiman, and indeed before, they have been utterly useless in upholding the constitution.
Part of the Positivist agenda is to focus on Positivistic realism. Realism, though useful in some respects as an analysis of trial practice and what courts do, justifies cynicism and above all Populism. If there is one idea that captures the leading realists Karl Llewellyn’s conception of policy, it is the will of the majority, or what people want. What Hogan terms the grundnorm of popular sovereignty.
The problem with deferring to Populism in our present Dark Age is that we are dealing with agency capture of the media, excessive blind sheep obedience, alt-right mob rule and the enforcement of it through legislation, such as anti-immigrant measures or mass surveillance.
It is in fact important for judges to be, as Dworkin put it, philosopher monarchs, in the sense of vindicating rights against tyranny. Thus, gatekeepers must protect rights against tyranny and realise that, as Hannah Arendt put it, we should have the right to have rights.
In Ireland the judiciary defer to Kesean popular sovereignty and judicial restraint. It is correct to see them as accomplices to evil. Even Hogan, our finest judge, risks selling his soul to the devil.
Justitia in the Superior Courts Building in Budapest, Hungary.
Are Rules Important?
The other fundamental question is whether rules are really that important. The realist scholar Roscoe Pound called them merely pretty playthings. This is the view, commonly held among realists, that a judge reaches the subjective conclusion, dictated by policy considerations and then makes the rules fit the facts. In short, the rule is an intellectual justification of a conclusion. This is a view I have some sympathy with, but it again demonstrates the obsolescence of black letter law.
Crucially, Dworkin gives rules or plain fact more weight, and thus does not undermine legality but argues that a rule or even the plain fact of a rule is subordinate to the interpretation of principle. Thus, the judge is obliged to attempt to achieve the best creative and constructive sense of the law as a matter of principle, where principles have dimensions of weight and importance, and rules do not.
The important point comes where there is a conflict between a rule and a principle. Here the principle, whether legal or moral, prevails.
Dworkin points to the Lord Atkins Neighbour principle in the foundational case in Tort Law Donoghue v Stevenson (1932), to the effect that constitutional values are principles in the law. Indeed, a crucial application of principle is where a law is declared unconstitutional. That is when a Positive law struck down by a principle. Or when the principles of the ECHR are enforced, which we rarely see, rendering our constitution a nudum pactum – a promise that is not legally enforceable.
In this respect by its embrasure of literalism and historicism in judicial interpretation, Legal Positivism negates the spirit of the law, and deems crucial issues non justiciable. It does not protect matters of principle and rights, and fails to develop the constitution as a living instrument to adapt to changing circumstances.
The negation of this development of constitutional rights has led in America to the justification of handguns, in that they were commonly in use at the time of the American Revolution by the historicist Scalia, and the over-ruling of Roe Versus Wade, as inter alia in a specific context it sought to graft a non-literal privacy right into the constitution of the US.
Dworkin’s principled interpretation, unlike Legal Positivism, takes rights seriously and takes issue with legal realist premises, based on majoritarianism, that rights are subservient to policy consideration.
This article is a response to Supreme Court Justice Gerard Hogan’sAnnual Hale Lecture in Trinity College, Dublin in November 2023 on the on the topic of: ‘Grundnormen in UK and Irish Constitutional Law,’ and I thank him for sending it to me.
The grundnormen is a creation of the legendary Austrian jurist Hans Kelsen. He is viewed by many as the greatest figure in Jurisprudence of the 20th Century. For his own part, in the mould of Justices Niall McCarthy, Adrian Hardiman and Declan Costello, Gerard Hogan is, in my view, our only current top class Irish judge, and a man for whom I have great respect.
However, Hogan’s paper, although a brilliant piece of work, is profoundly unsettling not as such in what it is right about, but in terms of what it is wrong about, largely by omission or occlusion, i.e. what it does not say.
He frankly concedes that the UCD lectures he received in jurisprudence failed to equip him with an understanding of the relevance of John Rawles or even The Natural Lawyer, John Finnis, nor does he reference radical jurisprudence, or indeed the éminence grise of 20th century legal philosophy, Ronald Dworkin. Thus, Hogan emerges as an arch positivist – as of course was Kelsen – a literalist and strict constructionist. It is fair to describe him as a black letter lawyer.
Kelsen was the purest and most consistent of the positivists in emphasising the precise distinction between law and the domains of politics and morality, with one significant aberration on which more later. It is called a pure theory of law, Kelsen argued, because it only describes the law and attempts to eliminate from the object of this description everything that is not strictly law: Its aim is to free the science of law from alien elements. This is the methodological basis of the theory.
Hans Kelsen 1881-1973.
Kelsen: The Pure Theory of Law
It is perhaps unsurprising that one of Hogan’s instructors in jurisprudence while in UCD, Professor John Kelly, in a superb posthumous A Short History of Legal Theory (Oxford University Press,1992), expresses equally bafflement with post-positivism. It is merely an afterthought in that book. Well that is UCD.
Likewise, consider Adrian Hardiman’s apparent chastisement of John Rawls in his judgment in the seminal 1991 Sinnott case for viewing political philosophy as a branch of jurisprudence:
[t]heorists of this view consider that they can provide a body of principles which can be interpreted and applied by courts, to the virtual exclusion or marginalisation of the political process…I[f] judges were to become involved in such an enterprise, designing the details of policy in individual cases or in general, and ranking some areas of policy in priority to others, they would step beyond their appointed role.
Also, the reference to Lord Denning’s subtle dismissal of jurisprudence at the outset of Hogan’s paper is at one level a revelation of the standard wisdom of practising lawyers that only positivistic jurisprudence is relevant to court cases.
When the U.K. Supreme Court overturned Boris Johnson attempt to suspend parliamentary scrutiny by proroguing it, Lord Pannick KC, the advocate in the case, gave a most revealing and rare interview after the event. In a sense Hogan’s argument is about where they stretched matters too far. I disagree.
The problem with Hogan/Kelsen, and positivism more broadly, is, fundamentally, the cleavage between law and morality and/or law and politics, which are treated as if they are separate domains and not relevant to the subject of jurisprudence.
Hogan also purports not to understand the Natural Lawyer. When it comes to John Finnis I agree. Finnis argues unconvincingly that the law should reflect self-evident goods such as marriage involving sexual congress, which has as its aim the production of children. In short sex for the sake of sex, not for conception, is not good, because it does not conform to the common good of friendship, which is intrinsic to heterosexual congress within marriage, or the good of parenthood.
Jeremy Bentham like many positivists regarded natural law as ‘nonsense upon stilts;’ or as the other positivist John Austin suggested: if you invoke in a court room that an act is contrary to natural law a judge will indicate the inconclusiveness of your reasoning by hanging you. Many are also sceptical, as they ought to be, of inserting the values of The Iona Institute into the Irish Constitution.
But that does not answer the question of morality or politics as an aspect of jurisprudence by a process of legitimate legal interpretation. This is the interpretation of texts in the sense of the grand style judge, mentioned by Karl Llewellyn, who defers not just to literalism, but also to policy and principle.
Thus, Hogan effectively dismisses John Rawls and Ronald Dworkin, Marx’s Grundrisse and the legal realist perspective on policy from legal interpretation. Hogan also falsely invokes Oliver Wendell Holmes as a positivist. He was in fact the founder of legal realism – the forerunner to Llewellyn – who said, ‘The prophecies of what the courts mean in fact are what I mean by the law.’
It is, however, brave of Hogan to attempt to define the mystical grundnorm. In Ireland it can be interpreted as the Constitution, based on popular sovereignty, or parliamentary sovereignty in the UK. But at its most abstract level the grundnorm is that which is responsible for the historically first constitution, in Kelsen’s own words.
So, why does that create problems? First, and not least, the concept of original intent and the intentions of the Founding Fathers, is intrinsic to US jurisprudence, especially through the likes of Amy Coney Barrett. This involves a deference to long dead people or long dead intentions in different historical circumstances, an approach which Ronald Dworkin has rightly criticised.
Kelsen, like indeed Hogan, was in an extracurricular sense far from apolitical. He was a Jewish intellectual and supporter of Weimar Germany. However, he believed, as Hogan does, in the essential goodness of the state. Although, in fairness Hogan has sagely warned about the denudation of due process by the Irish judiciary. In my opinion Kelsen was, and Hogan is, over-wedded to the view that states have duties to allow rights, but only on its conditional fiat. I cannot accept that at face value for it assumes the state apparatus in its present incarnation protects rights, which in the case of Ireland it clearly not the case.
It assumes the Irish state has a tinsel of legality. Yet with our corrupt police force, dysfunctional justice department, populist leadership, and compliant judges we are entering a period of anarchy I fear.
The Nuremberg Trials.
Nuremberg Trials
Curiously, Hogan does not mention Keisen’s famous moral detour, where he contorted positivism to justify the jurisdiction of the Nuremberg War Crimes Tribunal. Although Kelsen fundamentally disagreed with the legal basis for the assumption of authority and the way in which individual responsibility was not more differentiated, he defended the Nuremberg Trials. Contorting the principle of retroactivity, he argued the Nazis knew at the time what they were doing was immoral and not innocent. Thus, he created an exception to retroactivity, which is a cardinal violation of positivism, and indeed that amorphous notion, the Rule of Law; for which he has been heavily criticised by other positivists such as Joseph Raz.
Hogan quotes another positivist, Jonathan Sumption at length in dissent at the prorogation of parliament case around the necessity to defer to parliament and the Rule of Law, or ‘the people’ as in Ireland. This should apply only if parliament is entitled to deference, which it is not in my view in Ireland, and only marginally so in the UK.
Judicial review should protect against executive action or ouster clauses removing the jurisdiction of the courts, as in the UK. The Irish courts do not apply judicial review with rigour, and certainly not in a fashion similar to the mandatory orders in South African or India to enforce shelter, housing and health care rights. They also defer to the notional expertise of immigration tribunals and police decisions.
Hogan has previously referenced the obliteration of due process in Ireland, and indeed the constitutional dispensation has provided scant support for those whose privacy rights have been violated.
In my view, the most important book of political philosophy since Karl Marx’s Grundrisse is John Rawls’ A Theory of Justice (Harvard University Press, 1971).
The Rawlsian approach is to pose a question: where people are placed behind a veil of ignorance wherein they cannot know what their personal circumstances will be, how would they chose to order their society?
He suggests that most people would choose the maximum number of liberties, as they would not enjoy living in a society where civil liberties are not adequately protected. Secondly, he argues that most would choose some measure of wealth edistribution in favour of the disadvantaged.
If you were to be born a sub-Saharan Africa, or Ireland for that matter, you would surely want some measure of social protection. This principle is despised by neoliberals, and is central to the arguments in favour of housing rights, health care rights, food rights and a civilised society.
Thirdly, Rawls argues for equality of opportunity and the elimination of self-advancement based on birth, family ties or social position.
Rawls adds an additional idea, The Just Savings Principle, wherein we cannot denude the Earth for future generations. However, Amartya Sen, in The Idea of Justice (Harvard University Press, 2011) argues that Rawls fails to address the reality that the achievement of a Rawlsian society is resource dependent. Clearly, we need to build a just society based on our capacities and needs.
Ireland is among the richest countries in Europe, yet successive governments have permitted rampant homelessness and moveable refugee shelters. Surely these ongoing violations require mandatory orders?
Codicil
As a codicil, Hogan references the Irish Constitution, and has written the definitive text on the subject, but at this stage all that wonderful analysis seems to amount to a Tristam Shandyesque cock-and-bull story. The problem is positivism: positivism in an age of draconian laws; positivism in a crypto-fascist age.
Thus, when Hogan suggests popular sovereignty as a grundnorm, he should look squarely at the Gorgon’s Head and the rampant Populism that neoliberal policies have produced.
Populism is not an acceptable juridical dispensation when all civility is lost, as in fact Sumption hitherto argued. The law becomes, as the jurist Eugen Ehrlich argued, in a criticism of Kelsen, a mask for brute force. We are right because we are powerful: macht geht vor recht as Bismarck put it.
The fundamental questions are whether the gatekeepers, including the judges, are really aware of the social realities, and are they attempting to achieve a just and decent society. Gerard Hogan should bone up on Rawls, Dworkin, Legal Realism and even Marx’s Grundrisse, in my view a far more convincing abstract analysis of the role of law in society than Kelsen’s Grundnorm.
