Cassandra Voices

Author: David Langwallner

  • Weighing up Ireland’s Hate Crime Law

    The new so-called Hate Crime Bill [Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022] in Ireland has generated quite a furore, including outright condemnation by Elon Musk, who described the measure as a “Massive attack on freedom of speech.”

    It has also been branded “insane” by Donald Trump Junior, which was used as a distorted form of justification for the law by Minister Simon Harris. However, criticism has also come from Paul Murphy of People Before Profit from the opposite end of the political spectrum to the Trump family. There has also been criticism from human rights bodies.

    The crucial provisions are Section 7 and Section 8.

    Protected Characteristics

    Section 7 is the mechanism by which offences against those of protected characteristics can be criminalised. At one level it is an admirable measure. Indeed, I have represented people with disabilities, who are one of the categories included.

    More controversially, transgenderism is one of the protected categories. It was surely not hate speech for the feminist author Germaine Greer to say that a man who becomes a woman can never really understand what it is to be a woman.

    In my view it was a serious violation of fair comment to no platform Greer for the comments – no matter whether one agrees with her ideas or not. To criminalise such a statement would be a return to the Dark Ages of the Papal Index.

    One hopes that a statement such as that made by Greer would be protected as legitimate political or cultural criticism, which are important delimiters and qualifiers contained in the Act, but the defence would arise only if the matter actually came to Court. The existence of a criminal charge might still be bandied about to damage the reputation of an individual or publisher. Malicious prosecutions are not unheard of in the Emerald Isle.

    Perhaps what really stoked the ire was Greer also stating “because he does not have a smelly vagina”. This brings us to the subject of ridicule. Ronald Dworkin wrote an article on the right to ridicule inspired by the Danish Cartoons incident.

    ridicule is a distinct kind of expression: its substance cannot be repackaged in a less offensive rhetorical form without expressing something very different from what was intended….

    So, in a democracy no one, however powerful or important, enjoys a right not to be insulted or offended. Christopher Hitchens and the English judge Stephan Sedley have also remarked that any freedom to speak inoffensively is worthless.

    In more carefree times, political opponents Gore Vidal and William F. Buckley came together as pundits at the behest of a failing network for the 1968 Democratic and Republican Party Conventions. This has recently been documented in a film called ‘Best of Enemies’, which is now a West End play by the same name.

    William F. Buckley was the archangel of neo-conservatism, while Gore Vidal was an embodiment of what now seems an excessive liberalism. They deliberated on a state of siege, with riots in Chicago and democratic legitimation in question. America, along with the rest of the world, was on the brink, just like today.

    The debate famously culminated after the Republican Convention nominating Richard Nixon, who now seems a more sympathetic figure when compared to what followed him. Indeed, Nixon’s statement in 1969 that government has a great role to play in health care, ‘but we must always make sure that our doctors will be working for their patients and not for the federal government,’ is perhaps an idea that still has some merit; especially when one considers the damage of the top-down, dictatorial approach taken by many governments in response to Covid-19.

    In front of a live TV audience of millions, Buckley vented an anger, which he later regretted, calling Vidal ‘a queer’; in response to Vidal describing Buckley as a crypto-Nazi.

    Hate Speech

    Let’s consider both comments in the light of the current Irish legislation, Section 7 and Section 8 in particular. Buckley’s comment is arguably hate speech directed against a protected characteristic, i.e. gay people, although a term that was originally meant as an insult has since been appropriated by the gay community as almost a badge of honour, in a way similar to the artistic licence taken with the “n-word” among African-American (or Black?) communities. Can offensive terms be used by those with a protected characteristic?

    Moreover, in a 1974 essay for the New York Review of Books ‘Fascinating Fascism’ on Leni Riefenstahl, Susan Sontag wondered how it had come about that ‘a regime which persecuted homosexuals [had] become a gay turn-on?’ Under the current legislation would it be a crime to suggest that the Nazi (anti-)aesthetic could be ‘a turn on’ to a gay person?

    A latter-day Gore Vidal might also be prosecuted for branding a right-wing Republican such as Buckley a crypto-Nazi, as Section 8 criminalises grossly trivialising genocide, crimes against humanity and peace.

    Crucially Section 11 of the act allows for a defence of criticism with respect to protected characteristics. But this does not apply, remarkably, to crimes against humanity under Section 8. To this we now turn.

    The language of Section 8 which criminalises inter alia crimes against humanity may be desirable in principle, although the overly broad language sets off alarm bells.

    Arguably, condoning or negating such crimes ought to be a criminal offence. Imagine being an Armenian and having to listen to Turkish propaganda justifying what is considered the first orchestrated attempt to eliminate a national group in the twentieth century?

    But this may easily become a legitimate subject for debate, such as exploring whether the Malthusian policies of the British Crown in Ireland during the Famine of 1845-51 should be described as a genocide.

    Also, who decides whether a genocide has taken place, a body of historians, or a court of law? Do we need to allow the fog of war to dissipate before any such adjudications with criminal ramifications are determined?

    Could it now be an offence to claim that Putin’s war in the Ukraine is really about Great Powers competing for resources rather than an attempt to eliminate Ukrainian national identity? By assessing the attendant brutality of the war in terms of Great Power politics, would a publisher or individual then be “trivialising” a crime against humanity.

    A measured denial of genocide – such as claims that the ICC’s Putin arrest warrant was based on State Department funded report that debunked itself – is completely different to an ahistorical assessment of a wide range of primary sources. The crucial issue here is adherence to the facts. It must be open for historians, journalists and lawyers to scrutinise questionable narratives around controversial events, such as the Kennedy Assassination. A distinction perhaps is that crimes against humanity are generally on a scale such as to make them undeniable.

    Criminalising that which grossly trivialises crimes against humanity is far too opaque and subjective a ground for a prosecution. The Act ought to be challenged under Article 40.6.1 of the Irish Constitution: ‘The right of the citizens to express freely their convictions and opinions.’

    An Article 26 Reference (by the President to the Supreme Court required within seven days of his receiving it) poses the risk however that if is unsuccessful there will be no further opportunity challenge any aspect of it in an Irish court.

    Ecocide and Economicide

    There may, however, be certain unintended consequences of the Act that could be used to advance progressive causes.

    In international law there are established candidates which are part of customary international law so called lex lata (established principles of customary international law), and more speculative controversial candidates over which there is an increasing lack of consensus, called in international law terms de lega ferenda (not yet firmly established).

    Thus, for example, one potential crime against humanity supported from the 1970’s proposed by Richard A. Falk is ecocide or crimes against the environment. Since such a crime involves various forms of intent and can include a conspiracy, it would involve at least the meeting of minds of the major oil and gas companies, and those who profit from them, including legislators.

    There is also a potential new crime against humanity for which there is less authority to date of economicide. Perhaps all of those who peddle a neoliberal world view, or support vulture or cuckoo fund, or allowed wealth to be siphoned off by Big Pharma during Covid-19 could and should be prosecuted!

    It could be said that the lifting of the eviction ban by the government is a form of economicide, as it is indirectly fuelling far-right wing extremism, led by gangsters attacking people with baseball bats. Thus, arguably, government policies, or the lack thereof, have indirectly generated racial hatred, and racism (speech directed against a protected characteristic) is criminalised by the Act.

    The framing of the innocent is also a de ledge ferenda candidate as a crime against humanity. One might argue that the Garda and/or the Department of Justice have condoned or been in denial of this.

    European Convention

    The Act is also likely to be challenged, and is subject to the jurisprudence of the European Court of Human Rights. Irish courts are bound, but rarely properly observe the Charter, despite the interpretative obligation. In reality we follow the ECHR selectively, ignoring it if it is too awkward, as in the nefarious Dwyer case.

    In a number of cases such as Jersild v Denmark (1994) and Lingens v Austria (1986) the ECHR have indicated under Article 10 of the Convention that speech encompasses a right to outrage and shock. These are deemed hallmarks of pluralism, tolerance and broad-mindedness in a society.

    Not everything is permitted. Thus, Holocaust denial or racist speech are excluded from protection, but the parameters are wide and restricted categories do not go quite as far as this Act.

    The crucial case of Lehideux and Isorni v France (1998) is particularly instructive. Here Le Monde newspaper were protected under Article 10 of the Convention for publishing an article celebrating the career of Marshall Pétain, the Vichy French leader who collaborated with the Nazis. The content was not set out in a way to negate or revise clearly established facts.

    It should also be noted that no action of publication or broadcast of hateful material is required, bringing us into the territory of thought crimes. The much-trumpeted defence of legitimate artistic and political criticism only applies to possession of such material.

    Considering the imposition of close to absolute liability for the distribution of so-called offensive material on the internet, and even a reversal of the burden of proof, it is no wonder Elton Musk is concerned. He may be put out of business!

    Moreover, the term ‘may be prosecuted’ is very loose statutory language. On whose behest?

    Stress Test

    Let us stress test the crucial sections of the Act against potential scenarios.

    1. Stating that Leo Varadkar is like Verruca Salz from Willie Wonka’s Chocolate Factory, a spoilt privileged brat, and a wart on the body politic offence falls short of being a criminal offence on a literal interpretation of the Act. But what if one called him a crypto-Nazi or inferred that Nazism could be a turn-on to him? Would that be grossly trivialising crimes against humanity or demeaning to a protected category? Crucially, the defence of political criticism is unavailable for crimes against humanity.
    2. Adrian Hardiman, our finest judge since Declan Costello, once addressed my King’s Inn class to defend his decision in the Portmanock Golf Club case (2009) where he sanctioned the barring of women members from the club, much to the distress of the Equality Authority, which had taken the case. He then argued that a lesbian rugby club should not be obliged to accept him as a member given he was not a lesbian and couldn’t play rugby. These comments by a Supreme Court judge were in a public place. We may have to shut down, or sanitise beyond recognition, the hallowed debating societies of Ireland in response to this Act.
    3. Is Michael O’ Leary the Chairman of Ryanair in his denial of man-made climate change grossly trivialising the crime against humanity that is ecocide? Or what if one were to say that supposed climate change activists including the IMF and Bill Gates are themselves guilty of crimes against humanity for condoning Malthusian practices, rather than focusing on regulating the extractive corporations devouring the planet?

    Book Collector

    I have been a book collector of first editions since I was sixteen. One book in my collection is a first edition of Vladimir Nabokov Lolita, (1959) which narrates in baroque language an affair between a middle-aged man and an under-age girl. I also possess a first edition of the notorious fascist writer Louis-Ferdinand Céline’s Journey to the End of Night (1932). In possessing works that seemingly supports crimes against humanity, and another that undermines protected characteristics am I guilty of an offence?

    Even if I am not prosecuted, does the very existence of such an offence generate opprobrium towards great literature?

    One fears that even the great Dostoevsky’s books may soon be de-platformed if any of these are deemed a “Kremlin-favoured work.”

    Simon Harris has suggested that there is no conspiracy, or campaign being orchestrated against free speech in response to condemnation. The jury is still decidedly out on that question. Perhaps what we see at work is a coalition of interests, or a just a confederacy of dunces.

    A chill wind blows. Slow train coming and more acts to follow.

  • Reform of Defamation Law in Ireland

    Irish Times journalist Naomi O’Leary wrote an article recently commenting on how journalists are curtailed in what they can write by the threat of defamation actions, which contributes to an omerta or code of silence, undermining free speech.

    This leads to self-censorship, dictated by fear of suit. But the Irish Times trust also appears to be compromised by association with vested interests, which dictate the blandishments and glorified stenography passing for journalism commonly encountered in its pages.

    In the aforementioned article, O’Leary cited emotive evidence of a landlord attempting to evict ‘an entire apartment block’, and a civil society group ‘highlighting privatisation in healthcare’ being silenced. She notes, fawningly, that Minister for Justice Simon Harris this week ‘laid out a planned defamation reform, saying it should not be perceived as a “rich man’s law”.’

    Does she seriously think that any reform of defamation laws has simply been designed to restrict the casino capitalism of the current level of awards in defamation cases?

    Indeed, in some instances a high level of damages is appropriate. For example, Lord Aldington was entitled to millions in damages for the outrageous slur that he had participated in sending the Cossacks back to Stalin. The unjustified staining of reputations with crimes against humanity requires vigorous restraints.

    Reforms

    Predictably, the draft guidelines for what lies in store do not look auspicious, as it appears designed to protect the powerful, who dominate legacy media.

    It should be noted that recently both Taoiseach Leo Varadkar and Tánaiste Micheál Martin suggested that Sinn Féin were using legal action and menacing solicitors’ letters to undermine free speech and robust questioning of political motives. There was obvious concern arising out of strict conditions for an RTÉ interview with Shane Ross, discussing his biography of Mary Lou McDonald.

    I have some empathy with Ross – whose views I generally find abhorrent – as when I went on RTÉ they stipulated certain matters, such as overt criticism of the Gardaí, were out of bounds.

    What Ross wrote about the Sinn Féin leader may not have been defamatory, but simply ideologically tainted.  After all, Ross has what might be regarded as extreme views on certain issues, as, arguably, do elements within Sinn Féin. The difference is that Ross is indulged by the establishment with publishing deals and a column in a Sunday paper. Go figure.

    If you want to be a journalist in Ireland it is generally advisable to espouse neo-liberal views.

    Leo-Liberal.

    Village’s ‘Putinistas’

    Moreover, remarks made by Leo Varadkar last year in an interview with the Sunday Times to the effect that those associated with the Leo the Leak story in Village Magazine were Russian sympathisers is a classic example of the degradation of contemporary political discourse, conveyed by media which offers an uncritical platform to those in power. It was, of course, clearly defamatory towards its editor Michael Smith, who has been vocal in his condemnation of Vladimir Putin.

    He might not expect a justified windfall, however, if the case comes before a Fine Gael-appointed judge, as opposed to a jury, as the defamation bill proposes.

    The renowned jurist Geoffrey Robertson QC has criticised gagging orders silencing critics, which serves the interests of the kleptocracy, including Russian oligarchs, in a recent book. but be we should be careful for what we wish for.

    A gagging orders might have been appropriate to counter Labour’s recent absurd slur against Rishi Sunak, which Keir Starmer doubled down on despite internal criticism from within his own party. All too often it has been the fake left, epitomised by Alastair Campbell, which has pandered to press hysteria in criminal justice in the UK.

    Blackmail

    I note the word ‘aggressive’ being used by Ms O’Leary in the context of pre-emptive threats, which is similar to the menace required to ground the criminal offence known as blackmail; the definition of which is menace backed by threats. Such tactics are something the government parties in Ireland and apparatchiks in the police and justice department know a considerable amount about.

    So, spurious defamation actions for ulterior motives may come close to the criminal charge of blackmail backed by threats, but only if these are spurious and untrue. But what if they are true? And where should the balance lie?

    It is almost universally agreed, including, apparently, by the incumbent Minister for Justice, Simon Harris that ‘Democracy cannot truly flourish without robust protection for the right of freedom of expression.’ In a certain respect, however, this Bill will in fact seriously curtail freedom of expression, a point that Naomi O’Leary strikingly ignores.

    Indeed, one wonders whether the whole article was conceived in cahoots with said Minister, who she has previously quoted approvingly over his role in the repeal of the Eighth Amendment, while ignoring that he once adopted a Pro-Life stance. The article is also presented with a flattering shot of the Minister emblazoned over it, depicting him as the champion of free speech.

    Online Disclosure

    Freedom of expression is the central hallmark of a democracy. Anthony Lewis, referring to the First Amendment of the US Constitution, said that free speech should be a search engine for the truth. The great legal scholar Ronald Dworkin argued that free speech is a condition of legitimate government and a counterweight to hysteria and unreason. Stephen Sedley, a great English judge, called it the lifeblood of a democracy. Freedom of speech also opens the government and indeed opposition to intense scrutiny. The prior restraint of gagging orders invites scepticism.

    So, bearing this in mind, let us explore the motivation of the current government for reforming the defamation laws.

    The proposed government Bill on Online Disclosure applies to all media, including Twitter, and potentially criminalises certain categories of ‘hate’ speech.

    It could amount to the most dramatic curtailment of free speech in the history of the state. Thus, if Naomi O’ Leary had the temerity to compare Leo Varadkar to a wart on the sole of one’s foot in jest she might be prosecuted, and appear before a Fine Gael appointed judge.

    The much-trumpeted new Whistleblowing Act ineffectively opposed, and badly amended, is also worth considering. It does not protect media breaking stories; nor does it adequately protect employees including journalist from reporting externally.

    A legal environment that favours legacy publishers that employ expert legal advice in advance of publication, as opposed to private individuals ranting on Twitter – often to very small audiences – also ignores the restraints imposed internally by an increasingly corporatized press, which acts as a stenographer to the powerful. This is a role which Naomi O’Leary herself seems proud to perform.

    The Irish Times is a trust, but dependent on its sponsors and connections; so it does not, and arguably cannot, provide genuinely truth-driven coverage that a true democracy requires. It is institutionally neutered and not just by prospective defamation actions.

    Defamation suits and pre-emptive injunctions chill free speech, and are frowned on by lawyers and responsible journalists. Such injunctions sought to shut down Watergate and Wikileaks. The judgment in the seminal US constitutional case the Pentagon Papers frowned on it. Politicians ought to be thick-skinned when it comes to obloquy and ridicule, it goes with the territory of assuming power.

    What we are dealing with is a far wider problem in contemporary political discourse. Jürgen Habermas – perhaps the leading public intellectual alive on the planet – developed the crucial idea of ideal speech or communicative action, which serves as an argument to the effect that speech should be proper and non-ideological in order to achieve optimum technical outcomes that are also morally purposeful.

    Sadly, most of what passes for debate in Dáil Eireann would be at the very opposite pole to the kind of Enlightenment salon discussions he imagines.

    Outer Limits of Free Speech

    The criminalisation or suing or gagging of speech – generally of those that most need protecting – is an awful feature of these woe-begotten times.

    Given the approving coverage that legacy media already provides to representatives of the parties representing large corporations in Ireland, the least we might expect is that debate on online fora continues remains robust, and, in general, conducted without fear of suit.

    Rarely, if ever, does the Irish Times land a blow against vested interests in Ireland, channelling instead a latent anger against distant caricatures over whom we have no control. Online fora at least offer an opportunity for citizen journalists to provide accounts that challenge dominant narratives in a way that legacy media does not.

    Naturally, speech has its outer limits. Hate speech that inspires violence against minority groups cannot be tolerated in a civilised society. Social media publishers have a responsibility to moderate content, but cannot be allowed to decide what constitutes ‘disinformation’, and censor according to the whims of bodies that may be subject to regulatory capture. Censorship is always dangerous.

    Surely, with respect to Fine Gael for example, one should be allowed to describe them as crypto-fascists, or indeed suggest that Mary-Lou McDonald is associated with terrorists as Mr. Ross seems to have done.

    Fintan O’Toole constantly warns against the dangers posed by Sinn Féin, but rarely does he offer a searing critic of the corporatocracy and dominant political parties. His sympathies seem to lie with a weary establishment, which ‘have no choice’ but to coalesces with the neoliberal parties.

    Untrammelled freedom of expression should only be accorded to those who say something of significance – those who have something to lose by speaking out.

    Robust Debate

    The solution, of course, is not litigation but robust debate in civil society; as one of the great defenders of speech the late great Christopher Hitchens put it: ‘If you disagree with me, do so and stand in line so I can kick your ass.’ Or words to that effect. Possibly slurred.

    A defamation action can ruin a person’s life. A casual disregard for the truth in Ireland and premptive publication fed by the police and its journalistic cohorts in the gutter press can have serious consequences. The Irish Independent and much of RTÉ deserve no special protection.

    Given the platform he is accorded, nor should the gaffe-prone Leo Varadkar be allowed to shelter behind loose laws that should be designed to protect real journalists. His big mouth was most recently in evidence with his crass sub–American Monica Lewinsky comment.

    Indeed, give the parlous state of media in Ireland, one shudders to think what nonsense will be published if we are to dispense with reasonably strict defamation laws, and jury trials.

    Nonetheless, I can agree with a certain amount of what Naomi O’Leary’s recent article argues. No doubt defamation awards should be curtailed and are out of kilter with other jurisdictions, but negating jury trials where liars are exposed would be a retrograde step, and the criminalisation of the nebulous concept of hate speech could be disastrous, rendering satire almost impossible.

    Freedom of expression has its limits. Indeed, one wonders about the responsibility of a publisher such as the Irish Times, which gives a platform to an ideologue like Michael McDowell, who attributes the world’s problems to Vladimir Putin as opposed to the neo-liberal shock brigade that he and his Irish Times acolytes belong to. They have provided cover for mass evictions, a declining quality of life and incipient far-right fascism.

  • Eviction Ban: Towards an Unjust Society

    An earlier version of this article was recently published in the Irish World newspaper, we commend the courage of the editor Bernard Purcell for doing so, but a week is a long time in politics and we felt it required updating and a short addendum on the possibility of a legal challenge.

    Indirectly, the failure to deal with the issue of housing and homelessness has led to the rise of far-right protests, tar­geting immigrants in temporary accommodation. This is the slippery slope to fascism.

    Housing is the defining issue of this Irish generation. By extension, it is the defining issue of Ireland’s next general election.

    One slender thread of hope to ensure matters did not decline further was Ire­land’s temporary ban on evic­tions. But that has been re­scinded.

    In contrast, Scotland had the good sense to extend its own evic­tions ban until September. But in the midst of the worst housing shortage in the country’s history, the Irish government is prioritising the financial interests of land­lords.

    Ireland’s recently ap­pointed Attorney General Rossa Fanning SC had advised the Irish government that landlords’ groups could mount a constitutional chal­lenge to the extension of the ban. But the Irish government subsequently insisted its de­cision to revoke the evictions ban was a political one, rather than one based on the AG’s advice.

    Nevertheless, the Irish governments have frequently hidden behind the issue of constitutionality. It’s the first line of de­fence whenever the question of genuine rent control is pro­posed, and the last line of de­fence when the calls for the introduction of the eviction ban were first made.

    Constitutional Problem?

    We believe there is a constitu­tional solution to a suppos­edly intractable constitutional problem. The origin of the problem is that in Blake v Madigan (1982) The Rent Restrictions Act 1960, (1981) limited the amount of rent which could be charged on certain con­trolled dwellings.

    It also made it difficult for a landlord to recover posses­sion of a dwelling affected by the legislation. Landlords argued that the legislation amounted to an unjust attack on their property rights.

    The Irish Supreme Court agreed, referring to how the scheme operated in an arbitrary manner, with no means testing of either landlord or tenant, and that no compensation was available for the restriction of the prop­erty rights of the landlords af­fected.

    So, under the Constitu­tion, the right to property is to be protected against “un­just attack and the landlords’ rights unjustly attacked.”

    But constitutionally, this idea of an unjust attack is sub­ject to the proviso that the rights of landlords must give way to the common good – where the legislature is informed by Directive Principles of Social Policy set out in Article 45  – and also that the means used to intrude on property rights are proportionate.

    Social and Affordable Housing

    The social justice and common good arguments for maintaining an eviction ban are, in our view, overwhelming. But, of course, this would limit and restrict the property rights of landlords in an increasingly neolib­eral Ireland.

    Compulsory purchase schemes have, however, been upheld in such cases as Dreher [984], with the suggestion that sometimes there is no need to pay any compensation.

    In Re Article 26 and Part V of the Planning and Devel­opment Bill [2000] 2 IR321, Part V of the Bill aimed to provide affordable housing and social integration, imposing a con­dition that planning permis­sion for residential developments would either have to cede some of the de­velopment for affordable housing, or instead pay com­pensation.

    There was no require­ment that the State pay com­pensation to the developer under the scheme, which was upheld by the Supreme Court in a judgment which focused largely on the reasons for the restriction on property rights.

    The Court noted that the restriction on property rights was justified and proportion­ate to the objectives of the Bill.

    Based on this precedent, today the government could acquire properties at less than market rates, paying a measure of compensation to the landlords and thus avoid­ing the unappeal­ing vista of increased homelessness, leading to further social divisions further social divisions, and creating conditions for the rise of a far-right fas­cism, which may serve the interests of this neoliberal coalition, and its apolo­gists.

    It could also have a wel­come deflationary impact on the price of property which now exceed Celtic Tiger levels.

    Shared Equity

    Alas, it appears the Irish government does not want this and has pro­posed an alternative. They are currently drawing up leg­islation which in effect will extend their Shared Equity scheme to second hand homes where the land­lord wishes to sell but has a tenant in situ.

    The drive to introduce this Shared Equity scheme came from the two main property lobby groups – Property Industry Ireland and the Irish Institu­tional Property.

    Neither group came up with the idea itself. It is based on an English scheme which research by the London School of Eco­nomics (LSE) found pushed up London house prices by 9per cent.

    In effect, it operates as a dual mortgage, whereby the tenant in situ would have a mortgage to a bank and also be required to repay the State who would take an “equity stake” in the property.

    This is unlikely to work, or even be ready in time, for the forthcoming wave of Irish evictions. A simpler proposal is to follow the South African model of amending the Consti­tution to include an enforce­able right to housing in an emergency context.

    The Irish government’s promise of a housing referen­dum has foundered on a dis­agreement about the wording. We suspect that it will not implement what is needed for an immediately enforce­able emergency housing right, as is enforceable in other jurisdic­tions.

    A Just Society?

    We doubt the pre­sent government has the po­litical will for meaningful action on housing. But there is an al­ternative, which is to launch a constitutional challenge so the Supreme Court can recant on such ne­farious cases as O’Reilly v. Limerick Corporation [1989] in which Mr Justice Declan Costello (1926-2011) held that he lacked jurisdiction to compel the defendant to pro­vide the plaintiffs with ade­quately serviced halting sites, because this was a question of distributive justice.

    Such matters of social justice, he intimated, were for Leinster House, not the Four Courts. Importantly, he recanted the O’Reilly decision a few years later in the case of O’Brien v Wicklow UDC [1994].

    Costello (1926-2011), the son of former Taoiseach John A Costello, was a former Fine Gael TD, Attorney General, barrister and judge, who served as President of the Irish High Court from 1995to 1998.

    As a politician he was the author of Towards a Just Society, a policy document which shifted Fine Gael towards the left and social justice, and which made Fine Gael a more at­tractive coalition partner for the Irish Labour Party.

    Costello also created Ire­land’s Office of the Director of Public Prosecutions and the Law Reform Commis­sion, making him the most effective and consequential Irish Attorney General in the history of the State.

    He was a thoroughly de­cent man, and a visionary, but also a product of his background. Fine Gael has long since parted company with Costello’s vision of the Just Society for Ireland. Just like Fianna Fáil, it has been completely cap­tured by business interests, landlords and property de­velopers.

    Their politics is little more than the shadow cast upon society by big business, as the American philosopher John Dewey (1859-1952) might have said.

    The portents for a constitutional challenge in this period of an unprecedented housing emergency are not, however, all bad. In a fledgling way recent judgments have hinted at a more interventionist approach, in pro­portionate terms where there is recklessness or bad faith.

    Well, if throwing people out on the street, disrupting family units with no afford­able place to go, is not reck­less, what is?

    The very fabric of Irish society frays, as dust is left to gather on those copies of Just Society which remain shelved and unread in Fine Gael’s basement.

    The current crop of Fine Gael TDs have no interest in reading that document, but are happy to deploy it for public relations purposes when it suits them.

    Last week Sinn Féin forced a vote on the govern­ment’s lifting of the eviction ban, which led to one Green T.D.’s Nessa Hourigan breaking ranks and voting against the government.

    As the doomsday sce­nario for terrified tenants looms large, and the Irish government looks on with complete indifference to such pain, we are reminded of the word of a Christy Moore song- “the spirit that dwelt within, now sleeps out in the rain”.

    Addendum

    With the government’s rejection of last week’s motion from Sinn Féin to extend the eviction ban, and with the help of certain “independent” TDs, the same result is now likely to be reached today. The Labour Party’s no confidence motion has also fallen short.

    This government and its drive to break all homelessness records is bruised and battered, but not unbroken. In our view the last remaining hope for the thousands facing eviction rests upon the kind of last-minute legal challenge our initial article set out.

    Papers could potentially be lodged on Thursday seeking an interim injunction for violations by the government of Article 43, Article 40.3 and Article 45 of the constitution. This will require state-sponsored lawyers to show cause, and seek a return date for a fully-fledged interlocutory hearing with skeleton arguments and detailed consideration.

    The logic is that the implementation of the lifting of the eviction moratorium on Friday would not happen as mandatory relief and an injunction would be sought against the lifting. This would require careful judicial consideration, and thus time for cool judicial heads to resolve whether it could be secured.

    If a lawyer cannot be enabled to seek an interim injunction on such short notice any member of the public can do so.

    However, a powerful symbol would be the representatives of the opposition in Dáil Eireann coming together, in conjunction with some of those currently facing eviction, to try and avert the inevitable prospect of a humanitarian catastrophe on our streets in the months to come.

    A new Socialist Lawyers’ Association of Ireland announced its establishment in January of this year, so perhaps they might even want to lend a hand. There are also organisation likes CATU and other campaigning groups. But time is of the essence.

    Our conservative political classes seem to have either sleep-walked or deliberately created this unprecedented housing crisis and its dysfunctional property market. Sterile and detached cost benefit analysis where households are units and people products lead to the increasing dehumanisation of those impacted by policy decisions.

    Even the most basic rights we can think of like housing and a safe and secure upbringing seem to wither on the vine. To quote someone who Fine Gael should know well:

    “We are not living in a just society. This fact must be understood, and complacency must be dispelled, and enthusiasm created to remedy the social injustices in our midst.”

    Those are the words of the late Declan Costello former Fine Gael TD, Attorney General and author of the “Just Society”. They seem to ring truer than ever.

    The time has come for a Housing challenge, for we the people.

    David Langwallner is an Irish Barrister based in London. Cillian Doyle is a political economist and policy advisor. The views expressed are their own.

    Feature Image: Daniele Idini

  • The Importance of Public Debate

    At a recent debate organised by the English-Speaking Union (ESU) at its HQ, Dartmouth House in London, we considered whether the British government’s response to Covid placed too great a priority on security rather than liberty. Naturally I took the liberty side of the argument.

    I expressed the fear that such a public forum as the ESU had convened could represent an interregnum, or lull in the storm, but hope springs eternal.

    A central hallmark of a democracy is freedom of speech. In terms of the First Amendment to the US Constitution, Anthony Lewis argued free speech should act as a search engine for the truth. Ronald Dworkin argued that free speech is a condition for legitimate government, and a counterweight to hysteria and unreason. Stephen Sedley, an eminent English judge, called it the lifeblood of a democracy. Freedom of speech also opens government and private enterprise to intense scrutiny. Above all, it encourages diversity and tolerance.

    Christopher Hitchens.

    Right to Ridicule

    It is not for the faint of heart. Christopher Hitchens remarked that freedom to speak inoffensively is meaningless, while Dworkin insisted on a right to ridicule.

    The overarching argument for speech rights was expressed beautifully in extremis by Hitchens when he said, ‘if you disagree with me that is your prerogative, so stand in line while I, rhetorically, kick your ass.’

    Conflict is resolved best through argument with the truth sacrosanct, ideally via open-ended public debate.

    This should not merely be rhetoric, but include arguments of substance. And the ESU provides, or can provide, that forum. Perhaps uniquely so. Indeed, it was heartening to encounter a multi-generational debate that included insightful youthful interventions.

    In retrospect, Hitchens represents the tail end of a tradition beginning with his hero Thomas Paine, mediated through his other great hero George Orwell, and culminating in him through a rich tapestry of public intellectuals and journalists, who fundamentally believed the pen to be mightier than the sword: that speech and words matter.

    Alas today speech has degenerated in the popular press into public titillation and gossip. It is also noticeable that the great traditions of investigative journalism, evident during the golden era of the Washington Post under Katherine Graham and The Times under Harold Evans, is in serious decline. Today most investigative journalism is a sham. The intellectual culture of the press has been degraded beyond belief.

    Social media is now a form of speech-driven pornography, where legitimate and illegitimate expressions of speech are proving impossible to disentangle. Character assassination and casual defamation have become the order of the day. The Internet may be a force of liberation in some respects, but also permits public display of ever more bizarre and outlandish commentaries. Mark Zuckerberg has unleashed a Promethean conflagration that remains untamed.

    Today’s emphasis on brevity and soundbites in politics conceals how the truth often requires explanation, as it is often nuanced.

    Aneurin Bevan talking to a patient at Park Hospital, Manchester, the day the NHS came into being in 1948.

    Like paying a visit to Woolworths…

    Aneurin Bevan, as good an orator as Churchill, once remarked that listening to a speech from Labour leader Clement Atlee was like paying a visit to Woolworths: ‘everything was in its place, but nothing was above the value of sixpence.’ To be convincing speech should have the necessary brio to rouse an audience.

    From Jeremy Bentham’s Speech Acts, Jürgen Habermas, develops the crucial idea of Ideal Speech or Communicative Action. This is an idea that speech should be formal, and not tainted by an unthinking recourse to ideology. He also suggests that such dialogue in the tradition of the Enlightenment salon will provide technical outcomes that are also morally purposeful.

    In Communicative Action he wrote: ‘Speakers coordinate their action and pursuit of individual (or joint) goals based on a shared understanding that the goals are inherently reasonable or merit worthy.’

    It succeeds:

    insofar as the actors freely agree that their goal (or goals) is reasonable, that it merits cooperative behaviour. Communicative action is thus an inherently consensual form of social coordination in which actors “mobilise the potential for rationality” given with ordinary language and its telos of rationally motivated agreement.

    Although not all speech should have to be taken seriously, it is important that a forum such as Dartmouth House is maintained for popular shibboleths to be dismantled in public debate.

    George Orwell.

    Doublespeak

    So, propaganda should not be taken seriously, nor modes of advertising, without close and detailed inspection. The opinions of many putative experts fall under the same category. Certainly, a little knowledge is a dangerous thing.

    The use of language – however cloaked in notional expertise – to undermine freedoms is a very worrying development. The employment by officialdom of complex legal discourse and manipulation of language may represent the onset of what George Orwell referred to as ‘doublespeak’. This can be exposed in civilised public debate in a neutral forum.

    A certain degree of puff and blow will always be found among business-people. Advertising lubricates the wheels of commerce, but when almost non-existent standards permit multinational corporate entities, including the pharmaceutical sector, to fabricate, falsify and frankly lie, thus precipitating financial and environmental collapse, this may represent a return to the dark ages.

    Sadly, mainstream political debate has disintegrated. Notably, Donald Trump and Hilary Clinton engaged in a travesty of a public debate before the US Presidential election of 2016. It was more like a staged reality TV show. Its nearest equivalent was the format of a farcical game show, such as the Jerry Springer Show.

    Thus politics has become part of the entertainment industry. Despite his Classical education, Boris Johnson invokes Peppa Pig before business leaders.

    So, an unconditional respect for freedom of speech should be offset by an understanding that certain speech does not warrant protection. Nonsense is best resolved by forensic debate – cutting through crap in common parlance.

    Surveillance Capitalism

    The criminalisation of unpopular opinion is a worrying feature of our times, and it is ‘subversives’ such as Julian Assange – along with those who dared to hold a referendum in Catalonia – that are accused, prosecuted, and convicted of treason. It is these dissidents that need protection.

    Under the Facebook and Google dispensation people become products to be profiled and mined, a point made brilliantly in Shoshana Zuboff’s The Age of Surveillance Capitalism.

    Moreover, political correctness has also led to the intensification of extremism. I would argue that this includes attempts by the transgender lobby to ban esteemed academics from the airwaves or campuses. ‘No platforming’ undermines public debate, as do unsubstantiated complaints to academic authorities that lead to the removal of a radical professor.

    So, when in Georgetown University certain radical professors indicated they were far from unhappy at the death of the arch conservative Judge Scalia, their conservative colleagues sought their removal on the basis that the ‘snowflake’ generation of easily upset students would be offended at the disrespect.

    We must maintain a right to protest, engage in civil disobedience and crucially – in an increasingly controlled and technocratic age – the right to offer truth-bearing, fearless and independent criticism.

    KKK rally near Chicago in the 1920s.

    The Limits of Freedom of Expression

    Speech has its outer limits, where there is a clear and present danger of imminent lawless action. This tension is explored in Snyder v Phelps, where a fundamentalist Christian group demonstrated outside a gay serviceman’s funeral.

    Upholding speech rights, the Court concluded that:

    Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

    Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

    Moreover, in Brandenburg v Ohio 359 U.S 44, the Court went so far as to protect even racial abuse at a Ku Klux Klan ‘rally’ held at a farm in Hamilton County.

    One film showed twelve hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of African-Americans and, in one instance of Jews.

    The Supreme Court concluded that this was speech protected under the First Amendment on the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

    In contrast, the ECHR will not protect either racist speech or Holocaust denial. And even the ESU may feel the Americans went too far.

    But the detailed US decisions show how far the US courts are prepared to travel to protect speech. It is an important point that it is the speech we most dislike and most disagree with that needs the most protection.

    Village stocks in Bramhall, England c. 1900.

    Enemies of the People

    Whistle-blower legislation protects those who want to expose official corruption and protects speech. However, as I have found, the spectre of criminal prosecution under Official Secret’s legislation is always a suspensive and possible threat. Anyone blowing the whistle must evaluate the risk of prosecution, including the almost inevitable consequence of job loss and ostracism.

    Henrik Ibsen’s Enemies of the People – perhaps uniquely in his oeuvre – was overtly political. The premise is simple: a prominent and well-connected local engineer whose brother is the town mayor is asked to conduct a survey of the waters of the town. The town in question has become famous as a spa resort attracting a great deal of tourism, but when he tests the waters, he finds that they are polluted and informs the town and indeed his brother.

    It is the reaction to this that is interesting. Rather than lauding him and complimenting him for his finely attuned sense of ethics and correct analysis, they turn on him with ever-increasing ferocity. A storm of hatred is unleashed.

    He will destroy the local economy. Their livelihoods will be affected. The industry of the town will be negated. He is shunned, ostracised, victimised. His family is torn apart, and he becomes an ‘Enemy of the People’. The mob descend in all their unfettered glory. Sound familiar?

    Thus, we must protect freedom of speech as it vitalises a democracy, but we must also recognise the rules of civic discourse.

    Yet I fear that a great tradition of oracy, public communication, rationalist discourse and generalist interest is in decline: usurped by the purveyors of false information, false speech acts and blandishments.

    If the English-Speaking Union can revitalise the young with a passion for genuine public communication, it will be performing a great service, training a new generation of professionals in the essential and transferable skills of advocacy, public communication and, above all, respect for the truth.

    Feature Image: Presidential debate between John F. Kennedy and Richard Nixon for the 1960 election in the United States.

    The English-Speaking Union (ESU) is an international charity and membership organisation underpinned by Royal Charter working to give all young people – regardless of background – the speaking and listening skills and the cross-cultural understanding to enable them to thrive.  

    Our programmes are underpinned by over 100 years’ expertise in the field of debate and public speaking delivery, policy and research. 

    Founded in 1918 by the author and journalist Sir Evelyn Wrench, the ESU brings together and empowers people of all cultures and nationalities by building confidence and shaping communication skills, so that individuals can realise their full potential.  In our 36 branches in England and Wales and 54 international branches, the ESU carries out a variety of activities such as: competitions, debating, public speaking and student exchange programmes, teacher training, classroom outreach, research and scholarships. All of these encourage the effective use of the English language around the world.

    To find out more about our work, please go to: https://www.esu.org/ and so consider joining the ESU: https://www.esu.org/support-our-work/become-a-member/.  Please contact Matthew Christmas, Head of Engagement, if you would like to know more or to volunteer with us: matthew.christmas@esu.org.

    Dartmouth House, in the heart of Mayfair, is our International Headquarters and, as Covid recedes, we are delighted to be re-starting our regular public debates where we encourage civil discussion and informed debate where all ages can get involved. 

    The next Dartmouth House Debate is on Monday 09 May 2022 at 1830 hrs to debate the motion that “This House believes that cryptocurrency and NFTs are a hyped-up fad.” 

    We hope that will want to find out more and get involved with the ESU.

  • Lessons from the Great Depression III

    Don’t you ever read the papers? Roderick Spode is the founder and head of the Saviours of Britain, a Fascist organization better known as the Black Shorts. His general idea, if he doesn’t get knocked on the head with a bottle in one of the frequent brawls in which he and his followers indulge, is to make himself a Dictator.’ ‘Well, I’m blowed!’ I was astounded at my keenness of perception. The moment I had set eyes on Spode, if you remember, I had said to myself ‘What Ho! A Dictator!’ and a Dictator he had proved to be. I could not have made a better shot, if I had been one of those detectives who see a chap walking along the street and deduce that he is a retired manufacturer of poppet valves named Robinson with rheumatism in one arm, living at Clapham. ‘Well, I’m dashed! I thought he was something of that sort. That chin…Those eyes…And, for the matter of that, that moustache. When you say “shorts,” you mean “shirts,” of course.’ ‘No. By the time Spode formed his association, there were no shirts left. He and his adherents wear black shorts.’ ‘Footer bags, you mean?’ ‘Yes.’ ‘How perfectly foul.
    P.G. Wodehouse, The Code of the Woosters (1938).

    The above quote may offer a certain hope for those of us who see in each crisis a foretaste of worse to come; that hope is that Fascism can be undermined by ridicule – even while it is gaining traction – as long as a Dworkinian right to freedom of speech abides.

    But I next turn to a writer not noted for his sense of humour, George Orwell, who is central to our understanding the Great Depression, at least from a British vantage. His 1946 essay ‘How the Poor Die’ is a also crucial text for this austerity period, when social supports are being steadily withdrawn and a public health crisis looms large. Such are the consequences, unintended or otherwise, of an awful ideology that has put the NHS into freefall, and the Irish health service into near collapse.

    Animal Farm and 1984, with their simplification of language and distortion of truth from 2 =2 =5 to Newspeak – or in present parlance News International – are curiously prescient for our age. The Communist dystopia Orwell envisaged is not what we have now. Our own is of a different character altogether.

    Lowry, Laurence Stephen; Coming from the Mill; The L. S. Lowry Collection; http://www.artuk.org/artworks/coming-from-the-mill-162324

    Army of Managers

    The great painter of the Depression-era L.S. Lowry once remarked:

    A really efficient totalitarian state would be one in which the all-powerful executive of political bosses and their army of managers control a population of slaves who do not have to be coerced, because they love their servitude.

    This is the kind of Stockholm Syndrome that we have witnessed throughout the pandemic, when even left wing parties previously noted for their resistance to corporate authority, rolled over to have their bellies tickled, as the one percent almost doubled their wealth.

    Lowry, as much as Grosz and Dix, chronicled working-class existences in painting, but as a prose artist he also captured the era beautifully in Coming From the Mill (1930). ‘As I left [Pendlebury] station I saw the Acme Spinning Company’s mill,’ Lowry would later recall. Describing:

    The huge black framework of rows of yellow-lit windows standing up against the sad, damp charged afternoon sky. The mill was turning out hundreds of little pinched, black figures, heads bent down. I watched this scene – which I’d looked at many times without seeing – with rapture.

    His matchstick men and women are best seen in the Lowry Gallery in Salford near Manchester, an area much gentrified now but still recognisably working class. And if you turn away from the main paintings, one still finds the bitter fruits of economic depressions: drunken brawls and young children in virtual rags.

    Brave New World!

    Aldous Huxley’s Brave New World (1932) is a core text of our time. The soma-induced compliance replicates our non-critical consensus of disinformation. Bernard the anti-hero wishes to leave for Iceland, a psychological state many of us wish to flee to now. Like Wittgenstein, I have a preference for a good Fjord.

    In mainland Europe the contradictions of the European Depression are well etched by the greatest of all American writers, F. Scott Fitzgerald. He was an incurable alcoholic by the time he penned his second masterpiece Tender Is the Night, to mixed reviews, in 1934. The lead character Diver is redolent of a lost parvenu generation, a parable for how many of a certain class lose their way on the French Riviera.

    It is cautionary tale of a loss of relevance, context and credibility. In a way, we all must resist a decadent urge to act like Tory grandees on the fiddle amidst the booze at Number 10.

    And what about other European literature for those who want us to “stay safe by staying apart”? Well, the antisemitic Louis-Ferdinand Céline is responsible for at least two prose masterpieces of the Great Depression that lay bay his own hypocrisy.

    His 1932 Journey to The End of Night is a phantasmatic horror story chronicling the Great Depression. It contains a piquant quote that goes some way towards explaining his own moral descent: ‘I warn you that when the princes of this world start loving you it means they are going to grind you up into battle sausage.’ We ought to be wary of artists that achieve great success in their own time, or journalists for that matter.

    He also refers to the “necessary” distance the rich must develop from the sufferings of the poor:

    I hadn’t found out, yet that humankind consists of two quite different races, the rich and the poor. It took me … and plenty of other people . . . twenty years and the war to learn to stick to my class and ask the price of things before touching them, let alone setting my heart on them.

    Jean Renoir

    More than Céline, along with Albert Camus, the greatest French intellectual artist of that period was the film director Jean Renoir. His most significant film ‘La Règle du jeu’ is situated at the precipice of collapse.

    Set in an aristocratic milieu just before the outbreak of the Second World War, it is decidedly jittery, with a real sense of fin de siècle. We find attractive though silly people on the brink of a calamity. It seems now quite relevant as we face unprecedented times, where chaos and uncertainty rule.

    Renoir views the characters sympathetically with Octavia – the voice of moderation – central to the film. Renoir was acutely conscious of being on the brink of disaster, and expressed  an objective humanism with the famous line ‘that everyone has his reasons.’

    In the subjectivity of our time that quote remains a clarion call for a heightened perception of danger, especially as moral relativism gains traction.

    Renoir elaborated in commentary on the film that all cultures are cliquish and have their own rules and protocols of dealing with those who do not observe the rules of the game, or the rule of law. But that is prior to seismic change where brute force supersedes civility.

    Renoir touched a raw nerve. When it opened a right-wing French audience went berserk, in a way similar to the reception in the Abbey Theatre in Dublin to J.M. Synge’s The Playboy of The Western World in 1907.

    Renoir’s acid comment was in effect that these people were doomed, and that the audience reaction showed that ‘people who commit suicide do not do so in front of witnesses.’

    The film has an astute sense that class or poverty more than race or ethnicity is the ultimate determinant of social division. That idea remains vitally important in these absurd politically correct times, and indeed victimhood or assumed victimhood as it is now. Our priorities should be to maintain access to housing, health care and legal representation.

    Welles and Buñuel

    Another of the greatest creative artist of the twentieth century toured around Ireland at the end of the Depression, before taking a job at The Gate Theatre. Later, in ‘The Third Man’ (1949) he made a guest appearance as Harry Lime. One, less celebrated speech. captures the existential dilemma of our time

    If I offered you twenty thousand pounds for every dot that stopped, would you really, old man, tell me to keep my money, or would you calculate how many dots you could afford to spare? Free of income tax, old man. Free of income tax – the only way you can save money nowadays.

    This is a logic that appears to have been adopted by pharmaceutical companies in recent times.

     

    The great surrealist film maker Luis Buñuel was another of the great anti-fascist artist of the Depression-era.  He attacked the prevailing mores of clerics, sexual repression and state authoritarianism with utter clarity and savage wit. This led, unsurprisingly, to periods of exile from Spain and a final hideaway for eighteen years in Mexico.

    The stunning and very brave 1950 film about poverty and child criminality in Mexico ‘Los Olvidados’ (the Forgotten Ones) caused a sensation at the time. Its theme reflects a drift into criminality among the youth in many parts of London and Dublin. Today’s child poverty, exploitation, crime and even slavery were also a feature of the Great Depression era.

    Tell Me Why?

    How does Fascism come about? Well it’s a product of inequality and poverty. You could say: “It’s the economy dummy!” In the period we can find evidence of this emerging among the workers in Upton Sinclair’s The Jungle, or the disenfranchised on the streets of Weimar, or the representations of Orwell and Céline who suffer most due to the naked expropriation “adults in the room.”

    Economic depressions create conditions for fascism, or even the new-fangled corporate fascism of our age which represents a triumph of demagoguery and disinformation. So be wary of manipulation and stay flexible, if not unsafe. Facebook and the mass media augment Orwellian tendencies and a campaign of compliance and of induced consent is creating serf capitalism and a potential Malthusian population cull.

    Alas, there is no New Deal or Marshall Plan on the horizon. World leadership is lacking and often far from benign and corporate-led. Apart from resisting manipulation, what all of us at the sharp end of the stick can do is protest to avoid obliteration and not be participants in our own self-abnegation.

    Resist decadence if you can. Survive the new depression: this Great Reset Depression. It will require optimum coping skills not to be culled. And if all else fails, poke fun at the fascists and observe how uncomfortable they become.

  • Lessons from the Great Depression (II)

    Ger-mania…

    Extraordinarily, Germany appears on the brink of following the lead of Austria in mandating a vaccination against COVID-19, as segregation of the unvaccinated continues. We seem to have entered what Gore Vidal described as the United States of Amnesia, as all history is forgotten. So let us cast our mind back.

    I maintain the German Weimar Republic (1919-1933), more than even the U.S. Great Depression, remains the emblem of our age. The comparison is not exact of course, as all analogies break down through the shifting sands of time, but it is useful to review the literature of that period and draw parallels.

    After World War I, when misguided reparations, and a war guilt clause, were inflicted by the victors – with the French and Clemenceau in particular in the driving seat – Germany was crippled with war debts, but crept along until the banking collapse. The period up to 1929 and shortly afterwards was a triumph against great odds of a fledgling social democracy: the Weimar Republic.

    The period is associated with great creativity, and indeed became a synonym for decadence and sexual libertarianism, which made it a soft target for Nazi thuggery. The bonfire of the vanities and the burning of the books was the fascist exhalation of degenerate art.

    Likewise our own Age of Austerity in the wake of the Financial Crisis of 08 has destablised the social and economic structures. We also have had a period of relative freedom, despite the economic pain, but now operate in most countries under a grinding authoritarianism in the face of collapsing health care systems corroded by decades of neoliberalism.

    A begging disabled WW I veteran (Berlin, 1923).

    Tomorrow Belongs to Me

    The Bob Fosse film ‘Cabaret’ (1972) has the fictionally represented Christopher Isherwood in Weimar times represented as leaving Berlin after he hears the Nazi youth sing ‘Tomorrow Belongs to Me’, one of the most chilling songs in a popular film ever recorded; an even more sinister version of the Horst Wessel Song.

    In fact, in the book Goodbye to Berlin (1939) nothing quite as dramatic as that epiphany occurs, just the sense of the persecution of the Jewish community, Communists, dissidents and degenerate races in a sedulous and incremental fashion. This was a fascist authoritarian creep as economic destruction creates victims, but also the externalisation of hatred. The demonisation and demonetisation of the other, crucial also in our own age of unfettered rage and lack of moderation.

    Bertolt Brecht

    The Aesthetics of Resistance

    Peter Weiss made a similar point in his after the event masterpiece, The Aesthetics of Resistance, where in cold retrospect he saw how those with idealism were destroyed.  His masterpiece of memory ends with the execution of his comrades in the Frankfurt Trials; executed and left to hang on fishhooks.

    Bertolt Brecht also saw in genesis and with mystical precision the bloodletting to come in The Threepenny Opera:

    When the shark bites with his teeth dear
    Scarlet billows start to spread
    Fancy gloves though wears Macbeth dear
    So there is not a trace of red

    Now again many want no trace of red. Just bright blue colours. No shades of grey just sanctimonious conservatism.

    The sense of unfolding chaos at the effects of the Great Depression in Germany is well documented in Victor Klemperer’s diary Let Us Bear Witness dating from 1933. He was peculiarly well placed with a protected Christian wife and a Jewish convert to Christianity. Dismissed from his job; furloughed but not sent to a Concentration Camp.

    The rise of fascism was a consequence, then and now, of economic collapse and that is the difference between the American Depression and the German equivalent, but it was a narrow escape for America.

    Roosevelt as a social democrat saved America. but as Philip Roth’s excursus in counter-factual history amply demonstrates there was no shortage of fascist demagogues who could have unseated him, including the folk hero Charles Lindberg. Such is The Plot Against America, where a fascist becomes President. Not then of course, but now?

    But that is getting ahead of ourselves to the endgame. Let us at least anticipate and make plans in the light of a project endgame called The Great Reset, a phrase unerring close to the great leap forward as we enter Chinese corporate feudal times.

    The sense of impending chaos in the Weimar Republic is also well documented by caricaturists such as George Grosz, Otto Dix, and others, many of whose greatest paintings hang as a reminder in Berlin.

    If you look at Grosz’s inelegantly titled Pillars of Society (1926), with the subtitle Shit for Brains, you will see one of the paragons of virtue. It anticipates disaster as the economy collapsed, and the Nazi judges and commissars who would work hand in glove with their jackboot associates.

    Ripe for Collapse

    On its current trajectory, the EU, as Varoufakis recently indicated, is likely to collapse, sooner rather than later, with a pan-Germanic latter day Hanseatic League altready taking its place. Few should mourn it in Ireland and Greece where the social structure has been destroyed through the impoverishment of large cohorts of the population who have falled into homelessness. Ireland is now controlled by hedge funds as a kind of sub-Indonesian corporate client state.

    And what do corporate judges, bankers, lawyers, and politicians do? Well, enforce further austerity in the shape of lockdowns on a docile and far too accepting population. Socially distanced and self-isolated for the near future without a prospect of stability, a sustainable living structure, or affordable rent or housing.

    And what does Weimar art reveal about intellectuals? That they are useless panderers. The paintings of Otto Dix perfectly captures bohemian delirium and ineffectiveness.

    In effect our contemporary consensus neoliberal spouters are spectators on a society falling apart; the collective fiddling as Rome burns. McWilliams in his wine bar.

    So, hand in glove with economic collapse we witness the destruction of the very concept of human rights. The seepage of emergency powers and executive action, documented in the eariler period by the great jurist Carl Schmidt, with disproportionate and excessive measures. Just as the Reichstag fire was used to end democracy in Germany.

    As far as social and economic rights and Weimar was a disaster. Banknote were printed in billion increments with which you could barely buy a loaf of bread.

    Berlin Alexanderplatz

    Perhaps the greatest German novel of the Depression era is Berlin Alexanderplatz by Alfred Döblin, although his neglected earlier novel Mountains Oceans Giants also presages our times, with its harbingers of environmental collapse.

    Döblin also utilises other 1920s anxieties — Malthus, Suffragettes, miscegenation, decolonization — onto the 27th century where Europe is under siege from “hordes” of migrants “flooding” from the Global South. “India-China-Japan” rises as a rival bloc to the New York-London “Anglo-Saxon Imperium,” while fierce clans of women find success in an “unending struggle against patriarchy,” even preferring “taboo” relationships with the alien migrants.

    Science fiction then but becoming recognisable today. The demonisation and demonetisation of others and the migrant. Not one of us.

    Berlin Alexanderplatz was dramatized by Werner Fassbinder in the peritectic chronicle of its everyman German Franz Bide Kopf, convict, pimp, worker; through the swathes of the Weimar republic.

    It is at one level a chronicle of our own time. Dubious associations, flirting with fascism and in passages most relevant and redolent, a panegyric against erstwhile Communist friends, which shows how the everyman is seduced by Utopian ideals:

    We’ve got to have order, order, I’m telling you, order—and put that in your pipes and smoke it, order and nothing else . . . and if anybody comes and starts a revolution now and don’t leave us in peace, they ought to be strung up all along the street . . . then they’ll get theirs, when they swing, yes, sir. You might remember that whatever you do, you criminals.

    Law and Order the totalitarian clarion call. The most important passages are the slaughterhouse and abattoir scenes, which are most unsettling and relevant to our times. Equating the costing of microscopic slaughter of the animals with human slaughter. The expiration of man and beast, or cost-benefit analysis of life. Compulsory vaccination for the herd.

    The Weimar Republic echoes through the ages. and Germany is reverting primitively and Gothically. Atavistic tendencies can be seen with the arrival of compulsory vaccination and vaccine segregation. Austerity unleased dark forces, and there is no genuine social democratic corrective in sight. The Weimar republic ripples through the ages.

    Feature Image: Joseph Goebbels views the Degenerate Art Exhibition.

  • Lessons From the Great Depression (I)

    This is the first instalment of a three part essay on the legacy of the Great Depression..

    The Great Depression began in 1929, leading Wall Street bankers literally to throw themselves from windows. I was shown one such exit site on 45th Street 5th Avenue in Manhattan. Lives were destroyed as a favourable market collapsed. The fundamental point then, and now, about a favourable or unfavourable market is it is always an illusion. Smoke and mirrors.

    Bull leads to Bear and back, and that cycle since 2008 is certainly where we are again, as confidence is lost in markets and neo-liberal non-interventionism. The effect in 1929 emphasised how when America catches a cold Europe contracts pneumonia. In the 1930s, the fragile, well-intentioned experiment in Wilsonian democracy collapsed virtually overnight. Now the effect is global.

    We are now seeing unmistakable signs of stagflation and even hyperinflation, accentuated by the additional disease burden of the virus on health systems subjected to decades of sneaking privatisation; while health inequalities widen, as transnational organisations and Big Pharma – using so-called philanthro-capitalism as a front – collude at the expense of the population at large.

    The prospect looms of fuel and food shortages, decreased life expectancies – already evident before the pandemic – repossessions, and evictions, with limited support in countries without social democratic support structures.

    In terms of civil liberties, we are entering dangerous territory too, with compulsory vaccination and quarantines. A long winter is coming. And what are we to make of most non-essential court cases in the UK being adjourned until September of next year?

    The New Deal

    In 1932 at the height of its destitution, America elected its greatest ever leader the aristocratic bon vivant socialist Franklin Delano Roosevelt (FDR), who brought in the New Deal to save the country from ruin.

    In contemporary America, no such leadership exists. Biden is no Roosevelt. He is unwilling to develop a true social market. All too many in America are ‘Bowling Alone’ as communities fall apart in a digitally mediated age of social atomisation.

    The Great Depression represented a failure of the American idea of government. Apart from a few dissenters, such as the legendary Supreme Court judge Oliver Wendell Holmes, the business of America has always been business, until it goes bust.

    In a tremendous refutation of free market economics in Lochner v. New York (1903) Holmes said: ‘The third amendment does not enact Mr Herbert spencer’s social statics’

    Holmes was at least a quasi-socialist, who corresponded with Harold Laski. But neither an intellect like him or a proper social democratic deal maker and integrator like Roosevelt is evident in American politics today.

    Obama received money and recruited Goldman Sachs alumni to his cabinet which is a bit like inviting a cuckoo into the nest.

    Studs Terkel

    Hard Times

    Another Chicago native and reporter of the last century, Studs Terkel chronicled American life in his book Hard Times, which is an oral history of the Depression era. Terkel argued that ‘the worst day-to-day operators of businesses are bankers,’ and quotes one source who has fallen on hard times:

    We thought of the poor, at that time, as quite divorced from us, who were not poor. By the exercise of one’s charity, life could be made all right. You would always have the poor with you, they were the unfortunate, and you made donations. You could handle them. It was mildly unpleasant, but not fundamentally upsetting. Now, for the first time, we face the dreadful reality that we are not separated. They are us.

    And another describes a scene of acute desperation:

    They would just walk all over and kill each other. They got more than they ever need that they would just step on anybody to keep it. They got cars, they got houses, they got this and that. It is more than they need, but they think they need it, so they want to keep it. Human life isn’t as important as what they got.

    Image (c) Daniele Idini

    Worse Still?

    I fear that this collapse will be on a greater scale. Indeed, despite deprivation, life expectancies actually increased in America over the course of the 1930s, but since the turn of this century epidemiologists have been predicing a decline.

    The successful application of the ideas of the master J. M. Keynes generated a worldwide social democratic model in the wake of the Great Depression, which became the consensus before the resurgence of neo-liberalism. This has undermined humanity since the late 1970s, and its effect now appear irreversible, given the absence of an alternative Communist model that compelled even governments devoted to capitalism to maintain a basic standard of living and healthcare.

    In contrast, the neo-liberal model of marketisation of human activity has intruded into all sectors of life. This has denuded and in some cases destroyed what Habermas describes as the public sphere.

    A set of unworkable ideas have spiralled out of control, and are generating a disaster. Liberal democracy is failing and becoming unworkable. In effect, the End Of History is the acceptance of discredited ideas, which have led us to this impasse.

    Capitalism is not working because capitalism is not allowing people to work. Joseph Stieglitz, a former economist for the World Bank remarked: ‘Socialism for the rich capitalism for the poor.’ And increasingly basic liberties are being sacrificed at the altar of security.

    Artistic Response

    More than statisticians or economists, artists convey the individual effects of world historical events such as the Great Depression.

    Although written in 1906, Upton Sinclair’s The Jungle is one of the core texts of the Depression, demonstrating the appalling work conditions in the Chicago meat packing industry. Many of his works including Oil, which became the film with Daniel Day Lewis ‘There Will be Blood’ attack unbridled capitalism and its depressing effects on the human spirit.

    Two crucial quotes from The Jungle are as follows:

    The rich people not only had all the money, they had all the chance to get more; they had all the knowledge and the power, and so the poor man was down, and he had to stay down.

    And

    Into this wild beast tangle these men had been born without their consent, they had taken part in it because they could not help it; that they were in jail was no disgrace to them, for the game had never been fair, the dice were loaded. They were swindlers and thieves of pennies and dimes, and they had been trapped and put out of the way by the swindlers and thieves of millions of dollars.

    Sinclair paints a familiar scene, now throw in the disinformation of our post-truth universe and you have a neo-liberal Molotov cocktail. At least at that time there was vibrant social commentary, and a less captured media.

    All little lives need protecting as Sinclair and above all John Steinbeck in his portrayals of the Okies in dustbowl America clearly recognised. His great novel The Grapes Of Wrath depicts a migration from the dustbowls of Oklahoma to California, which turns out to be no Promised Land, as any unionization or collective action is supressed, just as has been the case over the last thirty years.

     

    More relevant than even Sinclair or Steinbeck as an evocation of the Depression-era in America is a book by James Agee, and photographer Walker Evans called Let Us Now Praise Famous Men, first published in 1941. The phrase originates in the Jewish religion. The complete sentence is: ‘Let Us Now Praise Famous Men and the fathers that beget them.’

    The book, partially governmentally funded, chronicles dustbowl America. Evans adds the pictorial record of the devastation wreaked by the great economic depression in the dustbowl.

    From the pictures of Walker Evans it is noticeable how grim the faces are. The anguished expressions on children is particularly harrowing. Lives lost by neglect and the degradation of poverty.

    It’s A Wonderful Life

    Austerity

    It is well documented how austerity in our present age has killed people by stealth through the gradual removal of social supports. Lawyers and NHS workers might share the same fate. Whatever ramparts of social protection that previously existed are being whittled away by Covid. And

    Any yet we cannot give up. Produced and directed by Frank Capra in the wake of World War II, ‘It’s a Wonderful life’ is about a good banker memorably played by Jimmy Stewart, who helps people to build new homes.

    Capra, made many great films, but ‘It Happened One Night,’ which came out at the height of the Depression captures a spirit a popular spirit of defiance. So there is cause for optimism in poor folk.

    Featured Image: Lunch atop a Skyscraper, Charlie C. Ebbets, 1932.

  • Socio-Economic Rights Must Be Vindicated

    The noted American historian, and Putin critic,Timothy Snyder’s recent text Our Malady: Lessons in Liberty and Solidarity (2020) is a cri de coeur against almost non-existent healthcare rights in the U.S. – which the pandemic brought into sharp focus. The cossetted Yale professor saw the light, as his country failed to cope.

    Our Malady is about health care, but it is also an example of confessional literature about how health care provision, or lack thereof, begins to affect even those that are putatively privileged. The pandemic laid bare the limitations of the neoliberal order. But it is not just about healthcare, and not just about the United States, as the pandemic lays waste to income structure, life expectancies and perhaps a whole species’ expectations of the good life.

    We urgently require legal arguments in terms of justiciability, resource allocation and clarification of the limits and extent of judicial powers to enforce social and economic rights.  These arguments are no longer of cautious relevance given the gathering storm we confront. This is not the time for legal casuistry, or politeness either.

    https://vimeo.com/426871719

    In terms of the consensus as to what these rights are let me sketch a list, all of which are denuded or under threat:

    1. A right to adequate nutrition.
    2. A right to clean drinking water, and for bathing.
    3. A right to basic health care and, in particular, to emergency treatment.
    4. A right to housing or shelter; alongside a complimentary right to resist arbitrary eviction.
    5. A right to a minimum or adequate standard of living.
    6. A right to social security, leading to universal basic income.
    7. A right to a healthy environment, including air quality.
    8. A right to education, up to third level.
    9. A generalised right to dignity and self-expression in terms of expressing one’s identity.
    10. A right of a country to development.

    Crucially, there is a lively discussion as to which of such rights must be progressively realised, and which have a minimum content that are immediately realisable. Thus, the right to health care, both domestically and internationally, is progressively realisable, subject to resources.

    A right to emergency health care, however, is a minimum content right with direct enforceability, if justiciable.

    Similarly, the right to shelter is progressively realisable, but the international consensus is that forced or arbitrary evictions are directly enforceable again, if justiciable.

    Social and economic rights, in fact, have a long intellectual pedigree. Indeed, they are even evident in Thomas Hobbes’s enumeration of Natural Rights. Ancient Greek philosophers also identified such fundamental natural rights as inherent to membership of a polity.

    Eleanor Roosevelt with the UN Universal Declaraion of Human Rights.

    The proposal to include them in the UN Charter was aborted by representatives of the developed world. They were reconstituted in the 1966 UN Covenant on Civil and Political Rights, but with limited effectiveness, even allowing for recent rights of individual petition. Now amidst a growing convergence between developed and developing societies in the neoliberal order, we are increasingly all in the same boat.

    Right to Life

    The Indian Supreme Court decision in Olga Tellis v. Bombay Municipal Corporation concerned public interest litigation by thousands of pavement dwellers of Bombay city.

    The plaintiffs argued that they could not be evicted from their squalid shelters without being offered alternative accommodation. They further argued that they had chosen a pavement or slum to live because it was nearest to their place of work, and that evicting them would result in deprivation of a right to a livelihood.

    The petitioners were to be evicted under the Bombay Municipal Corporation Act, which empowered the Municipal Commissioner to remove encroachments on footpaths or pavements over which the public have a right of passage or access.

    Olga Tellis, Ex Editor of Sunday Observer & Asian Age. Source YouTube.

    The relevant article of the Indian Constitution (modelled on Article 45 of the Irish Constitution) excludes the Directive Principles from judicial cognisance, yet the court opined, in finding that the right to life itself was informed by the Directive Principles; that Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards ensuring that citizens have the right to an adequate means of livelihood.

    The court concluded that if there is an obligation upon the State to ensure citizens enjoys an adequate means of livelihood and the right to work, it would be an exercise in pedantry to exclude the right to livelihood from the content of the right to life.

    The judgement thus expanded the right to life guaranteed under Article 21 of the Indian Constitution to include within its scope the right to livelihood, which in this context translated into the right to be allowed to remain on the pavements.

    More remarkably in People’s Union for Civil Liberties v. Union of India & OR’s (2003), India’s Supreme Court derived the right to food from the right to life and ordered that that the Famine Code permitting the release of grain stocks in times of famine be implemented.

    The court ordered that the grain allocation for the food to work scheme be doubled and financial support for schemes be increased; that ration shop licensees stay open and provide the grain to families below the poverty line at a set price; that publicity be given to the rights of families below the poverty line to grain; that all individuals without means of support (for example older persons, widows, disabled adults) be granted an Anthodia Anna Yojana ration card for free grain; and that State governments should progressively implement the mid-day meal scheme in schools.

    In terms of stretching the bounds of acceptable judicial intervention this case could not be more dramatic, as the Court utilised mandatory policing orders and even inspectors in the field to ensure compliance with their orders, which have spread nationwide.

    With inflation in food prices already evident in the wake of the pandemic, will our judicial authorities oblige often reluctant, and even compromised, executive authorities to intervene in the market, and avert shortages? And in Ireland will the Court overcome a reluctance to vindicate a right to housing as part of a generalised right to life?

    Canadian Dissenting Opinion

    In Canada a similar conclusion that social and economic rights inform the content of the right to life is evident in a dissenting opinion in the Canadian Supreme Court case of Gosselin v. Attorney General of Quebec (2004).

    The case concerned the denial of unemployment assistance to those under thirty-five, who could do a form of workfare in lieu. The court addressed issues pertaining to discrimination and the right to life and security of the person under the Canadian charter. The majority found the law justifiable and in Thatcherite terms as an incentive for the young to work. “Get on your bike”, as Norman Tebbit would put it.

    Judge Louise Arbour dissented however, as indeed did Mr Justice Lahreux Herbe. Arbour J. derived a right to minimum social assistance from the right to life and indeed security of the person under Section 7 of the Charter, and drew a prudential distinction between corporate-commercial economic rights and economic rights fundamental to health and human survival.

    He indicated that the appeal makes it obvious why ‘those economic rights fundamentals to human life or survival’ should not be treated as akin to corporate commercial economic rights.

    Simply put, the rights at issue here are so intimately intertwined with one’s basic health (and hence ‘security of the person’) – and, at the limit, even of one’s survival (and hence ‘life’) — they could readily be accommodated under section 7 rights of ‘life, liberty and security of the person’, without the need to constitutionalize ‘property’ rights or interests.

    Notably, Arbour J also links the right to health to the guarantee of security of the person. He argued the expansion of the right to life in this fashion gave content to this right, which is to be protected in such a fashion so as to invest the State with a positive duty to protect life.

    Little shop on the main street of Dukathole, South Africa.

    South African Experience

    It might be noted that the South African experience is different in that social and economic rights are textual and thus inherently justiciable, with the word dignity mentioned in several places.

    The relevant housing provision explored in Government of the Republic of South Africa v Grootboom (2000) is Article 26 whereby:

    Everyone has the right to have access to adequate housing. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

    The South African Constitution also specifies an immediately enforceable specific minimum right against forced or arbitrary evictions. Such a right entails:

    1. Meaningful consultation prior to eviction.
    2. Alternative relocation if eviction proceeds.
    3. No eviction to proceed unless the land is being put to productive use.

    Nonetheless, the South African Courts have set down limits for their review and in general such rights are in the text of the document to be progressively realised.

    In Subramani v. Minister for Health (1997) for example the South African Supreme Court was very explicit about the large margin of discretion it would give to the State to set its budget.

    It also states that the court: ‘will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities.’

    Sachs J went further stating that:

    In open and democratic societies based upon dignity, freedom and equality, the rationing of access to life-prolonging resources is regarded as integral to, rather than incompatible with, a human rights approach to health care.

    However, if decisions taken are deemed unreasonable then the South African courts will step in. Thus, in the Minister of Health v Treatment Action Campaign (2002) and in Azbuka and Others v City of Johannesburg (2009) the extent of the right to water was litigated in South Africa after the case arose in Soweto.

    Justice Oregon writing for the Constitutional court found the City’s free basic water policy of twenty-five litres per person per day to be reasonable under section 27(1) of the Constitution, and that the introduction of prepaid water meters to be lawful, procedurally fair, and not unfairly discriminatory.

    The Court noted that the City was under no constitutional duty to provide any amount of free water, but merely to take reasonable measures to progressively realise that right. It said it could not fix a minimum core amount, as this would vary in terms of personal and local circumstances and would prevent context being considered.

    It also argued that this was not a determination for a court to make, as it was properly the role of the democratic branches of government to investigate conditions, having regard to the availability of resources, and to determine achievable targets.

    Irish Housing

    In Ireland, the housing market is chronically under-supplied with affordable units, particularly in Dublin, but increasingly elsewhere too. Many local councils appear reluctant to countenance building modular homes, and the rental market is out of control and extortionate.

    David McWilliams blithely advises homeowners to step away from the market, as there is no security for the mortgaged or rentier class, but for most finding a home to live in is not an investment.

    The Irish State is also tolerating rampant evictions by banks and Vulture Funds and negligently permitting unfair commercial practices to occur, often in breach of consumer protection.

    Thus, lenders have reneged on agreements bartered with consumers at a time of high ostensible economic prosperity by neglecting a contractual obligation to revert the consumer to a tracker mortgage after the expiry of a fixed rate period, or upping interest rates to the highest in the Eurozone, often aimed at those seeking to exit the country.

    Thus, lending institutions with no interest in Ireland such as Danske Bank and The Bank of Scotland simply left the room and disposed of their assets, hiking up the mortgage interest rate payments as they left and/or selling assets off to Vulture Funds.

    Ulster Bank has followed them out the door, while citizens are thrown out on the streets in spite of the pandemic.

    The old cry of the tenant farmer for the 3Fs: Fixity of Tenure; Free Sale and a Fair Rent falls on deaf ears in the era of the Vultures.

    The Sinnott Case

    In the Sinnott case (2001), comprising judgments from all seven members, the Supreme Court was asked inter alia to adjudicate on the legality of mandatory orders made in the High Court by Judge Peter Kelly. This precedent remains an important brake on the capacity of the Court to vindicate the right to life – which includes a right to shelter – of Irish citizens.

    In a leading judgment for the majority Adrian Hardiman, following a High Court decision of Justice Declan Costello in O’Reilly v Limerick UDC (1989) distinguished between commutative and distributive justice, the former bearing on relations between individuals such as found in contract and tort, with the latter involving the distribution of the resources of the State.

    In contrast to commutative justice which Hardiman considered central to the Court’s function, he held that the exercise of the Court’s jurisdiction over distributive justice was repugnant to the Separation of Powers.

    Despite Justice Costello demonstrating a willingness to countenance distributive justice in the subsequent case of O’Brien v Wicklow District Council (1994) Hardiman only brought to bear his arguments in O’Reilly, and sought to elevate non-justiciability to a constitutional principle.

    He said that the apportionment of resources ‘would lead the Courts into the taking of decisions in areas in which they have no special qualification or experience’; and were a judge to engage in ‘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.’ He did, however, allude to generalised ‘human rights to earn a livelihood and hold property.’

    It would appear to have been disingenuous for Hardiman to deny jurisdiction on the grounds of judicial incompetence in budgetary affairs. Detailed financial resolutions are, after all, already executed in the commercial arena. The test is one of proportionality, as the South African case law demonstrates.

    A paramount right to life under Article 40.3 should now require the Court to make mandatory orders, interceding on behalf of citizens whose health and life is threatened by this Housing Crisis, particularly in the presence of contagious disease. Where the executive and legislature fail to vindicate a right to life the Court must surely assume responsibility.

    The Harp needs more than tuning…

    A Constitutional Challenge

    To deal with homelessness and affordable housing a challenge needs to be made through the courts to establish a right to housing.

    The Irish Constitution through Article 45 and a generalised right to life contains minimum rights against forced or arbitrary evictions.

    Such a right should lead inter alia: to meaningful consultation begin given prior to any eviction; alternative relocation if eviction proceeds; no eviction proceeding unless the land is being put to productive use.

    An arbitrator should also be able to probe into what banks or Vulture Fund intend to do with this vital infrastructure, fundamental to the lives and livelihoods of citizens.

    Any arbitrator would of course reject spurious defences involving colossal amounts of borrowings, but should achieve a re-calibration of the system. establishing some equality of arms in the process, now desperately needed.

    Shelter from the Storm

    Without adequate shelter no one can live a dignified existence. A home – a place of one’s own – is intrinsic to the good life we have a right to expect. But housing is only one issue.

    Our social structure is unravelling through the hidden hand of American and Canadian Vulture and Cuckoo Funds. In the dystopian aftermath of the Pandemic, and Screen New Deal, once vibrant communities are fracturing, and social atomization is increasing apace.

    In the urban wastelands, we have entered the territory of Chile under Pinochet during the 1970s as Ireland becomes a test case for how much a people can endure.

    Salvador Allende in 1972.

    In her recent novel A Long Petal in the Sea (2019), Chilean novelist Isabel Allende – a distant cousin of the murdered President Salvador Allende – describes the scene in Chile at the time, bearing increasing resemblance to our increasingly dysfunctional society:

    He called to tell them that on the surface the country was modern and prosperous, but one only had to dig down a little to see the damage underneath. The degree of inequality was staggering: three-quarters of the wealth was in the hands of twenty families. The middle class survived on credit; there was poverty for the many and opulence for the few; shantytowns contrasting with glass skyscrapers and mansions behind walls. Wellbeing and security for some; unemployment and repression for others. The economic miracle of recent times, based on absolute freedom for capital and a lack of basic rights for workers, had burst like a bubble.

    Similarly:

    The military government had decided public services should be in private hands. Health was not a right, but a consumer good to be bought and sold. In those years when everything that everything had been privatized had been, from electricity to airlines, a plethora of private clinics had sprung, with state-of-the art buildings and facilities for those who could afford them.

    One thinks of The Beacon Hospital and other facilities reserved for Ireland’s wealthy health consumers.

    Life depends on livelihoods, now threatened by disproportionate measures. There must be an alternative. Otherwise, suicide, shortened lives, poverty, inequality, social exclusion, and social fragmentation await, leading to fascism and extremism. In this respect, COVID-19 has been the perfect storm of opportunism, or a coalition of interests.

  • Shakespeare’s Wisdom in Troubled Times

    As a barrister I am given to quoting from Shakespeare’s plays in closing speeches. This may seem pretentious, but I find his acute observations on the human condition continue to speak to juries, and judges. He remains highly relevant to legal education, and indeed the practice of law. I would go so far as to say that a good knowledge of his work provides a real advantage to any practitioner.

    William Shakespeare’s Birthplace.

    Stratford-upon-Avon

    Recently, I was delighted to have the opportunity to appear in a rare in-person trial in Royal Leamington Spa, which is in Shakespeare’s home county of Warwickshire. I recalled John Betjeman’s poem about dying in the town, whose name conjures images of Bertie Wooster on a bucolic retreat:

    oh, you know that the stucco is peeling.
    Do you know that the heart will stop?
    From those yellow Italianate arches
    Do you hear the plaster drop?

    Times have changed. To my chagrin, Leamington Spa is not actually a spa town – any longer at least – but is just a short hop from Stratford-on-Avon, Shakespeare’s birthplace, where I stayed for the duration of proceedings.

    The house where Shakespeare was born was previously an ale house and is now a museum. Nearby, in The Holy Trinity Church, lies his grave, which contains a stern warning that his bones should remain in situ.

    Unfortunately, the well-preserved Anne Hathaway House was closed for the duration of my stay, but the exterior and gardens were at least visible. Likewise, the complex of theatres – home to the Royal Shakespeare Company – were also no go in this bleak period for the performing arts.

    Shakespeare himself often confronted the closure of puppet shows for sowing subversive ideas as Puritanism gained ground, as documented in James Shapiro’s, 1599 A Year in the Life of William Shakespeare (2005) and 1606: William Shakespeare and the Year of Lear (2015).

    Shakespeare’s era was marked by recurring plague, tyranny and civil strife, themes according to Stephen Greenbelt’s Tyrant: Shakespeare on Politics (2018) the Bard approached obliquely, for fear of persecution. Under conditions of tyranny, public art may still be an outlet for mockery of the powerful. Thus we find in Percy Bysshe Shelley’s ‘Ozymandias’

    Half sunk a shattered visage lies, whose frown,
    And wrinkled lip, and sneer of cold command,
    Tell that its sculptor well those passions read

    In what follows I recite some of Shakespeare’s lines that inform my understanding of our present world.

    Neither a borrower nor a lender be. (Polonius, Hamlet)

    In the light of the bailing out of toxic banks – socialism for the mega rich – and the infliction of austerity, being indebted now brings serious dangers. With so much crime linked to social exclusion and poverty, it is as if we are returning to an era of Debtors’ Prisons, ubiquitous in Shakespeare’s day.

    The late David Graeber’s excellent book Debt: the First 5,000 Years (2011) precisely illustrates how debt, and now student debt in particular, is creating a permanent rentier class with no educational outlet for upward mobility, and low prospects of home ownership, at least for those who don’t have access to the bank of Mum and Dad.

    The power of bankers in contemporary society should lead to consideration of The Merchant of Venice, which, apart from dreadful antisemitism – Shakespeare often expressed the prejudices of his day – provides a searing attack on the sin of usury, the existence of which is conveniently ignored by far right Christians today.

    In the play, Portia (Bassano’s betrothed who finds himself in a spot of bother after taking on a debt on unfavourable terms from Shylock) presents herself in court, disguised as a male lawyer, and pleads for mercy against the enforcement of the bond, which is the extraction of a pound of flesh.

    Shylock and Portia (1835) by Thomas Sully

    In a famous passage she argues:

    The quality of mercy is not strained, it dropped as the gentle rain from heaven upon the place beneath: it is twice blessed, it blessed him that gives, and him that takes, tis mightiest in the mightiest, it becomes the throned monarch better than his crown, His sceptre shows the force of temporal power, the attribute to awe and majesty, wherein doth sit the dread and fear of kings: But mercy is above this sceptred sway, it is enthroned in the heart of kings, it is an attribute to God himself; and earthly power doth then show likes god’s, when mercy seasons justice…

    Shylock responds with a narrow vision of justice that sadly is all too familiar in our time of dispossessions:

    I crave the law, the penalty and forfeit of my bond.

    Portia then shifts ground and cleverly argues that the bond should be enforced but:

    The bond gives thee there no jot of blood – The words expressly are a pound of flesh … Then take they bond, take thou thy pound of flesh, but in the cutting it, if thou dost shed one drop of Christian blood, thy lands and goods are by the laws of Venice confiscate … For as thou urge justice, be assured, thou shalt have justice more than thou deserts.

    In this morality tale, therefore, Shylock – unlike our contemporary bankers in most cases – is forestalled in his extraction of the pound of flesh. If only such arguments against the extraction of financial flesh were available to barristers defending the disposed today.

    Three daughters of King Lear by Gustav Pope

    The True Criminals

    So who are the true criminals today? Shakespeare offered an answer through the medium of the wise Fool in Kind Lear:

    What art mad. A man may see how this world goes with no eyes. Look with thine ears see how yon justice rails upon yon simple thief. Hark in thine ear, change places, and handy dandy, what is the justice which is the thief.

    Governments bail out Goldman Sachs and other banks. There are no repercussions for their reckless lending, save in Nordic countries like Iceland. But If Jean Valjean steals a loaf of bread, they pursue him to the ends of the Earth to extract the pound of flesh.

    Similarly, if you become a whistle-blower and reveal the machinations of the powerful such as Julian Assange, then you are turned into a criminal, while Messrs Blair, Kissinger, and indeed Varadkar, are never forced to face the music.

    Amanda Knox

    The lady doth protest too much, methinks, (Hamlet, Act 3, Scene 2).

    Stacey Schiff’s Witches: Salem 1692 (2015) observes how the hysteria of witch hunts appear to represent a sublimation of pre-existing grievances, and envy. This remains the case for modern day witch hunts such as that directed against Amanda Knox, which have been highlighted by the Innocence Project.

    The book makes clear that children can be manipulated into holding false belief, even to the extent that they incriminate themselves. False allegations are also linked to hysterical parents or authority figures. As occurred in Amanda Knox’s case, young minds are easily turned to mush by persistent questioning, fear of authority, and interaction with nefarious police officers and social workers.

    This is what is referred to as falsely implanted memory syndrome, on which subject Elizabeth Loftus and Maggie Bruck are experts.

    Categorising someone as a witch or a warlock also reflects jealousy if that person holds a gift you do not possess. Seen in Freudian terms, it is a form of transference of perceived inadequacies.

    All that glisters is not gold. (The Merchant of Venice, Act 2, Scene 7)

    This zeitgeist is one of post-truth amorality, a phenomenon with long antecedents. In King Lear we hear that ‘a scurvy politician seems to see the thing thou does not’; while Henry VI speaks of: ‘Stuffing the ears of men with false reports’, which seems curiously relevant to Covid Times.

    Purveyors of nonsense and incomprehensible prose – the structuralists and post-modernists who took over the universities – represent a movement, or grouping, united in their rejection of universal values. Relativism leads to the dismissal of evidence, rationality, science, rigour, precision and all the integrative forces that tie society together, as Noam Chomsky has observed: ‘if I am missing something, then show me what it is, in terms I can understand.’

    The first point to note about the post modernists nonsense is that it has encouraged a distrust of the truth and an atmosphere of looseness and imprecision, wherein any old argument, or moral position, is accorded equal weight.

    In 2005 the late David Foster Wallace observed that this created an epistemic free-for-all in which any truth is seen from the vantage of perspective and agenda.

    Relativistic and structuralist ideas such as the indeterminacy of texts, alternative ways of knowing and the instability of language fed into Trump and his aides saying that every word he utters should not be taken literally. Just as a text by Derrida could contradict itself, similarly Trump can jump from one inconsistency to the next.

    The work of The Innocence Project is littered with examples of perjured evidence, false and fabricated claims and cognitive and confirmation bias by experts or pseudo experts, which have led to wrongful convictions. All too many innocent people are incarcerated on the basis of lies. With the embrace of subjectivity, we are celebrating opinion over knowledge, feelings over facts.

    Confirmation bias applies where people rush to judgment, and give into their prejudices, rather than evaluating evidence.

    According to Evan Davies in his recent book Post Truth, one aspect of all this bullshit is a desire to believe something unreasonable to be true. Pope Francis sagely remarked that ‘There is no such thing as harmless disinformation: trusting in falsehood can have dire consequences.’

    To thine own self be true, and it must follow, as the night the day, thou canst not then be false to any man. (Hamlet, Act 1, Scene 3)

    In general, social media is weaving a web of deceit and destroying the social fabric through lies, disinformation, smears, and character assassination. Pierre Omidyar a founder of eBay argued that the monetization and manipulation of information is rapidly tearing us apart.

    Trolls and bots were unleased by Trump, Bannon, and Cambridge Analytica to spread disinformation in the U.S presidential election, undermining democratic institutions and fact-driven debates.

    Now the social media platforms have moved on to shilling for Big Pharma – laying the ground for a Screen New Deal – while shutting down alternative assessments of the pandemic, and unprofitable treatments.

    It leads me to an unhappy conclusion that we increasingly developing a generation of technocratic fascist, selfish, materialistic ultra-conformists receptive to post-truth deception. The silos they occupy reinforce their prejudices. It is less important now to establish the truth than to ask whose side you are on.

    As Cicero, a minor character in Julius Caesar remarks:

    Indeed, it is as strange, disposed time but men may construe things after their fashion clean from the purpose of things themselves.

    Lies in fact have become intrinsic to commercial and business interaction. In The People of the Lie (1983) Scott Peck contends that Evil is untruth, undermining life and liveliness. Such people operate by covert means. Evil people, Peck argues, scapegoat others, and cover up their misdeeds. They prevent the rest of us from making informed choices. Evil is also linked to a self-image of respectability and, as Peck defines it, the exercise of coercive power, often by authority figures. Evil is also surprisingly obedient to authority.

    In contrast, in times of stress those who genuinely good people, even in times of acute stress, do not desert principles.

    Hannah Arendt presaged our Brave New World.

    The ideal subject for totalitarian rule is not the convinced Nazi or the convinced communist, but people for whom the distinction between fact and fiction (the reality of experience) and the distinction between true and false (standards of thought) no longer exists.

    Cry “havoc!” and let slip the dogs of war, (Mark Antony, Julius Caesar)

    The film, Wag the Dog witnesses the beginning of a fake war. Today, apart from military engagements that are generally played out on our television screens – such as Iraq and Afghanistan – there are new types of fake wars. The War on Drugs is a smokescreen that obscures failure to deal with the root causes in poverty and austerity. Now the war on the virus – a disproportionate reaction to a significant but not overwhelming public health crisis – has generated unprecedented panic.

    People are told to comply or face gruesome death. But how safe are we really in these circumstances? We will not be safe in authoritarian police states with restrictions on liberty, freedom of movement, privacy and associational or community ties. Nor will we be necessarily safe from a plethora of hastily tested pharmaceutical products, enforced by so-called vaccine passports.

    How to subjugate the world population? Create a hyper real sense of emergency. Engender panic, leading to compliance and deference

    Should we disassociate ourselves from the unvaccinated? Even putting it in these terms shows how admen dominate the discourse.

    The disproportionate response to the pandemic represents a fascist creep. People are desensitized to loss of liberty once they are in fear of their lives, and increasingly dependent on the state for the pile of gruel it so generously provides, having removed any prospect of employment for hundreds of thousands in precarious work.

    Meanwhile, the corporate law firms and mega rich have won big in our new version of disaster capitalism using Modern Money Theory to oil the chains of patronage.

    Thus, whether centrally orchestrated, or more likely arising out a coalition of vested interests, and made possible through an increasingly uneducated, desperate and compliant population, COVID-19 has brought us the Shock Doctrine par excellence.

    Procession of Characters from Shakespeare’s Plays. Artist unkown.

    The evil that men do lives after them; The good is oft interred with their bones. (Mark Anthony, Julius Caesar)

    The problem of evil in our times is embodied in extremism, fundamentalism, draconian laws, high consumerism, and the negation of the rule of law. Today, unselfish communal behaviour go unrewarded, while the innocent are framed.

    What is left of compassion, sincerity, truth, community, and optimism? Well at least we can still find it in the poetry of Shakespeare.

    Shall I compare thee to a summer’s day?
    Thou art more lovely and more temperate:
    Rough winds do shake the darling buds of May,
    And summer’s lease hath all too short a date.
    Sometime too hot the eye of heaven shines,
    And often is his gold complexion dimmed.
    And every fair from fair sometime declines,
    By chance or nature’s changing course untrimmed.
    But thy eternal summer shall not fade,
    Nor lose possession of that fair thou owls.
    Nor shall death brag thou wander in his shade,
    When in eternal lines to time thou grow’s:
    So long as men can breathe or eyes can see,
    So long lives this, and this gives life to thee.

    Put simply, love conquers all. Or should. The Bard of Avon has much to say in these troubled times.

    Featured Image: Lear and Cordelia by William Blake.

  • Czech Intellectuals: Kafka and Kundera

    I was briefly a Professor of Law and International Relations at the Anglo-American University in Prague, near where the Jewish, German-speaking Kafka was born and raised.

    Before arriving, I had acquired a superficial knowledge of the main sights, which are somewhat deceptive and largely unrewarding in that rich tapestry of a city – of which it has been written that by the end of the nineteenth century, ‘deprived of political significance, abandoned by the aristocracy, commercially and industrially backward, [it] had the feeling of an industrial city, suffused by the elegiac atmosphere of a glorious past.’[i]

    Apart from heavy industry – the Czech Republic retains a glorious rail infrastructure – the Prague of that period can be likened to Dublin in the wake of the 1801 Act of Union, after which it fell into terminal decline. And, indeed, Arne Novak’s description of the Czech national temperament might apply to the Irish literati: ‘continually fluctuating between two poles: on the one hand a self-righteous over-estimation of everything native, with a stubborn clinging to ancient privileges; on the other hand, impatient curiosity about the latest foreign literary fashions, and a readiness for slavish imitation.’[ii]

    Nonetheless both nations, dominated by two cultural blocks – the British Empire and the European Catholic Church in the case of the Irish; Germany or Austria and Russia or the Soviet Union in the case of the Czechs – have produced literary titans, who have railed as much against native subservience as against colonial usurpers.

    Thus, in James Joyce’s Ulysses (1922) Stephen Daedalus calls himself ‘the servant of two masters,’ indicting ‘The imperial British state’ and ‘the holy Roman catholic and apostolic church’, while Jaroslav Hašek’s The Good Soldier Švejk (1923), also written in the shadow of the Great War, remains one of the great anti-war novels.

    In this article I focus on two Czechs authors, the aforementioned Franz Kakfa, and Milan Kundera whose response in different epochs, to imperialist oppression, provide important insights for contemporary challenges.

    Prague Spring

    It is in Prague’s shadowy labyrinth of side streets, with a rich diversity of specialist shops and bookstores – fast disappearing from other urban conurbations – that one finds the real gems. Apart from brief excursions, my knowledge of the Czech Republic had mostly been gleaned from cinema and literature of a society that has endured the evils of both Nazism and Communism, while managing to preserve its civilisation.

    This rich inheritance can be found in the gloriously satirical 1960s films of Milos Foreman such as ‘The Fireman’s Ball’, which provides an anatomy of the soul of man under Communism.

    Milan Kundera 1929-

    More importantly, there is the contemporary work of that most deserving living candidate for the Nobel Prize, the Czech writer, Milan Kundera. His novels are a crash course in uninhibited eroticism, vastly different culturally to an Irish sensibility. They offer textbook exercises in a form of European decadence alien to the repressive Irish mindset, and our smutty obsession with sexual activity – not undivorced, I believe, from the extremities of sexual perverted crimes that dominate newspaper headlines in an increasingly hedonistic society.

    Kundera’s novels, in translation at least, are written in an elegant lapidary style. There is a lot of dark laughter in those books, not unlike the Irish lachrymose sense of humour and despair, found in Flann O’ Brien especially.

    One such example is Kundera’s exposition on litost, ‘an untranslatable Czech word’, in The Book of Laughter and Forgetting:

    Its first syllable, which is long and stressed, sounds like the wail of an abandoned dog. As for the meaning of this word, I have looked in vain in other languages for an equivalent, though I find it difficult to imagine how anyone can understand the human soul without it…

    Kundera expands on its meaning by way of anecdote.

    She was madly in love with him and tactfully swam as slowly as he did. But when their swim was coming to an end, she wanted to give her athletic instincts a few moments’ free rein and headed for the opposite bank at a rapid crawl. The student [the boy] made an effort to swim faster too and swallowed water. Feeling humbled, his physical inferiority laid bare, he felt litost. He recalled his sickly childhood, lacking in physical exercise and friends and spent under the constant gaze of his mother’s overfond eye, and fell into despair about himself and his life. They walked back to the city together in silence on a country road. Wounded and humiliated, he felt an irresistible desire to hit her.…and then he slapped her face.

    His most prescient points concern historical amnesia and the onset of tyranny. As he put it: ‘The struggle of man against power is the struggle of memory against forgetting.’

    Forgetting

    The internet and social media are fast becoming a tool of forgetting or non-remembrance through the deluge of unfiltered information. The greatest area of amnesia is the subject that Milan Kundera dedicated his career to preserving, namely the horrors of Communism, which finds strange echoes in our current transition from neoliberalism to neoconservatism.

    The ‘Liberation’ of Prague by Soviet Forces in 1945.

    Kundera described what passed for public discourse under Communism as political kitsch in his novel The Unbearable Lightness of Being. This emanates from an aesthetic ideal ‘in which shit is denied and everyone acts as though it did not exist’. ‘Kitsch’, he argued, ‘is the aesthetic ideal of all politicians and all political parties and movements.’

    It is the dream scenario of the spin doctor where the press is utterly compliant. He gives the example of politicians kissing babies as an obvious expression political of kitsch.

    In Kundera’s view political kitsch is not dangerous in itself, and most politicians cultivate a clean-cut, artificial, image. The real danger lies in totalitarian kitsch such as that encountered by the character of Sabina, who recalls the Communist parades of her youth, which projected an idealised vision of the worker removed from the corruption, suspicion and cruelty that infected her society. Indeed, it was said in Czechoslovakia that love for one’s family required theft in the course of one’s professional life.

    Kundera contrasts what looks suspiciously like de-platforming, or cancel culture, with the plurality of voices that he believed still lay in Western democracies:

    Those of us who live in a society where various political tendencies exist side by side and competing influences cancel or limit one another can manage more or less to escape the kitsch inquisition: the individual can preserve his individuality. The artist can create unusual works. But whenever a single political movement corners power, we find ourselves in the realm of totalitarian kitsch.

    It begs the question whether the Internet has reawakened this “totalitarian kitsch.”

    Air-brushed from History

    In the same work Kundera describes a moment in Prague in 1948 amidst heavy snow in which the bareheaded Communist leader Klement Gottwald, while giving a speech in Wenceslas Square, was handed a hat by his comrade Vladimír Clementis. Four years later Clementis was purged – charged with treason on trumped up charges and hanged. The propaganda section literally airbrushed him out of history by removing him from the photograph that is the title image for this article. Ever since Gottwald has stood on that balcony in splendid isolation.

    Where Clementis once stood, there is thus only a bare wall. All that remains of him is the cap on Gottwald’s head. Similarly, to get rid of an enemy today, you do not have to prove anything against them. Instead, you use the internet or family courts, or indeed a compliant media, to generate conflicting accusations and contradictory data. You sow confusion to elevate hatred and fear until that enemy is either banned from social media, their history re-written or erased from the minds of millions through smear, disposal and, in fact, apathy.

    If the struggle of man is the struggle of memory against forgetting, as Kundera put it, then we have in the cacophony of the internet a vast machine for forgetting. One that is building a new society upon the shallow, shifting sands of what Gore Vidal described as the United States of Amnesia.

    Of huge relevance to our times, Kundera said:

    The first step in liquidating a people is to erase its memory. Destroy its books, its culture, its history. Then have somebody write new books, manufacture a new culture, invent a new history. Before long that nation will begin to forget what, it is and what it was. The world around it will forget even faster.

    It is like a clairvoyant presaging our times. A pre-Facebook comment on our age of gnat-like attention spans. A world of amnesia and the distortion of history; of canned laughter and forgetting.

    Václav Havel in 1965.

    Kundera’s only modern contemporary intellectual equal, the former President of the Czech Republic Václav Havel issued a similar warning in his seminal political essay, ‘The Power of the Powerless’ (1978). The then dissident playwright and philosopher argued that empowerment requires us to ‘live in truth,’ which means facing up to the uncomfortable reality that we are not solely victims of the political and economic order we live under, but sometimes also enablers who play into its myths and cover up its lies.

    We turn the lies into truth and come to believe it is the only way to get through; the only way to survive in what we are told again and again is a ‘dog-eat-dog’ world. In a reappraisal at the end of his tenure, Havel observed how neoliberalism had created similar social dynamics to Communism.

    Franz Kafka as a young man.

    Kafkaesque

    Despite writing in German, Franz Kafka reigns supreme as the writer par excellence of Prague. He now resides like an all-enveloping spirit in Prague. In the Jewish quarter there is a rather modernist statue of him; his visage and silhouette adorn mugs and t-shirts in every tatty tourist shop. There is also an expensive and rather uninformative Kafka Museum, and a bookshop in his name.

    Above all else, there is his former house near the Castle, down from the narrow Jewish mile road. His house, now converted into a museum, is not that dissimilar to the two bedroomed artisan houses near the Four Courts in Dublin.

    Apart from writing in German, Kafka was Jewish, giving him an outsider status in the Czech Republic; historically an uncomfortable position – though not anything like as bad as it was in Poland – to be in.

    While living in Prague, it was an immense surprise to find how Germania had been expurgated from Czech culture after the War. The Czechs now speak English primarily, and Russian occasionally, despite being enveloped by German speaking territories. Still, they venerate Kafka and why not.

    Legal Conformism

    Part of my own adoration of Kafka comes from training to be a lawyer, and an expression used in a case that has dogged and at times unsettled my career: Gilligan v Ireland. (1997).

    The expression I used a ‘Kafkaesque situation’ arrived impromptu to describe what was happening, although I was aware that other Irish judges, particularly Cathal O’Dalaigh had used a similar phrase.

    In a legal context the expression conveys a situation of labyrinthian complexity, absurdity, and perversity: one where the law is traduced by procedure and injustice and has become – to use common parlance – an ass.

    Franz Kafka did not find the study of law to be an edifying experience. Indeed, according to one account cited by the legal scholar Robin West, he found it ‘had the intellectual excitement of chewing sawdust that had been pre-chewed by thousands of other mouths.’

    In Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner (1985), Robin West argues that in Kafka’s world law is alienating and excessively authoritarian, exerting in people a craving for conformity. Students have an urge to conform or obey the law. She argues:

    Kafka’s world is populated by excessively authoritarian personalities. Kafka’s characters usually do what they do – go to work in the morning, become lovers, commit crimes, obey laws, or whatever – not because they believe that by doing so, they will improve their own wellbeing but because they have been told to do so and crave being told to do so.

    Plaque marking the birthplace of Franz Kafka in Prague.

    She contrasts this negative view of the law, with the view that it facilitates the maximization of one’s own welfare, which is presented by the right-wing law and economics scholar Richard Posner:

    Whereas Posner’s characters relentlessly pursue autonomy and personal wellbeing, Kafka’s characters just as relentlessly desire, need and ultimately seek out authority.

    Further, West points out that although both Kafka and Posner see people as consenting to the various transactions they enter, for Kafka, such consent can lead to humiliating and degrading employment, sex and even death. This point is not expressly made by West, but this may be familiar to readers of The Trial. For Posner, such consent is rational and self-fulfilling. For Kafka, such consent leads to victimization.

    West thus posits a conclusion from Kafka on consensual market transactions which is far from positive:

    In all these market transactions – commercial, employment, and sexual – Kafka portrays one part consenting to a transfer of power over that party’s body, and in each instance the transfer, although consensual, is horrifying. In none of Kafka’s depictions does consent entail an increase in wellbeing … The participants are often motivated by a desire to submit to authority, not to enhance autonomy, and in each case, the authoritarian relationship they create proves to be a damaging one.

    Moreover, West examines the question of consent to law in Kafka. According to Posner, people consent to legal imperatives that are wealth maximizing. According to Kafka, they consent to impersonal state imperatives not because of wealth maximization but out of a deep-seated desire for judgment and punishment. Or one might add compliance.

    ‘The Judgment’ and ‘The Refusal’        

    Thus, in Kafka’s short story ‘The Judgment’, a son submits to death by drowning as his father has decreed. And in another short story ‘The Refusal’, the townspeople obey the colonel in charge of the town because authority has ‘just come about,’ and submit to his various denials of their petitions.

    The most dramatic example of this submission to authority is of course in The Trial, where Joseph K is arrested without having ever done anything wrong. He never learns the nature of the charges laid against him; he is arrested but not imprisoned; interrogated but never forced to appear; yet in time he passively accepts the jurisdiction of the court and the law’s authority, which results ultimately in his own death sentence.

    Finally, West relies upon the short parable ‘The Problem of our Laws’, in which Kafka informs us that law is ultimately sustained, not by force but by the craving of the governed for judgement by lawful, noble authority. It is this human craving, even more than the urge of the powerful to dominate, that sustains the illusion of certainty, fairness, generality, and justice.

    In conclusion, West derives the message from Kafka that:

    Our tendency to legitimate lawful authority – to give our hypothetical consent – may have good or evil consequences, depending upon the moral value of the legal system to which we have submitted and the moral quality of the relationship between state and citizen that our consent nurtures.

    Scepticism Towards Authority

    How much of this is of jurisprudential or indeed morally significance? First, it confirms an innate prejudice of mine which is to be at the very least sceptical of authority. Deep scepticism. Far too many people who have had no interaction with authority figures, such as police officers or indeed judges, are inclined to defer to their wishes and take what they say at face value. My experience as an Irish barrister has engendered in me the opposite instinct. Always confront, challenge authority, and never commit the cardinal error of submitting to the edicts or wishes of authority.

    Also, ask who is in authority and why they are there? Who appointed them and what agenda do they serve?

    Kafka also touches on the way procedural tangles and processes often run contrary to that elusive concept of justice. Law then should be transparent and accessible, and often it is not. Unduly complex procedures among other casuistries militate against just outcomes.

    Law of course relates to questions of punishment and both in The Trial and, above all, in the shocking story ‘In the Penal Colony’ – surprisingly neglected by West – about a perfect execution machine, the barbarism and cruelty of legal processes are there for all to see. It is frightening to see how the condemned man submits and, in some ways, enjoys the barbarity of his torture, just as occurs to the dissident in Arthur Koestler’s 1940 novel Darkness at Noon. Today we call this Stockholm Syndrome, where you empathise with your captors.

    I have always hated the death penalty and indeed torture or state sponsored cruelty, anyone who has experienced the jihadism of Roman Catholicism will know what I mean.

    Fishelson’s version of The Castle at Manhattan Ensemble Theatre, January 2002.

    Bureaucratic Nightmares

    Kafka lived under a deeply authoritarian extended Germanic state of bureaucracy and authoritarianism then ruling the Czech Republic. A Weberian bureaucracy gone mad.

    Alberto Moravia’s 1951 novel The Conformist demonstrates how a bureaucratic conformity evident in lawyers far too easily morphs into fascism. Kafka lived in a proto-totalitarian state and is often seen as someone who mystically envisages dystopian totalitarianism. In some respects, Kundera observed the completion of the projection. The full negation of the individual, and individual rights.

    Now such harbingers of dystopia are right back, for want of a better expression, in fashion and the reasons for this are obvious to anyone who looks up from their screen.

    We are in a new age of corporate fascism, with an ever increasingly authoritarian state. Mass monitoring and surveillance through artificial intelligence is dictating and controlling our choices. Ascendant right-wing extremism throughout much of Europe has drawn lessons from religious fundamentalism.

    Thus, Kafka’s arguments on the dangers of unconditional surrender to authority and acceptance of its legitimacy, as well as his arguments around how consent to authority can destroy us are important points to recall. Even in our daily lives.

    Both Kafka and Kundera urge us to challenge authority, and at the very least always ask: who is making a decision and why? Don’t look at the office, but at the man or women in control of it, and what he or she is purporting to do.

    The enlarged Kafkaesque state – in many respects experienced by Kundera – is right back in force in the coronavirus panopticon, with the vectors of evil apparent everywhere, not least in a plethora of falsely accused and indeed framed Joseph K’s. worldwide. Let us call them the dissentient.

    We have all too much faith in the law, a failing which led my friend the late Supreme Court Justice Adrian Hardiman to entitle an article on how the state falsely accused the DJ Paul Gambaccini, ‘Kafka On the Thames’; and yet faith in due process and legal fairness is one of the few values left to clutch on to.

    Kundera and Kafka are two titans of the Czech intelligentsia who have much to say in our contemporary era: be careful about unconditional obedience to authority and distrustful of legal processes; antennae should be raised to detect post truth nonsense and dissimulation; and witness how Communist totalitarianism has been replaced by another decline of the human condition: neoliberal degradation.

    Never unconditionally comply with the edicts of authority. Just say No. Do not obey orders just because they are orders. Exercise judgment.

    [i] Arne Novak, Czech Literature (translated from Czech by Peter Kussi), Ann Arbor (1976), p.170

    [ii] Ibid, p.9