Cassandra Voices

Author: David Langwallner

  • The Public Intellectual Series: Noam Chomsky

    They who have put out the people’s eyes reproach them of their blindness.
    John Milton, ‘An Apology for Smectymnuus with the Reason of Church-Government’ (1642)

    Unfortunately I just missed out on meeting one of the totemic figures of our time in Noam Chomsky. In 1997, as a Boston-based Harvard student, I was taken to visit an unprepossessing office inside an apartment block, only to find the veteran M.I.T. professor and author had left the building.

    What remains to be said about the darling of the radical anti-imperialist left?

    In my previous account of Michel Foucault, I touched on Chomsky’s revulsion towards post-modernism and moral relativism, and his acute anticipation of the post-truth zeitgeist. He was the first I think to point out that Jacques-the-lad-poseurs such as Derrida and Lacan were saying little of substance, and what they were holding forth on was nonsense on stilts.

    Chomsky anticipated how post-modernist mumbo-jumbo would be appropriated by neo-conservatives to sow a culture of disinformation. Perhaps a scientific background in formal linguistics armed him with the rigour to cut through the morass. He has frequently spoken of his dislike of deceit, and adherence to Cartesian common sense.

    Chomsky shares with George Orwell – another of our public intellectual subject-matters – a commitment to the truth and an almost mystic-like perception of how propaganda operates. This leads him into a degree of bemusement at popular culture that may come across as elitist. But he understands how a spectator democracy and a free-fall in journalistic standards has lead to Populist demagogues.

    Manufacturing Consent

    https://www.youtube.com/watch?v=EuwmWnphqII

    The effectiveness of political propaganda is managed by hegemonic media and other vectors of public opinion, which undermine democracy and promote a corporatocracy. This brought us Donald Trump rather than Bernie Sanders.

    It is what Chomsky has termed Manufacturing Consent, borrowing a term from Walter Lippmann, whose Public Opinion (1921), argued for democratic control through a specialised class or cool observers to control the agendas, manipulating public opinion by means of clever illusions and simplification.

    Chomsky borrows this insight to demonstrate how the media works through diversion and dumbing down. Popular energy is dissipated and voters infantilised.

    Interestingly, a recent highly critical account by Chris Knight called Decoding Chomsky (2016) points out that for much if not all of his career Chomsky’s science, eminently debatable, has been totally disconnected from his political engagement.

    From the outset of his career he has effectively relied on the promotion and funding of the military industrial complex, through the Massachusetts Institute of Technology (M.I.T.).

    Why? Well it seems they quite like the idea of an anti-establishment token radical on their payroll. It gives them a degree of legitimacy, at least as long as his voice is not heard too widely. Indeed, in other countries he might be regarded as a class traitor.

    Moreover, his ground breaking hypothesis of human beings possessing an innate syntactical language of deep structure, contrary to the claims of behaviourism assisted the Pentagon in an ultimately fruitless search for a computer encoded Esperanto. They were seeking a common dumbed down language that could be used for commercial and corporate purposes: a precursor to the patois of social media perhaps.

    It is important to recall that as an American academic he has had to navigate a snake pit of careerist in order to make his mark. One should recognise the constraints of working within a uniformly commercial culture that encompasses the universities.

    Knight maintains that psychologically his ab initio common-language-from-nowhere linguistic theory, and advocacy, promoted isolation, and led to a form of cognitive dissonance that influenced his political beliefs. In effect, Knight alleges, he became a neurotic at odds with the rest of society. The accusation thus is one of hypocrisy, or like Oscar Wilde’s Dorian Gray, he has been living an alternative life.

    A Picture of Dorian Gray

    Knight also maintains that when his critics maul his ideas on linguistics he reverts to ad hominem tactics, dogmatism, with counter evidence dismissed in favour of his own mystical vision, which is precisely the kind of self-evident-genius-argument I despise.

    So I am certainly not fully persuaded by his linguistic theories but convinced indeed, unlike Knight, that the institutional support has brought him unique intellectual influence and responsibility – perhaps manipulated for his own ends – but for the good of humanity: as Chomsky is a principled man.

    The Public Intellectual

    One of his very early pieces, much modified, is brilliantly written on a theme close to my heart: the responsibility of the public intellectual.

    Chomsky draws a clear distinction between the ever more prevalent academics who sing for their suppers, and parrot for promotion, and those who take the difficult path of what Albert Camus would call engagement.

    Today, value-orientated intellectuals are likely to be dismissed as troublemakers in our short term universe of disposability. The generalist is lost in the mix.

    Chomsky in fact is very conscious of how, ever since Jimmy Carter, right-wing, Christian conservatives in America have warned against the radicalisation of the young, and are now hell bent on purging radical thinkers from citadels of learning.

    The universities and the media engage in self-censorship to suit corporate paymasters. The polite-paper-paradigm meets with incredulity at the nuclear explosion of true dissidence. I discovered this under martial law-like conditions when giving a Rule of Law paper in Trinity College Dublin. On offering robust opinions I was told there would be no circulation of the paper, and another invitation was unlikely.

    In Manufacturing Consent (1988), Chomsky demonstrates how market forces and the neo-liberal agenda compel colleges and the media to select topics within defined parameters. This restricts debate and brings the nonsense of ‘balanced’ coverage, and the filtering of information with an over-emphasis on tone. Appropriate tone. Authorities fear upsetting corporate sponsors, leading to the rule of political correctness by the banal.

    More to the point, Chomsky is attuned to the independent stance of public intellectualism, which we have all but lost.

    Henry Kissinger

    Chomsky has also written about Richard Nixon’s National Security Advisor Henry Kissinger, a dangerous war criminal still in our midst, and how he exterminated or was complicit in the extermination of East Timor, which was absorbed into Indonesia during the American-backed Suharto dictatorship, with tremendous loss of life and Crimes Against Humanity.

    Still in our midst. Henry Kissinger.

    In the documentary Manufacturing Consent, like George Orwell, Chomsky is attentive to the misuse of language to justify atrocities. Thus in East Timor the invasion was code-named Operation Clean Sweep. More sotto voce language distortions to justify ethnic-cleansing, itself a term sanitising Genocide that only came into being during the Yugoslav conflict of the 1990s.

    The book Manufacturing Consent sets out clearly how American foreign policy, from Vietnam to the Bush wars, moulded the message and demonised the Other. Even if we are wrong we are right, and embedded reporters will exonerate any wrongdoing. If, like the claims of weapons of mass destruction used to justify the invasion of Iraq, the truth is damaging, we ignore it.

    Thus a world is divided into worthy and unworthy, with the lenses of the powerful never turned on themselves. Enemies are reduced to vermin to be exterminated, and democratically elected socialists like Salvador Allende in Chile in 1973 are, if necessary, removed from office. That’s because democratic socialism is contrary to American values. Better to have a son of a bitch, so long as he’s our son of a bitch. If our boys are engaged in terrorism, it is not really terrorism. If we murder vast numbers of civilians it is hardly Genocide.

    As Chomsky reminds us, democracy has to be subverted to purge the average citizen of consciousness, and the critical faculties necessary for it to function.

    ‘Socialism is contrary to American values.’

    Hegemony and Survival

    Another crucial text, Hegemony and Survival (2003) demonstrates how the elite regard democracy as, in effect, a spectator democracy. To paraphrase Alexander Hamilton, the ordinary person must be deemed irresponsible and kept within strict confines. He should not be allowed to vote in his interests, or even consider them.

    From Vietnam to the present day U.S. Imperialism has dismissed unworthy races. Those who are not a part of the twenty percent who control the planet are to be excluded and disempowered. A culture of dissent is expurgated.

    In Hegemony and Survival he sees clearly the beginning of what Stieglitz called The Great Divide (2017), and development of a lunatic neo-liberal hegemony. That divide now has led to the destruction of the middle class, and the cartelisation of wealth into ever decreasing hands

    The corporations control the press, leading to self-interested non-reportage by job preservers, reporting beyond the neo-liberal straightjacket is not permitted. The Irish Times in Dublin is a totemic exemplar of the decline of independent media.

    As he mentions in his book on propaganda Media Control (2002) state propaganda is used and supported by the educated classes in order to exclude those less fortunate from the discussion. The responsible people, which Yannis Varoufakis would call the Adults in the Room, exclude the herd from infecting their decision-making. Thus people are atomised, segregated and alone. Scholarship becomes conformist and lies beget and compound lies. Scholars who show an independence of spirit are de-frocked.

    That which the media excludes is dictated by corporate ownership and advertising paymasters, bringing stories that focus on less central issues, or infomercials masquerading as news.

    Thus the thinking public á la Cambridge Analytica is fed disinformation, dictating and influencing popular misconceptions, problems and prejudices.

    Ten facts about media control

    Chomsky summarises the ten facts of media control which I further synopsis:.

    1. Distraction: compel the public to focus on irrelevance and chatter in our Brave New World. Overload them with nonsense. Press control from Murdoch to social media augments this.
    2. Generate Problems that do not exist and do not need solving: Bail out the banks to enforce fiscal stabilisation and impose austerity on those who have no responsibility for the mess. Reinforce the message, TINA (there is no alternative) but fiscal stabilisation.
    3. Gradualism: Brexit is likely to lead to the slow death of the NHS. First deny it to non-nationals, then to the socialists… Once the British public is conditioned to the idea, pull the plug out altogether and fully privatise.
    4. It will be better in the long run if you take your medicine now. The short sharp shock of austerity. No it will not.
    5. Kill people’s critical faculties and infantalise them. The Greeks and Irish are merely children anyway. Appropriate adults in the room, in the form of the IMF, have arrived to tell you what to do.
    6. Appeal to Emotion, frenzy, hysteria and not rationality. Thus our world is being torn apart by mob orators pulling at the heartstrings.
    7. Disinform and create a sideshow. The public are being fattened up by bread and seduced by circuses of the absurd, causing us to lose sight of the real point.
    8. Pander to bland consumerism. Assure people constantly that they have never had it so good. Brexit will create unlimited prosperity. Drug people with disinformation like soma from A Brave New World.
    9. If we have acted criminally and are powerful then it is your fault and your responsibility. You are derelict because we are criminals, but we never acknowledge that.
    10. Play the person not the ideas. Then if the person is troublesome go after their relationship structure, or just make them disappear.

    Chomsky cuts against the salon culture of the Enlightenment, championed by Jürgen Habermas. The challenge lies in counteracting the disconnected memes and silo bubbles of self-interest that the world’s elite direct at us.

    Data retention

    Orwell’s idea of double speak from Nineteen-Eighty-Four dovetails with Chomsky’s significant observation that it is much more important to have less data, but to have greater understanding or indeed comprehension of what we do hold on to.

    That requirement for nuance, judgement and perspective is dissipating rapidly. We are addicted to useless information and data retention, not comprehension or understanding. We are now bombarded with a deluge of superfluous information by social media. More to the point the useless data and bricolage condition our judgment, as it must in order to survive.

    How many now join up the dots as Chomsky has and bring them into common sense utterance in simple plain speech and with social engagement? Very few. Very few from the academic community at least. Chomsky is right that the time servers and corporate drones of academia are deliberately or intellectually missing the Big Picture.

    One point he has not addressed is how the current neo-liberal rewarping of human identity is creating social atomisation and political disconnection. We are now so embroiled in what we do that we hardly ever question it or fully understand the machine behind it. We no longer have time to consider what we are doing.

    Chomsky quotes Robert McNamara in Manufacturing Consent to the effect that all the power brokers are interested in is quiescent serfs dedicated to personal wealth maximisation, not a culture of dissent.

    McNamara, a brilliant but non-deviant character, was an ultra-competitive and narrow-minded technocrat which made him complicit in the carpet bombing of Tokyo and the Vietnam war. He even acknowledges that had he been on the losing side he could have been prosecuted for war crimes. If only McNamara had slightly wilder college days.

    So the masses are duped by propaganda and caught by a Social Darwinist cult that Chomsky despises. Paradoxically, Chomsky is himself a survivor in that world, and has had to make his compromises, as we all do. ‘You’re going to have to serve somebody,’ as Bob Dylan sang.

    Optimism Over Despair

    Nonetheless, as Chomsky argues in his new book, we need Optimism Over Despair (2017), perhaps a social-democratic New Deal, checking unbridled capitalism.

    As creatures of bounded rationality in an increasingly over-specialised world the Big Picture is a luxury perhaps, reserved for a corporate- and military-funded former M.I.T. Professor. He now operates from a salubrious post-retirement position in Arizona – the greatest quality of life retirement home in America – which is not to be in the least dismissive of Chomsky’s staggering achievements.

    Chomsky rightly regards the U.S. as a terror state that acts without restraint, while accusing others of the same crimes. Thus the labels of terrorism and counter-terrorism conceal a multitude of agendas and doublespeak, while permitting the basest acts.

    I am unconvinced by the evidence for a common nascent language of universal and deep structure. Chomsky has never explained adequately the idea of recursion, a kind of infinity of deep structure, and thus the linguistic ideas appear counter-intuitive and perhaps fundamentally incorrect. But I claim no expertise in this domain. Nonetheless, I cling to the belief that there is a common universal of pragmatic compunction, though varying in context and time.

    Of course none of that is to gainsay or contradict the clear speech of his inter-subjective and all-encompassing journalism and political tracts, for which he deserves great praise.

    Responding to Chomsky

    Here I summarise the injunctions I have gleaned from Chomsky’s work:

    • Think independently and do not buy into the mass media consensus. Remain acutely vigilant to doublespeak technobabble. Hearing euphemisms such as ‘politically impossible,’ ‘fiscal stabilisation,’ ‘military intelligence’ or ‘known unknowns’ should sound off alarm bells.
    • Question how implausible nonsense is considerable acceptable, and campaign, if at all possible, for freedom and justice.
    • Assert the importance of historical memory, as Milan Kundera emphasised. In laughter all evil is compacted as Friedrich Nietzsche wrote. If we fail to remember, we’re sure to repeat the same obscenities.
    • Oppose fascism in all its current incarnations, including corporate fascism. Do not sympathise with your captors or enemies.
    • Recognise true hypocrisy for what it is. The hypocrite is someone who applies to others standards they refuse to apply to themselves, of which American foreign policy is a paradigmatic case. Remain flexible and non-puritanical however.
    • Understand that the definition of terrorism is manufactured by a terrorist corporate and state elite. Just as the French tortured in Algeria, the Americans did the same in Guantanamo Bay. Yet both claimed the high moral ground. Terrorism is only what they do to us.
    • Resist the rise of moral relativism, which is part of a triage of evil (joining post-truth and neo-liberalism) that Chomsky identifies in the U.S. Republican Party, which he has singled out as the most dangerous political organisation on Planet Earth.
    • Acknowledge how the cost-benefit analysis of neo-liberalism is turning us into homo economicus, making us lose compassion for one another, besides generating environmental catastrophes.
    • Embrace the educational tools necessary to defend oneself, and develop communities of resistance within rapidly atomising societies.
    Interrogation carried out in Guantanamo Bay.

    *******

    Perhaps the most disturbing idea that comes through in Knight’s book about Chomsky does not apply to him directly, but relates to how the political ground has moved so far to the right that Richard Nixon, who supported environmental initiatives, Keynesian economics and state-funded medicine, might now be labelled a Communist.

    If Chomsky manipulated the corporatocracy to achieve and advocate his political views I would tend to applaud rather than condemn him. To penetrate the orifices of the establishment and to subvert from within is surely a great achievement in itself. It’s always better to be pissing out than pissing in, for as long as you can anyway.

  • Silent Night or a New Christmas Carol from Greta Thunberg?

    I especially enjoy visiting the Austrian side of my family around Salzkammergut during Christmas. The highlight is Little Christmas, or the Feast of the Epiphany, on January 6th best witnessed in the home town of my relatives in Ebensee, under the watchful gaze of the Traunsee mountains, which provide a perfect backdrop to the procession of children’s kites.

    Christmas there is suffused with the ubiquitous Salzburgian carol ‘Silent Night,’ first performed in 1819 in the small town of Oberndorf Bei Salzburg. The song is about Christmas and indeed children. It promises stillness and peace, both of which are now in increasingly short supply.

    Ebensee, Austria

    The great British actor Charles Laughton made one foray, during an illustrious career, into direction. Though a commercial flop, in my view it was his greatest achievement. ‘Night of the Hunters’ from 1955 is one of the greatest films ever made about children.

    The film is deeply disturbing with its focus on a mentally deranged, sociopathic killing machine – also a religious maniac – played impeccably by Robert Mitchum. It is the entrancing dream sequence at the beginning that sets much of the tone, and resonates over time.

    The face of the great silent movie actress Lillian Gish – persuaded out of retirement for this film – fronts ends the film with bright stars and children’s faces floating and twinkling all around her; she issues a stern biblical warning about the good and evil of the world for children. It is they who are pursued and victimised. Beware of false prophets she warns.

    Her message is inspired by Christianity, yet contains a warning against religious mania, and the abuses it fosters, fused with dollops of sociopathic behaviour.

    Pity the little children

    It begs the question as to what dangers we should warn our children against in today’s day and age, and what is best left unsaid.

    First off, it has become all too fashionable to listen to children without a critical filter. There is a growth industry of exploitation propagated by often nefarious family lawyers and social workers. This is often motivated by religious mania, or sexual hysteria, where highly toxic and opportunistic prosecutors engage in latter day witch hunts, in both Ireland and America, conniving with deeply corrupt and extremist states, tottering on the brink of fascism.

    This has led to the framing, as they perceive it, of whistle-blowers and Enemies of the People for child sex abuse. Witness Garda McCabe and others in Ireland. Foreign or non-national or mixed nationalities are targeted in particular. And of course ‘little people’ are children too. Garda Maurice McCabe was treated like a child, or rather a lamb to the slaughter.

    In the process the lives of others, and children, are damaged and even destroyed by people who are truly beneath contempt.

    Chomsky, among others, has pointed out the toxic relationship between neo-liberal Republicanism, religious mania, and philosophical relativism: a school of thought permitting Creationism to be put on the same curriculum as the Theory of Evolution.

    Brave New World

    More insidiously states[i] now facilitate and implicitly promote an idea of children ‘getting in touch’ with their transgender sides. The effect is to generate a confusion that renders our young into docile adults, disengaged from political activity – beyond identity politics at least – leading to confused and undirected lives.

    Advertising and consumerism generate a soma-induced soporific state redolent of Aldous Huxley’s dystopian 1929 novel Brave New World. The aspiration is to create a conformist and pliant workforce – Margaret Atwood’s Handmaids Tale (1985) and The Testaments (2019) writ large.

    I believe children benefit from rigour and discipline, not over-indulgence, in their education in order to realise their potentials as human beings. Instead we have the snowflake phenomenon, wherein sensitivities cannot be upset, and sentiments are imparted in a non-structured way, as a substitute for rational argument. The soporific softness of soma leads to over compliance and undue deference.

    Furthermore, attention is increasingly being diverted to solipsistic social media conversations that achieve nothing – the Doomsday Machines that provide for these platforms are a slow train to economic and environmental destruction.

    The harsh realities of the challenge confronting us are obscured from most children. Trickle down is trickling out for most of the planet and much about human existence is unsustainable. The light is dying. It is a much worse scenario than any dystopian novel – a juggernaut gaining speed.

    A lack of statesmanship and sound judgment, clouded by partisanship and compromise, is laying waste to the world. The controlling corporatocracy of the military industrial complex believes in the young solely for exploitation and cheap labour. The rumbling preceding the avalanche recalls Raymond Briggs’s 1982 graphic novel The Snowman in which a boy is carried on the back of a flying snowman, but when the boy wakes in the morning, he finds his snowman has melted.

    https://www.youtube.com/watch?v=upH1QZU4Z0Y

    Birds of a Feather

    So what can the Baby Boomers or Gen X, to which I belong, teach the young?

    Like the snowman we all melt away into the abyss of time, but the transfer of real knowledge, the utilisation of talent and intelligence, against the forces of ignorance, endure. We are birds of passage in that respect.

    Let us warn people and children in particular through parables, public intellectualism and real journalism – vindicating George Orwell’s stance that ‘Journalism is printing what someone else does not want published; everything else is public relations’ – about the false prophets. We should instill true values upholding innocence; protecting the little people against the gathering storm. This will involve the preservation of the literary canon against the forces of post-modern barbarism, and empowering children with critical lenses.

    Alas, in our over-worked and siloed professions we are afforded little time, let alone incentive, to confront the Gorgon’s head. Thus suffer the little children who need protecting. Now more than ever we need real answers and remedies not more fakery and false promises.

    So let us not bid ‘Au Revoir Les Enfants’, in the words of the 1982 Louis Malle film by that name, and instead inspire them through human rights organisations, which are truth-seeking and truth-telling, with the will to fight back.

    Scrooged

    I recently came across a glittering old edition of Charles Dickens’s classic A Christmas Carol from 1847, where Ebenezer Scrooge emerges as the archetypal dishonest businessman, dedicated to the pursuit of profit at the expense of others. He is the type of corporate monster I have had the misfortune to encounter and even serve.

    Scrooge is of course visited by the ghosts of the past, in the shape of his ex-partner Marley who he drove to an early death, and the future of the Cratchett family including poor Tiny Tim. This allows him to recognise the perversity and error of his ways and repent – it is a wonderful fiction!

    Dickens was the great chronicler of the instabilities and social malaise of Victorian society to which I believe our present woe-begotten age is returning, and above all else of unchecked capitalism and the huge inequalities it generates.

    Now, if the people, like Oliver Twist (1837), arrive with a bowl of porridge to ask for ‘more’ the authorities of the modern day workhouses go berserk: ‘Are you not happy with your existing pile of gruel? ‘Are you not Mr. Tsipras?’

    ‘Well no not really. We need you to extend us more credit to maintain a decent standard of living. Or are we to starve?’

    It is also apparent that a death by a thousand cuts to government services, however necessary these may be in certain instances, leads to a precipitate decline in standards of care and professionalism.

    The growing dominance of a neo-liberal cost benefit approach to the provision of government services suggest there is little reason to celebrate, and much to reflect on. Like Scrooge, we can mend the error of our ways, and reflect on how incompetence, ideology, short-termism, greed and delusion are laying waste to the social fabric.

    If we have any sense of individual or collective decency let us all embark on an Ebenezer Scrooge voyage-of-purification and help the Bob Cratchetts of this world to survive Christmas. And let us also note how such greed grips the legal community.

    But perhaps the most crucial text for our time is Dean Jonathan Swift’s 1729 masterpiece ‘A Modest Proposal’, in which he suggests that babies might be sold as a delicacy to the rich, thereby solving the geometric demographic increments of Malthusian Capitalism – an Early Modern precursor to our present neo-liberal status quo.

    Greta                                  

    This brings us to Greta Thunberg, our only child public intellectual. Still only sixteen, yet Time Magazine has seen to fit to make her its person of the year. She became famous for not attending school to demonstrate against her government’s inaction over climate change, leading to a spate of copycat demonstrations.

    Her recent short text, available in any decent book store for £2.99, No One is too Small to Make a Difference (2019), provides a summary of her speeches. She questions, given an imminent mass extinction, whether attending school is a terribly worthwhile idea, and identifies a cathedral solution. This is a great analogy as what is needed is deep structural and integrative thinking, and the leadership of the just and the wise. She might also have noted that serfs and slaves built the cathedrals, just as wage-slaves constructed those great cathedrals of capitalism: the skyscrapers.

    Greta Thunberg sees the world through black and white lenses. Good and evil. This is a refreshing clarity, demanding action is taken now, or her generation will have no future. She is right insofar as the overwhelming majority of scientists are to be believed. But notwithstanding this shining light, a little bit of grey and complexity should be introduced.

    Her appeal is to an older generation who are responsible for the mess. Though of course not all of us, just the neo-liberal corporate ascendancy, such as Donald Trump, who of course derides her, or perhaps presciently regard her as a threat. You are acting like spoiled, irresponsible teenager she is told. Fortunately, she is Swedish and retains a comparative freedom to speak her mind. The writ of neo-liberal justice does not extend to that Nordic country just yet.

    Interestingly from my point of view, Greta has been diagnosed with Asperger’s syndrome, as I have been myself. This leads us to speak the unvarnished truth, identifying the inappropriate adults in the room. In my case, this largely occurs in the criminal courts. I see Greta as our modern day female Oscar banging the modern day Tin Drum – the idiot savant with a clear view of the righteous path.

    So let us listen to Greta, rather than the siren poetry of Genesis or the right-wing triumphalism of Bannon and Johnson, or indeed even, the fatalism of Silent Night. We do not need false reassurances and false gods at Christmas. Instead we require decent housing, healthcare, and environmental protection.

    Postscript

    The Nobel Peace Prize is announced on December 20th in Stockholm. It is an honour not untainted, having been founded on the proceeds of the invention of dynamite. Some very rum people have won it. Perhaps most awfully the war criminal Henry Kissinger. Mostly it is a reward for high political office, irrespective of a mixed pedigree, although one suspects that at least Donald Trump will not have the honour bestowed on him, assuming our world does not take a further dystopian twist.

    As it takes place just before Christmas, and with silent night in mind, let us lobby for a Swedish national Greta Thunberg, in particular for her recent non-attendance at school and advocacy of a permanent ban on flying and veganism, unpopular causes which challenger the dominant consumer culture of neoliberalism.

    [i] Robbie Meredith, ‘School transgender support guidelines published,’ October 17th, 2019, https://www.bbc.com/news/uk-northern-ireland-50076038

  • Public Intellectual Series: Michel Foucault

    I wrote what follows prior to the Covid-19 pandemic, and have been prompted to re-read all of Michel Foucault’s work, including his lectures and digressions. It seems to me that the following is worth emphasizing:

    1. The concept of the Panopticon, Foucault borrowed from Jeremy Bentham is increasingly prominent in the wake of this virus that has accelerated the introduction of a system of mass surveillance.
    2. Inappropriate behavior is being re-defined to encompass ordinary sociability, while once cherished liberties are easily forgotten. A state of derealisation is upon us.
    3. Madness may now be redefined, leading to detention under draconian (anti-terror) laws for anyone perceived as deviant, subversive or even non-conformist in an ever-narrowing consensus. People who do not behave, act or dress in a specific way are now labelled ‘mad’. People who oppose draconian laws are ‘mad’. Maybe even human rights lawyers will be locked up.
    4. The media and other vectors of public opinion manage the message to ensure compliance and control.
    5. The concept of punishment has been internalized as a regime of prolonged social distancing and self-isolation undermines humanistic instincts. An ever more compliant and fearful population will welcome the Panopticon.

    David Langwallner, July, 2020.

    Introduction

    I have previously quoted a passage from Noam Chomsky, which acutely surveys the post-structuralist origins of our present Post-Truth condition. These words are worth recalling once again:

    There are lots of things I don’t understand – say, the latest debates over whether neutrinos have mass or the way that Fermat’s last theorem was (apparently) proven recently. But from 50 years in this game, I have learned two things: (1) I can ask friends who work in these areas to explain it to me at a level that I can understand, and they can do so, without particular difficulty; (2) if I’m interested, I can proceed to learn more so that I will come to understand it. Now Derrida, Lacan, Lyotard, Kristeva, etc. — even Foucault, whom I knew and liked, and who was somewhat different from the rest — write things that I also don’t understand, but (1) and (2) don’t hold: no one who says they do understand can explain it to me and I haven’t a clue as to how to proceed to overcome my failures. That leaves one of two possibilities: (a) some new advance in intellectual life has been made, perhaps some sudden genetic mutation, which has created a form of ‘theory’ that is beyond quantum theory, topology, etc., in depth and profundity; or (b) … I won’t spell it out.[i]

    A point worth emphasis from the thinly disguised contempt he displays towards this deceitful movement is Chomsky’s regard for Michel Foucault as “different from the rest” – a superior calibre of intellect to the rest. A hedged concession admittedly, but one I happen to share.

    Alone among Post-Modernists, Foucault’s methodology was empiricist and historicist. Rather than relying on incomprehensible prose and bizarre generalisation he adopted inductive reasoning. As an historian of ideas, we don’t simply find him inventing absurd abstractions, but analysing real, existing data.

    Foucault’s ‘critical philosophy’ undermines universalist claims by exhibiting how they are the outcome of contingent historical forces, and are not scientifically grounded realities

    Madness and Civilisation

    In Madness and Civilisation, (1961, Librairie Plon) Foucault examines conventional understandings of mental illness, arguing madness and reason are categories first developed in Enlightenment thought. He sees madness as a product of the Age of Reason, the excluded ‘Other’ against which reason defines itself.

    His thesis is that the practice of confining the mad is a transformation of the medieval practice of confining lepers in lazar houses, an institutional structure of confinement already in place when the modern concept of madness as a disease emerged, even if confining those defined as such to institutions was a break with the past.

    Focusing on this transitional period, Foucault argues that in its infancy, or nascence, reason is a concept that defines itself in opposition to an ‘other’ of madness.

    As he explains:

    What is originate is the caesura that establishes the distance between reason and non-reason; reason’s subjugation of non-reason, wresting from it its truth as madness, crime, or disease, derives explicitly from this point.

    Thus truth of reason is found where madness arrives in place of non-reason, and differences are defined in terms of oppositions. Thus, the meaning of reason is defined by the meaning of madness.

    Foucault argues that if we are to insist upon reason we must not be mad, and so protect ourselves from what we are not. He notes that the confinement of the mad in asylums is a product of the mid-seventeenth century, and that it is no coincidence that the process of confinement developed in conjunction with the Age of Reason. Thus madness operated as an ‘other’ to reason, and as products of Enlightenment thought.

    For Foucault: ‘[M]madness was an invention, a product of social relations and not an independent reality.’[ii]

    Of course that point can be expanded to our present age, with concepts of rationality and ideas on mental health shifting, augmented by social media, message management and outright thought control. The paradigm shift is towards an all-consuming neo-liberalism, and conformity reconfiguring human identity itself. Soon, I fear, even moderate liberalism might be deemed mad, recalling Chile in the 1970s, or even 1930s Germany.

    In my practice as a London-based barrister, increasingly, I find clients in disassociated and decrealised states. Social alienation is leading many to perceive themselves as passive onlookers in lives not truly their own. The ills of social dissatisfaction and structural curtailment of achievement leading to moderate or even severe depression.

    The unrealisable expectations of consumerism and its unattainable objects is creating individual neurosis and psychosis. In essence, pervasive neo-liberalism fosters madness.

    Forms of social sanitation and indeed sexual sanitation coupled with an excessive political correctness are thus criminalising deviant behaviour. We live at a time when judgment on those who are essentially normal is handed down by deviants; a spectator democracy where people have lost ownership of their lives. It’s as if we are in the Central London Hatchery and Conditioning Centre of Alduous Huxley’s Brave New World.

    Discipline and Punish

    In his other crucial text Discipline and Punish, (Gallimard, 1975) Foucault examines punishment through the ages, arguing that torture has simply been reconceived.

    He raises ever more pressing doubts about the hidden costs of a penal style that avoids visible coercion, instead seeking to transform ‘the heart, the thoughts, the will, the inclinations.’ Thus efforts to institute ‘less cruelty, less suffering, more gentleness, more respect, more humanity,’ have, according to Foucault, had the perverse effect of reinventing the entirety of modern society along the lines of a prison, imposing ever subtler, and insidiously punishing discipline. Not just on convicts, but also on soldiers, on workers, on students. Even the various professionals trained to supervise disciplinary institutions are not spared its effects. Corrective technologies of the individual have been refined, producing a double effect: a soul to be known and a subjection to be maintained.

    At the core of Foucault’s picture of modern ‘disciplinary’ society are three primary techniques of control: hierarchical observation; normalising judgment; and the examination. Thus, to a great extent, control over people is exerted merely by observing them.

    Further, modern disciplinary control is often concerned with a person’s failure to meet a required standard and in order to correct deviant behaviour. The impetus is not revenge, but reform, encouraging the individual to live by the dominant norms of society. Thus the phenomenon of normalisation is intrinsic to our society, e.g. national educational standards, standards-driven approval for drugs et al. It is encountered especially in control over whatever is perceived as excessively libertarian, including sexually ‘promiscuous’ lifestyles.

    The norm itself may of course be perverse.

    Foucault contends that as people are examined in schools and hospitals control is exercised over them in hierarchical fashion, with the application of normalising judgment. This is what he terms power/knowledge, which combines into a unified whole: ‘the deployment of force and the establishment of truth.’

    Further, force or control elicits ‘truth’ from those undergoing examination in conjunction with exercising controls over their behaviour. Knowledge is thus an instrument of power, and the goals of power and the goals of knowledge cannot be separated from knowing we control, and in controlling what we know.

    Yet the problem often lies with the knowers who know, but do not turn the lens on themselves.

    Google and Facebook now exercise control, not in top down fashion, but through a levelling user-generated mediocrity, where personal data is mined in order to influence consumer and political choices in a networked society, as they remould what it means to be an individual.

    The Panopticon

    In Discipline and Punish, Foucault is heavily influenced by Jeremy Bentham’s idea of the panopticon. Bentham imagined a glass prison in which prisoners were under continuous surveillance, and argued that by applying perpetual inspection to prisons, schools, factories and hospitals one might harmoniously co-ordinate self-interest and social duty. To Bentham this would lead to ‘the greatest happiness of the greatest number,’ even if are turned into automatons: ‘Call them soldiers, call them monks, call them machines: so they were but happy ones, I should not care.’

    Bentham’s Panopticon is, for Foucault, an ideal architectural model for modern disciplinary power in that each inmate is visible to a central power, and can be seen at any time. With inmates assuming their every act is witnessed, control is exercised internally.

    Foucault suggests that Bentham’s ideas, rather than being fanciful, have become paradigmatic in modern society. Unlike the power of sovereignty, which was often exercised violently, the power of discipline is mild, insidiously humane as it is exercised through discreet surveillance rather than overt coercion. Such supervision, according to Foucault, dissociates power from the body, leaving us compliant and normalised – ready to take orders from above. The effect was an ‘automatic functioning of power’ – ‘A perfection of power’ that tended, paradoxically, to render its actual exercise useless.

    Foucault elaborates on this in a 1978 interview:

    In my book on the birth of the prison I tried to show how the idea of a technology of individuals, a certain type of power, was exercised over individuals in order to tame them, shape them and guide their conduct as a kind of strict correlative to the birth of a liberal type of regime. Beyond the prison itself, a cerebral style of reasoning, focused on punishable deviations from the norm, thus came to inform a wide variety of modern institutions. In schools, factories, and army barracks, authorities carefully regulated the use of time (punishing tardiness, slowness, the interruption of tasks) activity (punishing inattention, negligence a lack of zeal); speech (punishing idle chatter, insolence, profanity); the body (punishing poor posture, dirtiness, lack in stipulated reflexes) and finally sexuality (punishing impurity, indecency, abnormal behaviour).

    He concludes Discipline and Punish with the view that:

    In a system of surveillance there is no need for arms, physical violence, material constraints. Just a gaze. An inspecting gaze, a gaze which each individual under its weight will end by internalising to the point that he is his own supervisor, each individual thus exercising this surveillance over, and against, himself. A superb formula: power exercised continuously and for what turns out to be a minimal cost.

    Bentham’s idea for a prison was only occasionally adopted and ultimately found to be inhumane. Kilmainham in Dublin stands as an isolated example. To penetrate its inner sanctum is to see how, from every vantage, the prisoner is being watched. This time of domination by (anti-)social media is not so very different.

    Truman Show

    Now even a propensity for mildly deviant behaviour is under the overarching supervision of Big Brother – the virtual reality Truman Shows of our daily existences. We have become pieces on a chessboard controlled by the all-powerful corporate influencers, the ultra-rich and the bureaucratic state. These are the worst of times that Foucault saw coming.

    For Foucault the exercise of power in modern societies is complex – domination and rights are not only derived from the power of a sovereign institution of subjects, but are also the product of the lines of force arising from social relations. Subjects are not just determined from above, but are constituted within the system. Thus he explicitly rejects the positivist/sovereign as the source of all-encompassing authority in our society:

    My aim has been to give due weight … to the fact of domination to expose but its latent nature and its brutality. I then wanted to show not only how right is, in a general way, the instrument of domination – which scarcely needs saying – but also show the extent to which, and the forms in which, right, (not simply the laws but the whole complex of apparatuses, institutions and regulations responsible for their application) transmits and puts in motion relations that are not relations of sovereignty, but of domination. Moreover, in speaking of domination I do not have in mind that solid and global kind of domination that one person exercises over another, or one group over another, but the manifold forms of domination that can be exercised within society. Not the domination of the king in his central position, therefore, but that of his subjects in their mutual relations: not the uniform edifice of sovereignty, but the multiple forms of subjugation that have a place and function within the social organism … In other words, rather than ask ourselves how the sovereign appears to use in lofty isolation. We should try to discover how it is that subjects are gradually, progressively, really and materially constituted through a multiplicity of organisms, forces, energies, materials, desires, thoughts … We should try to grasp subjection in its material instance as a constitution of subjects. This would be the exact opposite of Hobbes project in Leviathan, and of that, I believe, of all jurists for whom the problem is the distillation of the single will – or rather, the constitution of a unitary, singular body, animated by a spirit of sovereignty … I would say that we should direct us researches on the nature of power not towards the juridical edifice of sovereignty, the state apparatuses and the ideologies which accompany them, but towards domination and the material operators of power, towards forms of subjection and the inflections and utilisations of their localised systems, and towards strategic apparatuses. We must eschew the model of Leviathan in the study of power. We must escape from the limited field of juridical sovereignty and state institutions, and instead base our analysis of power on the study of the techniques and tactics of domination. 

    Critical Appraisal

    William Davies applies this to an understanding of law and politics:

    Foucault suggests that we abandon the juridical analysis of power, which has emphasised the notion of sovereignty. If we think about law as something which is in itself powerful, something which supplies the answers to disputes and orders social behaviour according to the intentions of a powerful body of lawmakers and judges, we are, perhaps missing an important point. This is simply that many other systems of power, many other systems of meaning and value in society, interact with the legal system. It is not just institutionalised law which says no, or which orders behaviour, or which punishes us for our transgressions. There are, for instance, a multitude of social prescriptions, which order behaviour and the way, we think about the world. Social norms cannot be ultimately distinguished from institutionalised law. The way that a law is applied depends on the interpretation of facts in a case, and therefore, ultimately on the social values and assumptions which go into making that interpretation. Power in the legal system cannot therefore be described simply in terms of hierarchy of people with authority to make decisions, or of laws with the potential to determine disputes: though both the hierarchy of people and that of laws certainly exist, they are shot through with social meanings and systems of relationships which cannot be reduced to one-dimensional descriptions.

    Thus what find now is no longer a top-down state leviathan, but micro-management, corporate and internet brainwashing, the regulation and management of behaviour and expectation, which is re-defining ‘appropriate’ conduct We the wretched of the earth, the ordinary citizen, the disengaged are reduced to surviving under controlled conditions in a spectator democracy. ‘We the many’ are the collective other. ‘They the few’ powerful watch over us, deciding our fate in ever subtler and more insidious ways.

    This leads to political parties becoming increasingly contorted and nugatory, and NGO’s dispersed and un-coordinated. It is not so much a democratic deficit as a democratic void, as we are reduced to deciding who watches over us.

    Foucault saw all of this clearly. His individual response was to embark on personal hedonism, which accelerated his self-destruction – a personal cri de coeur in favour of libertarianism. But this should have been tempered by greater self-discipline, as his excesses diminished his achievements and led to an early grave.

    Solipsistic Sexuality

    Nonetheless, his contextual analysis of sexuality is also of great relevance to the present age. In effect neo-liberalism leads us to focus on private development, awakening sexual libertarianism to negate the political and accentuate further disengagement. He also saw the possible return of fascism.

    But at least, as Foucault points out, social institutions and structures, being contingent, are susceptible to change. Current trends will surely will pass eventually, albeit saving oneself in the meantime is a necessity. Our existences are finite after all.

    The other option is to migrate to Iceland, before being compelled to do so:

    If ever I hear again of any lapse from a proper standard of infantile decorum, I shall ask for your transference to a sub centre- preferably to Iceland.[iii]

    [i] Noam Chomsky, ‘On Postmodernism, Theory, Fads, Etc’ no date (probably 1996), at http://199.172.47.21/lbbs/forums/ncpmlong.htm>

    [ii] James Miller, The Passion of Michel Foucault, Simon and Schuster, New York, p 103.

    [iii] Aldous Huxley, Brave New World, Chatto and Windus, London, 1932 p.85

  • Irish Eyes Unsmiling: Have I Got News For You Brexit-Election Special!

    Bob Hope once wisecracked: ‘the choice between Carter and Regan was not so much the choice of the lesser of two evils, as the evil of two lessers.’ In Brexit-land that joke has transmuted into one about the difference between Boris Johnson and Jeremy Corbyn.

    The Irish media, as ever, are looking at this election through a narrow prism of self-interest. A hard or soft border; opposition of the DUP to a United Ireland; the noxious brew of tribalism and nationalism.

    The sideshow of whether the North will be within a Customs Union occludes profound questions. A Tory Government minister has announced, in effect, that within fourteen months all E.U. nationals will have to ‘regularise’ their residency status, with a discretionary right to withhold a leave to remain.[i] That is the really serious repercussion of Brexit for hundreds of thousands of Irish citizens living in the U.K..

    Michael Gove – a man for whom the term Machiavellian might have been invented – whose statecraft is overlaid with a pretence of humanity, alongside juvenile humour, murmurs about repatriation of immigrants après la deluge.

    With the extradition of ‘undesirables’ proceeding apace, historic crimes will be used to determine the right to continue to reside – ‘at her majesty’s pleasure.’ I have never taken a word of Gove’s seriously – intellectually that is – though I do have a soft spot for his comedic turn. The phrase an Englishman’s word is his bond, need not necessarily apply to Scottish Tory – et tu Michael.

    Michael Gove, ‘for whom the term Machiavellian might have been invented’

    It is a noticeable in my criminal defence representations that extradition matters which, hitherto, were settled as a matter of course are now revived, particularly where Eastern Europeans are concerned. Spengler’s proto-fascist text The Decline of the West (1918-22) seems a la mode. Across the world, we witness a rise in irredentist racism stigmatising ‘degenerate’ races and lifestyles, the demonization, exclusion and elimination of the ‘other.’ 

    Decisions as to who can stay and who is showed out the door are based, increasingly, on an economic calculus – a cost-benefit analysis of life – meaning a corrupt Russian oligarch is likely to get the nod ahead of a political dissident.

    The fool in King Lear advises: Have more than you show. Speak less than you know, an approach that Boris Johnson has very much taken to heart. After Brexit, in all likelihood, the National Health Service will be on the table – Trumping smokescreen denials aside – no doubt involving the nefarious orc that is Steve Bannon. Soon free medical treatment will be restricted to U.K. nationals, permitting an insidious soft entry, engineered by Big Pharma Americans, before the ultimate coup de grâce of privatisation.

    Johnson’s commitment to the NHS during the election campaign is purely tactical; indeed he once described it as a ‘top down, monopolistic’ system.[ii]

    The lethal trade agreement – T.T.I.P. all over again –  will facilitate Canadian and American corporations to sue the living daylights out of employers who dare to extend pensions, health care and a quality of life. I have no doubt these restrictions will form part of any trade deal.

    What we are seeing is the imminent dismantling of the welfare state, the end of the Bevanite social compact, and abandonment of Keynesian intervention.

    Brexit is, however, a complex conversation, also based on the failure of the European Union to live up to its principles. It has imposed a savage, doctrinaire austerity that has seriously undermined the social structure of Ireland and Greece. So really Remain is just a lesser of two evils, with Germanic autocratic lunatics at the helm.

    British decency misguidedly seeks a degree of moderation, fair play and reason in the European Union. Good luck with that. Brussels is a hotbed of lobbyists and bureaucrats, playing career snakes and ladders.

    Brexit was born of a perception that multiculturalism and mass immigration had failed. It’s a sad irony that the uncritical endorsement of open borders by the left actually contributed to people trafficking, money laundering and a heightened terror threat. Moreover, visceral dislike of Israel has engendered antisemitism on the fringes of the Labour Party, which Corbyn failed to stamp out adequately.

    Neo-liberalism is a false paradigm, voodoo economics issued by the church of scientology. It is not just a European consensus, but a world delusion. At least the U.K. is now debating the issues.

    The Irish ambassador for neo-liberalism is that bland consumerist bon viveur David McWilliams. In recent articles he has hailed the Berlin Wall as a triumph of capitalism for Ireland.[iii] Now he crows in Dublin wine bars to pseudo-sophisticates about corporatism providing jobs for tech workers who pay most of their salary in rents to what remains of the bourgeoisie – his people.

    ‘bland consumerist bon viveur David McWilliams’

    Well David you and your comprador class of charlatans facilitate the siphoning of funds into Canadian and American vulture funds fronted by Goldman Sachs. In Ireland the ‘powers that be’ will keep workers on short term contracts, without access to affordable housing or sustainable futures;  all for the benefit of a shrinking band of lightweight neophytes, who are Masters of an increasingly desolate Universe.

    Like Miriam O’ Callaghan, McWilliams is the perfect parrot of Ryanair-consumerism, a bland presentational non-entity facilitating disempowered and entrenching futility in people’s lives. With preppie awfulness he has the audacity to quote Jonathan Swift, without ever absorbing the contents of his most famous tract on Malthusian Liquidation: ‘A Modest Proposal’, which bitingly satires the Mercantilism of his time that we are returning to.

    By and large, the British are less prone to seduction by false prophets. Though the right to ridicule, so intrinsic to democracy, as Ronald Dworkin noted,[iv] is being eroded by light entertainment, sound bites and bland criticism.

    Johnson is the poster boy for this decline. A debased British culture is now offering a steady stream of safe comedy such as ‘Have I Got News for You,’ where politicians metamorphize into comedians or vice versa. Johnson has ridden the wave of light entertainment, Brit Pop and laddish buffoonery.

    Dazzling but superficial wit and repartee have crafted a kind of telethon effect spring-boarding him into the highest office in the land.

    The endless womanising and boorish behaviour appeal to a ‘Jack the Lad’ Skinner and Badiel constituency. But reminders of Trumpian excess has been turned into an asset for political advancement. Philandering did no harm to Clinton either, who began the rot. The vulgar jocks have won. Bannon and Trump are merely an extension of Bubba, as is Johnson.

    So the horror expressed by Heseltine, Clarke, Major and other more civilised Tory grandees falls on deaf ears.

    Corbyn is the antithesis of a vulgar jock, but wooly thinking on multi-culturalism, nostalgic cloth-cap socialism, and the endorsement of political correctness has handed the Right all the ammunition they crave.

    What we need is a return to the kingdom of the just and the wise, but forget about it. Corbyn is, nonetheless, the lesser of two evils. A controlled Remain and rejection of Brexit alongside an emasculated Corbyn, under supervision by coalition partners, looks to be the best outcome.

    Who knows, perhaps the outcome will even involve – you first read it here – that most accommodating of human beings Mr Gove. Flexibility was always something Machiavelli recommended in his Prince. But however you vote be careful for what you wish for this Christmas.

    [i] Mathew Weaver and Amelia Gentleman, ‘EU nationals lacking settled status could be deported, minister says’, The Guardian, October 10th, 2019, https://www.theguardian.com/politics/2019/oct/10/eu-nationals-lacking-settled-status-could-be-deported-minister-says

    [ii] Twitter, ‘Tory Fibs’, December 5th, 2019, https://twitter.com/ToryFibs/status/1202566322078584832

    [iii] David McWIlliams, ‘Ireland was the big winner from the fall of the Berlin Wall’, Irish Times, November 9th, 2019, https://www.irishtimes.com/opinion/david-mcwilliams-ireland-was-the-big-winner-from-the-fall-of-the-berlin-wall-1.4075841?mode=sample&auth-failed=1&pw-origin=https%3A%2F%2Fwww.irishtimes.com%2Fopinion%2Fdavid-mcwilliams-ireland-was-the-big-winner-from-the-fall-of-the-berlin-wall-1.4075841

    [iv] Ronald Dworkian, ‘The Right to Ridicule’, March 23rd, 2006, New York Review of Books, https://www.nybooks.com/articles/2006/03/23/the-right-to-ridicule/

  • Public Intellectual Series: George Orwell – A Crucial Man for Our Time

    George Orwell has never been unfashionable, and is in vogue now more than ever. His writing, best represented by his many essays on a variety of subjects, rather than the more celebrated novels, presage in myriad ways the problems we face today.

    Those famous novels 1984 (1949) and Animal Farm (1945) are visionary works depicting totalitarian societies, but in a more significant way it is the cornucopia of themes broached in his essays that anticipate a present era of thought control.

    Orwell despised abstractions, especially nationalism, but also extremism on the left. Accordingly, in his essays we find focus on the particular and daily life. All political concerns are deemed local. Indeed, his works is identifiable as part of British tradition of empiricism with its distrust of grand ideas and gestures.

    Mumbo-Jumbo

    Orwell would have no time for the mumbo-jumbo of post-modernism and structuralism, just as he dismissed the ideological psychobabble of fascism and Communism. Instead he venerated the common sense of the ordinary person, and was deeply sensitive to how ideologies crushed the human spirit.

    Yet he was also aware of how seductive ideologies could be, anticipating what Zizek has called ‘ideological misidentification’ – that includes voting for those who will undermine your interests, as blue collar America did in electing Trump; or believing what you read in The Daily Mail about foreigners.

    Orwell is nonetheless firmly opposed to the mentality of the mob. Were he alive today, he would surely be a genuine tribune for those on the margins of society, but decidedly against the recrudescence of Populism and appeals to bigotry.

    The casual racism he despised, now so evident in many cultures including Britain, was shaped by his experiences of British colonial barbarism in Burma, as indeed was his hatred of the death penalty, invoked in his short story A Hanging (1931), which was based on personal experience.

    Orwell would definitely understand how, through social media and the machinations of Cambridge Analytical the ordinary man is manipulated – brainwashed even – by subliminal messaging and online influencers. Perhaps the docile uncritical consumerism we are creating is best represented in Aldous Huxley’s dystopian 1932 novel Brave New World (1932), a companion piece to 1984 and Animal Farm for understanding our troubled zeitgeist. Either way, both Orwell and Huxley saw what was coming.

    Throughout his writing Orwell emerges as the champion of the underdog, and zealous opponent of vulgar nationalism, whether emanating from state authorities, or the untutored blatherings of brainwashed victims.

    Orwell had no truck with popular prejudice, esteeming instead basic decency. Doubtless, he would recognise how the populace could be whipped into a mass frenzy today and vote in crypto-fascists or even for Brexit. He was sensitive to how popular decency could be corrupted by propaganda into anti-Semitism and the portrayal of Eastern Europeans as degenerates, as he addresses in Notes on Nationalism (1945).

    Uncommon beliefs

    Orwell thus is a believer in the common sense of the common man, but not popular prejudice or vulgar nationalism, or especially not the racism that spills forth from the mouths of those subjected to propaganda.

    He is prescient about how an ordinary person intuitively believes in the Rule of Law. Thus, in ‘The Lion and The Unicorn’ (1940) he argues that the English believe in law, not power. He further opines in ‘Inside The Whale’ (1940) that this stems from a lack of experience of violence and illegality: ‘With all its injustices England is still the land of habeas corpus and the overwhelming majority of English people have no experience of violence and illegality.’

    Homage to Catalonia (1938) is an account of his his Spanish sojourn fighting on the Republican side during the Spanish Civil War against Franco’s fascists. There he saw clearly how extremism of both left and right has no restraints or humanitarian boundaries, and that a society morphs rapidly into lawless banditry.

    Dotty Dreamland

    The dotty dreamland of England, then and now, is suffused with moderation, incrementalism and a lack of experience of licensed thuggery. This is the basic decency Orwell finds in the novels of Charles Dickens, along with a sympathy for the underdog.

    Living in London I now recognise that the British do not seem to understand, rightly so – and certainly do not tolerate – the manipulation or abuse of law by power.

    In this, arguably, they stand alone in Europe, where we see the law used as a tool of oppression in Spain by proto-fascists, who have imprisoned those with the temerity to hold a peaceful independence referendum; not to mention the crypto-Nazi enclave of Orban’s Hungary, and with the rise of La Liga in Italy; more insidious in Ireland is the undermining of decency and corporate takeover.

    The championing of the underdog is a noticeable feature of British life, and the obligation to vindicate the rule of law against the interests of the powerful is still taken seriously, unlike in Ireland which endorses the interests of the corporations to such an extent that the state resists a tax windfall of €13 billion.

    It is not for nothing that the reasonable man test, or the notional man on the Clapham Omnibus, is intrinsic to British legalism and the Rule of Law.

    That is perhaps why the British became so resistant to the idea of their interests being undermined by faceless bureaucrats for Europe, although tragically the result of Brexit may be to deliver them into the hands of a worse set of faceless bureaucrats in the shape of the American corporatocracy.

    In ‘The Lion and the Unicorn’ (1940) Orwell emphasises how the British are repelled by miscarriages of justice, and believe in holding power accountable, which demands impartial administration of justice by independent officials, who are not bought or compromised. This originates in patterns of independent and generally depoliticised appointment not evident in most other European jurisdictions.

    Use of language

    Orwell is highly attuned to the misuse of language. A prevalent theme is how expression should be clear and unequivocal, in a plain style emphasising the virtues of informality and flexibility. Thus he sedulously exposes techno-babble, and the notorious doublespeak encapsulated by slogans such as ‘four legs good two legs better’ from Animal Farm, which anticipate the arrival of political spin doctors. In short, he saw post-truth coming.

    This includes the fakery of our present narratives, where innocent slogans conceal and occlude a multitude of evils. So terms like ‘austerity’ or ‘fiscal stabilization’, or even ‘ethnic cleansing’, are adopted to mask individual and societal destruction.

    Similarly, the anodyne word ‘evacuation’ was used neutrally by Nazi Reinhardt Heydrich at the Wanassee Conference in 1942 to convey crimes against humanity and genocide. Today sloganing by advertisers, hucksters and snake oil salesmen of all shapes and hues are inducing a form of corporate fascism, and state-sponsored murder.

    1984 is a novel about the totalitarian left, as well as the right. Orwell had a ringside seat on the evils of both in Barcelona during The Spanish Civil War, documented brilliantly in Homage to Catalonia (1938).

    Piquant Irony

    It is a piquant irony of intellectual discourse that the left should have embraced the meandering nonsense of post structuralism from the 1960’s onwards only to see it appropriated by the alt right. Truth is not truth Donald as he must have been advised, and Mr .Giuliani echoes.

    Thus as Derrida can change meaning from one sentence to another, so can Trump or Bannon.

    In The Politics and The English Language” (1947) Orwell cauterises the elevation of grammar and syntax as indicia of anything, and focuses on the precise use of language and the avoidance of cliché, or what he terms Americanisms.

    In fact, focusing on grammatical form, at the expense of content, is the classic sign of a box-ticking pedantic and second-class intelligence, or an establishment ruse designed to avoid engagement with arguments of substance.

    The post truth universe that he saw on the horizon is a feature of most his writing. Thus, in ‘Looking Back at The Spanish Civil War’ (1942) he observes that totalitarianism denies that objective truth exists, and in ‘Notes on Nationalism’ (1945) he points out presciently: ‘Since nothing is ever proved or disproved, the most unmistakeable fact can be impudently denied.’

    These are tactics evident in Mr. Giuliani aforementioned denial of objective truth and Ryanair’s Mr. O’Leary denial of climate change. An approach which, by being reported on, rather than dismissed outright, is given a veneer of respectability

    It is also increasingly evident that that those in power blind themselves to their outright criminality, as long as it comes from their own side, including the Neo-Cons and Blairite proponents of just war, known euphemistically as ‘humanitarian interventions.’

    Increasingly, the true subversives among the state and corporate oligarchy inflict criminality on others with impunity. As Orwell writes in his ‘Notes on Nationalism’ (1945): ‘There is no crime, absolutely none, that cannot be condoned when our side commits it.’

    They ask: are you with us or against us? One of us, or representing the demonised and excluded Other. This is particularly prescient in an age of increasing fractiousness, intolerance and division.

    Orwell chose the middle way, however difficult that path may be. Today being reasonable is often not viable. Alas, he who shouts loudest gains most in our present distorted politics.

    The Enemies of Truth

    In ‘The Prevention of Literature’ (1946) we find Orwell revealing that the enemies of truth and freedom of thought to be press lords and bureaucrats. Then as now, and let us add for good measure include social media manipulators and multinational corporations.

    Perhaps his definitive essay is ‘How The Poor Die’ (1929), a crucial text for these times of austerity, where social supports are being steadily withdrawn. The unthinking consequences of an awful ideology, or rather a deliberately planned extermination of anyone deemed unworthy, alongside the cartelisation of wealth into ever decreasing bands, and hands.

    The focus of Orwell is of course also on secularism and the Enlightenment; the repudiation of false Christian values.

    In an essay on Jonathan Swift the author of Gulliver’s Travels he suggests the one-time Dean of St. Patricks Cathedral rejected the Christian idea of an afterlife, a view commended by Orwell. Swift himself was also highly attuned to the interests of the poor in Ireland, subjected to the excesses of Malthusian capitalism, a theme which he brilliantly parodies in his disturbing ‘A Modest Proposal’. (1729). The consumption of babies is used to highlight a meltdown in human fellowship familiar to our present time.

    So there we have it, George Orwell, dead in 1950 but not as Dead as Doornails. Right back in fashion in fact and on the money.

    Why? Well in essence his own time of totalitarianism, economic meltdown, fascism and propagandistic post-truth are replicated in our own, while his fiction, and especially his essays, are an intellectual counterweight more relevant than ever.

    Let us thus secularly worship Eric Blair, not Tony Blair. He was the prince of journalists, a writer of mystic prescience and curiously, perhaps the single most relevant intellectual for our day and age.

    All references are from The Collected Essays, Journalism and Letters of George Orwell (Secker and Warburg 1968).

  • Public Intellectuals: Jürgen Habermas

    It came as a surprise when the editor of Cassandra Voices divulged recently that he had never read any works by Jürgen Habermas (1929 – ), who I regard as a strong contender to be the greatest living public intellectual. I put this down to limitations inherent in his generation, so I felt compelled to expand on the wisdom and complexity of this towering figure – among the last in the line of transcendent, rigorous intellectuals of the Old Left.

    It is perhaps a partial Germanic background that predisposes my appreciation of Habermas, and I frequently reference his work. Clearly not to everyone’s taste, a technical, and at times dense prose writer, he is not a model stylist. The salient points he makes are, however, of substance, lying as they do in an embrace of communality, anti-extremism and moderation.

    Habermas’s intellectual origins are in Critical Theory and he was, as we shall see, at one time an adherent of the Frankfurt School, and a committed Marxist (he remains Marxist in orientation, but his intellectual voyage has taken him a long way clear). Having definitively broken from the Frankfurt School, he became a firm defender of rationality and Enlightenment Values, the very antithesis of the Designer Marxism of the Sorbonne that spawned this Post-Truth zeitgeist that I have previously written about.

    In essence, Habermas recovers the substantive aspects of rationality, and puts forward a theory of practical reasoning and political deliberation. He regards reason as emancipatory and an antidote to dogmatism, compulsion, and domination. The substance of law is particularly important to him – indeed he has expressed regret that he did not study law – and much of his writings are legal in character.

    Part of the Habermas project is to elevate the space of public deliberation and the Rule of Law above Postmodern scepticism. Arguably, embracing legal philosophy compelled him to focus on the particular rather than the general – empiricism rather than Continental philosophy.

    Background

    As a member of the Flakhelfer generation who came of age during the final phase of Wold War II, Habermas was tremendously influenced by the horrors of the Holocaust, which he first encountered in cinematic reels after the war.

    In response, he venerates the Rule of Law as a counterweight to the horrors of Nazism. Moreover, though at times he is withering in his assessment of the post-war West Germany state (‘the FDR’), his criticism remained constructive and democratic in orientation, anticipating a Third Way between conservatism and doctrinaire Marxism, while bypassing the Critical Theory festering in academia.

    In his early writings Habermas was anxious to depart from influential intellectuals such as Carl Schmitt, tainted by association with Nazism. He opposed veneration of the state, emphasising instead the importance of civil society.

    In contrast to Marxists – many of whom dismissed this as a form of bourgeois fetishization – Habermas emphasised the value of legality. He does not, however, endorse law uncritically. Thus he was sceptical initially of the role of the German Constitutional Court, which developed fundamental rights in a largely progressive fashion. Habermas regarded such judge-led laws as paternalistic. As indicated, he emphasised the importance of civil society engaging in rational discourse rather than a scheme of state-driven rights recognition.

    Furthermore, Habermas sought to reconcile legitimacy with legality. He puts significant store in constitutionalism and a right to civil disobedience, reviving a liberal-socialist argument against the unbending Postmodernists. Habermas argues for a structural transformation and reinvention of the public sphere.

    In his early writings Habermas was also anxious to promote a positive conception of democracy, based on principles of legality and popular sovereignty. He identified an eclipse in the public sphere in the FDR during 1950s, and argued that in place of reasoning and decision-making propaganda and acclamation held sway.

    Natural Law

    Habermas has been deeply critical of an idea of politics as a technical affair, emphasising instead the importance of plebiscite or Direct Democracy. He is critical of a growing tendency to devolve power to technocrats and administrators, seeing the legislative branch of government as the real guardian of constitutionality. He argues that negative liberties could be reinvented only as positive guarantees of participation within a unified state society.

    In his earlier writings he was also sceptical of civil and political rights and these negative liberties. However, from 1961 we see a shift in his writing, as he became more positive about rights. In particular he is influenced by a series of Federal Constitutional Court decisions, including the Luth/Harlan case, which reinforced positive liberties and had a radiating effect on private law. He commends the court for applying rights in a horizontal fashion, against private parties and for recognising a positive obligation to protect speech.

    Nonetheless, throughout his intellectual life he has remained sceptical of court-imposed solutions, and, unlike the American philosopher Dworkin, judges themselves.

    It should be stressed that Habermas has been opposed to the Natural Law orientation of the Federal Constitutional Court, and has always sedulously opposed Natural Law. As he put it ‘Natural Law is devoid of any and every convincing philosophical justification,’[i] a point I endorse.

    Democratic Deficits

    Between 1961 and 1964 Habermas railed against democratic deficits in the FDR, a state which he believed had been handed over to technocrats. Inherent was a distrust of scientization and its fundamental incapacity to grapple with ethical questions, applying to the pursuit of the ‘good life’. He argued that the normative considerations essential to a democracy were being occluded.

    In a prescient remark, anticipating our present commodification of human life he writes:

    In modelling itself on the natural sciences, a science of politics risks treating the human being more as an object than a subject of historical processes.[ii]

    Habermas coined the term decisionist, meaning political decisions taken in a technical fashion unharnessed to ethical considerations. To counter this he emphasised the importance of reason, arguing against the scientization of politics and suggesting that unless technical knowledge was translated into practical knowledge political power would remain substantively irrational. The public sphere was the only place for that translation and that act of translation is the only way to make ‘a scientized society, a rational one.’[iii]

    Habermas thus argues that technocratic thought distorts the proper relationship between science and politics, and that citizens of the state need to be included in the translation between science and politics; in other words democracy needs to be inclusive and direct, as a technocratic consciousness excludes practical ethical questions from public deliberation.

    Habermas suggests that ruling elites in reducing practical questions about the good life to mere technical problems, undermined public, rational democratic discussion of values by the public. This had the effect of masking the value-laden character of government decisions, generally in the service of ascendant capitalism.

    Today’s fumbling bureaucrats and trickle-down-austerity-merchants are the semi-educated heirs of Habermas’s technocratic elite, devoted to growth-without-end, while ignoring externalities such as ecological and environmental meltdown.

    Alas his countrywoman Angela Merkel and her Eurocrat friends succeeded, by proxy, in destroying the social fabric and human structure of Ireland and Greece through adherence to a savage doctrine of austerity. The imposition of technical solutions (‘reducing the deficit’) negated the moral dimension of their actions, upholding a value-laden ideology that worked to the benefit of a shrinking economic elite who prospered after ‘weathering the storm’, at the expense of the preponderance of the population who were left on the scrapheap.

    Herbert Marcuse

    Habermas distinguished himself from his friend and former Frankfurt school colleague Marcuse in his attitude towards technology.

    First, unlike Marcuse, he saw technology as a permanent fixture of the human condition. Secondly, while Marcuse leaned towards the idea of a technological Utopia, wherein emancipatory machines would free workers from of work, Habermas emphasised the importance of the institutional framework of choice, decision and practical deliberation, seeing the permanence of technology without its liberating consequences. Thus, he steered a middle course between the technocratic right and the Marxist left:

    today better utilisation of an unrealised potential leads to an improvement of the economic industrial apparatus but no longer eo ipso to a transformation of the institutional framework with emancipatory consequences.[iv]

    He would surely despair at the mass surveillance of the internet, social media and automation, including a reconstitution of human identity through information technology. These are far from emancipatory consequences of technology. Automation and robotic capitalism will not award people more time to achieve leisure and growth.

    Communicative Action

    In 1968 Habermas introduces his key theory of Communicative Action, where he lays out his contention that the Left had incorrectly assumed that a change in the mode of production would automatically result in desirable changes in the relations of production. He argued that the technocratic approach of the Right and this Left utopianism converged in that each viewed politics as no longer requiring legitimation.

    In place of these, Habermas proposes a shift from a technocratic politics to concepts of work-interaction and communicative action:

    I suspect that the general relation of institutional framework (interaction) and subsystems of purposive rational action (work in the broad sense of instrumental and strategic action) is more suited than historic materialism to reconstructing the sociocultural phases of the history of mankind.[v]

    He further argues that:

    It becomes clear that two concepts of rationalisation must be distinguished. rationalisation at the level of the institutional framework can occur only in the medium of interaction itself, that is by removing restrictions on communication.[vi]

    Habermas also distinguished between technical reason and substantive or communicative reason, which he argued was vitally important: ‘The institutional organisation of society continues to be a problem of practice related to communication, not one of technology, no matter how scientifically guided.’[vii]

    Habermas argued thus for a domination-free communication, and that ideology systematically distorted communication. His argument is for universal pragmatics:

    By reconstructing the conditions of possible communication Habermas hoped to identify the elements necessarily presupposed in the successful exchange of speech acts and thereby to uncover the universal validity basis of speech.[viii]

    Habermas asserted that through language, speakers adopt a practical stance oriented toward ‘reaching understanding,’ which he regards as an ‘inherent telos’ of speech. When individuals address each other in this manner, they engage in what Habermas calls ‘communicative action,’ which he distinguishes from strategic forms of social action

    In communicative action:

    speakers coordinate their action and pursuit of individual (or joint) goals on the basis of a shared understanding that the goals are inherently reasonable or merit-worthy. Whereas strategic action succeeds insofar as the actors achieve their individual goals, communicative action succeeds insofar as the actors freely agree that their goal (or goals) is reasonable, that it merits cooperative behavior. Communicative action is thus an inherently consensual form of social coordination in which actors “mobilize the potential for rationality” given with ordinary language and its telos of rationally motivated agreement.[ix]

    speech acts

    Over the course of a decade the theory of universal pragmatics culminated in a theory of justice as fairness of communication. In this Habermas was influenced by the English positivist John Austin and his idea of ideal speech, arguing with respect to speech acts that:

    In uttering a speech act, the speaker unavoidably raises validity claims which can only be redeemed in a discourse having the structure of an ideal speech situation. However, distorted the actual conditions of communication may be, every competent speaker possesses the means of the construction of a speech situation which would be free from domination and in which disputes concerning the truth of statements or the correctness of norms could be rationally resolved.[x]

    In his recent writings he has amplified on speech acts and identifies four ‘pragmatic presuppositions’ essential, he argues, to communicative rationality:

    • no one capable of making a relevant contribution has been excluded,
    • participants have equal voice,
    • they are internally free to speak their honest opinion without deception or self-deception, and
    • there are no sources of coercion built into the process and procedures of discourse.[xi]

    The essence of all of this is the idea of inclusive critical discussion, free of social and economic pressures, in which all involved treat each other as equals in a cooperative attempt to reach an understanding on matters of common concern.

    In this context Habermas harks back to the salons of the Enlightenment, and claimed that as mass societies emerged over the course of the 19th century, ideas became commodities, assimilated to the economics of mass media consumption.

    Habermas sought to revive this tradition of free-ranging thought in attempting to re-install public reason, and calls for a socio-institutionally feasible concept of public opinion-formation that is historically meaningful, and which normatively meets the requirements of the social-welfare state, and which is theoretically clear and empirically identifiable. He argues that this: ‘can be grounded only in the structural transformation of the public sphere itself and in the dimension of its development.’[xii]

    During this period, Habermas also evaluated the German Sociologist Max Weber seeing in his compatriot’s thought an iron cage of modernity, assigning law and morality to different spheres of rationality. Law required, Habermas argued, a rational justification in contrast to Weber’s positivism equating legality with legitimacy.

    Habermas asserted a need for the law to be justified not simply in technocratic terms, but also in terms of principle or practical moral justification. Law, he argued, was intimately linked to morality and politics and to the constitutional organisation of political power.

    Civil Disobedience

    Habermas was a man of his time, and like Albert Camus, engaged with its controversies. Thus from 1978-87 he turned to the question of civil disobedience in response to what was happening in Germany, especially in response to protests against the proliferation of nuclear weapons.

    Habermas defended civil disobedience and endorsed John Rawls view that this was a morally grounded act, which must appeal to publicly recognised principles. He argued that state legitimacy was intimately connected to the normative quality of the state in arguing for a representative democracy that held a place for civil disobedience.

    Habermas saw civil disobedience of a peaceful nature as a revitalising force, and rejected the authoritarian legalism of Conservatives. Instead he placed faith in dissenting citizen, and saw the German state as a self-revitalising project animated by a noninstitutionalised mistrust of itself.

    At this time Habermas set his sights on Postmodernism. In fact, he called young conservatives antimodernists, old conservatives premodernisms and neo-conservatives postmodernist (such as the Green party who, in a quasi-Luddite way, argued against aspects of modernity) and rejected all three.

    Instead Habermas placed his faith in a concept of communicative rationality with reason centre stage. He would be in his element attacking the way in which post-modernist relativistic nonsense has been co-opted by the Alt-Right and the Neoconservatives.

    More recently, Habermas has emphasised the values of law, politics and the Rule of Law. In fact, he argues that democracy and the Rule of Law are co-original and presuppose each other. He argues for popular sovereignty in conjunction with human rights as the legitimacy of laws; prioritising popular sovereignty and a proceduralist theory as an alternative to ideology. He puts his trust in the productive forces of communication.

    Habermas argues that breaking up legislative power into institutionalised and noninstitutionalised spaces – the parliament and the plurality of public spheres – was the best way to achieve the democratic ideal of self-determination. He saw the noninstitutionalised distrust of the citizen, reflected in civil disobedience, as central to a democracy.

    He explained that the ideal speech situation created the necessary formal or procedural framework within which the public could deliberate and fill in the picture of a good society. Within such a framework participants could decide the concrete possibilities of social organisation they desired.

    His position is summarised thus:

    Habermas dubs his position an “epistemic proceduralism.” The position is proceduralist because collective reasonableness emerges from the operation of the democratic process; it is epistemic insofar as that process results in collective learning. The latter presupposes a fruitful interplay of three major discursive arenas: the dispersed communication of citizens in civil society; the “media-based mass communication” in the political public sphere; and the institutionalized discourse of lawmakers. When these arenas work well together, civil society and the public sphere generate a set of considered public opinions that then influence the deliberation of lawmakers.[xiii]

    In conclusion

    Habermas saw German constitutionalism as an unfinished project and sought to offer a Third Way of democratic discussion between formalistic positivism and moralistic natural law. He is critical of the foisting of human rights on us by judges –  and was critical of the Dworkinean prioritising of the judiciary – placing faith instead in in popular sovereignty.

    He argues, nonetheless, that a system of rights constitutes a minimum set of normative institutional conditions for any legitimate modern political order, but that further institutional mechanisms such as legislatures and other branches of government must operate as an open society of interpreters of the constitution.

    These are the important values espoused by Habermas:

    1: The rule of law and legalism.

    2: Speech and communication untainted by ideology.

    3: The voyage of social passage from post-modernist nonsense to Enlightenment values.

    Interestingly, both Habermas and Noam Chomsky are of a similar vintage, and are perhaps the residues, or remnants, of a tradition of learning and rigour, which is now largely marginalised and ignored. Though he is often difficult to read in a stilted Germanic style derived from Kant through Heidegger and even Thomas Mann, his ideas are of vital relevance. The great challenge is to impart these, and gain an audience.

    A dialogue between secular non-extremist humanism and Christian non-extreme humanism.

    The following is a codicil to a recent piece I wrote on Jurgen Habermas as part of the Public Intellectuals series.

    I list ten crucial lessons and interpretations from the man I regard as the leading public intellectual of our time who bridges schools of thought in a way similar to Edmund Burke, and with more rigour. Habermas was scorned by the agitprop leftists in Germany after he spoke out against a growing extremism as he read it.

    1. Habermas was correct to abandon postmodernism such as that identified by the Frankfurt School, and replace it with rationalist ideology whether Christian or secularist. We need to reunite through reason against the dark forces in the world.
    2. His crucial idea of communicative action and ideal speech invites us to talk in neutral conditions purged of ideology. This has led me to advocate for a world council composed of non-corporate, non-business, apolitical leaders apart from those who are properly rational, which includes Barack Obama and Vladimir Putin. Independent think tanks. Let us talk and argue but not fall out and scream at each other any longer.
    3. Accept religion from an atheist perspective, all to their own. Spirtuality is not to be despised, and we need a communication about ethics and morality. A common ground.
    4. Avoid all extremism. It is counter-productive, whether leftist or rightist. That includes religious fundamentalists and atheist bashers of religion. An interdisciplinary dialogue between faith and reason, a reasoned faith, is needed to confront the problems of the world.
    5. Society should run using technocratic methods with ethical and moral components. Vorsprung durch technik, Germany works but has inflicted its model work practices to liquidate much of Europe. Merkel is not Helmut Schmidt.
    6. Embrace the intellectual tradition and raise our civilisation. Nuance is key.
    7. Democracy is enriched by dissidence, protest and a sense of community beyond parties. but not agitprop doomsday cults.
    8. In certain jurisdictions judicial and other elites cannot be trusted. Too many are now compromised. We need fresh ideas and perspectives.
    9. The United States is on the brink and should not be deferred to. The global challenge of silicon valley needs to be challenged, just as we should be challenging the encroachment of China.
    10. Continue to resist the intellectual and political legacies of both Nazism and Marxist-Leninism.

    [i] Jürgen Habermas: Natural Law and Revolution (1963), p. 113

    [ii] Matthew Specter: Habermas: An Intellectual Biography, Cambridge University Press, Cambridge, p.93

    [iii] Ibid, p. 97

    [iv] Habermas: Technik und Disenchant ales Ideologies (1968) p99.

    [v] Ibid, p.92.

    [vi] Ibid, p.98.

    [vii] Ibid, pp.78-79

    [viii] Specter, p.???

    [ix] Habermas: Stanford Internet Encyclopedia.

    [x] John B. Thompson and David Helds: Habermas: Critical Debates, M.I.T Press., Cambridge,  pp.8-9

    [xi] Habermas: Stanford Internet Encyclopedia. https://plato.stanford.edu/entries/habermas/

    [xii] Jürgen Habermas, The Structural Transformation of the Public Sphere, (translated by Thomas Burger and Frederick Lawrence), M.I.T. Press, 1989,  p.244.

    [xiii] Habermas: Stanford Internet Encyclopedia, https://plato.stanford.edu/entries/habermas/

  • Reclaiming from Conservatism Perhaps the Greatest Irish Intellectual Edmund Burke

    A past competition, now sadly in abeyance, used to involve arguing over who was the greatest Irish intellect. The English held a similar competition some years ago and, unsurprisingly, chose Churchill ahead of Shakespeare.

    God knows what would happen if we had a referendum or phone-in-vote to decide this in Ireland today. Who might figure in our short-term attention span universe? Miriam O’Callaghan, Eamonn Dunphy or Bono present themselves as awful possibilities; Michael McDowell or even Leo Varadkar might even turn up.

    Yet, if we were to take such matters seriously, I think we should consider Edmund Burke the most influential and important Irish intellectual of all time. In fact, The Great Melody, as Conor Cruise O’Brien’s 1993 book on Burke is called – from William Butler Yeats’s 1933 poem ‘The Seven Sages’ – amplifies over time, and the poem unites Burke with Swift, and Goldsmith, in their hatred of oppression:

    The First American colonies, Ireland, France and India harried and Burke’s great melody against it.
    (from W. B. Yeats’s ‘The Winding Stair’, 1933).

    It is that hatred of oppression and injustice that makes him as relevant now as he ever was to Irish, U.K. and International Affairs. Of course, ‘The Great Melody’ of his life was a hatred of injustice, an overarching commitment to the truth and confrontation of the abuse of power.

    Commitment to the truth is badly needed in our post-truth universe, given the extent to which dissonance and disinformation has been disseminated by the alt-right and neo-cons.

    It seems deeply odd then that the right should venerate Burke and regard him as the founder and progenitor of Conservatism. George Bush had a plinth of him in the White House, as I believe did David Cameron.

    Republican Party ideologues, such as the towering figure of William F. Buckley, venerated Burke, and sought to convert Burkeian conservatism to nascent neo-liberalism. Buckley provided the intellectual foundations for this through such texts as God and Man in Yale (Regnery Publishing, 1953), and his editorship of the republic party intellectual rag The National Review.

    Buckley mis-translates Burke’s ideas into a diabolical, individualism or libertarianism. Indeed, other conservatives of that era despised Buckley for drawing Conservatism away from the spirit of Burke’s ‘community of souls’, and towards naked self-interest. This has led to the undermining of state institutions and now their actual takeover by the corporatocracy.

    Buckley was a brilliant but repellent human being, as is very evident in the documentary made about his media punditry with Gore Vidal during the 1968 American election (‘Best of Enemies’). He has had an enormous, understated influence in moving the Republican party, via Reagan, towards Libertarianism and the disaster capitalism that is with us now.

    Yet the Republican Party and indeed much of the present Conservative party are not conservatives in the Burkean sense. They are neo-liberal extremists.

    Traditional Conservatism

    Burke was a moderate Conservative in the Disraelian sense, dedicated to preserving those traditions that ought to be preserved, and his career is an idiosyncratic mixture of radicalism and conservatism. He believed in the desirability of change, but not for its own sake, and advocated that all transitions should be incremental, with antennae raised to unintended consequences:

    Burke was also a passionately anti-extremist. His oft-criticised text ‘Reflections on The Revolution in France/French Revolution (1790),’ is a harbinger of doom – that might apply to latter day extremism and jihadism.

    It came before the blood-letting of the Terror, and the rise of the authoritarian strongman, which he had predicted. Take a bow Mr. Bonaparte. Take a bow Mr. Varadkar. Take a bow Mr. Trump. Take a bow Mr. Orban. I included those three as I would argue that the neo-liberalism they implement is a form of extremism – a new-fangled corporate fascism. I very much doubt whether Burke would endorse its excesses.

    Unlike neo-liberals, Burke believed in an ideal of a community as a group of associative obligations and reciprocal interactions. A moral and networked community. In contrast, the neo-liberal ideology is based on social atomisation and fragmentation. As Margaret Thatcher put it: ‘There is no such thing as society only individuals.’ This is a view running contrary to a Burkean ethos.

    In contemporary terms Burke might even be described as a Rawlsian or, dare I say it, a Keynesian capitalist which is precisely what Buckley was attacking.

    Burke might also appeal to environmentalists as he saw community as inter-generational: ‘Society becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.’

    He held a defined sense of the public good that was not just where the dice landed in the casino capitalism of the market. Further, though a passionate advocate of rights and liberties, he was also a passionate advocate of restraint and moderation. He believed that rights should not be reduced to untrammelled liberties and licentious anarchy.

    Dislike of Crony Capitalism

    Though a conservative in terms of his invocation of habit, tradition and social order, as well as measures of fiscal rectitude, he was, conversely, an opponent of these in many respects.

    He led a hate campaign, lasting many years, against a man of significant merit, Warren Hastings and the East Indian Company, predicated, at one level, on dislike of the abuse of corporate and private power – what we now describe as ‘crony capitalism.’ This makes me certain he would have no truck with the excesses of neo-liberalism, the cartelisation of wealth and assets by elites, or the enforcement of austerity measures.

    After all, he grew up in an Ireland devastatingly captured by Dean Jonathan Swift’s satire ‘A Modest Proposal’ (1729) –  also part of ‘The Great Melody’. The Malthusian liquidation of the poor and disenfranchised inflicted in that period by British absentee capitalists is now being revisited, this time by neo-liberal extremists, whether from Brussels, or Canadian and American vulture funds.

    Burke’s Irish background of course influenced a lot of what he did. It engendered sympathy with the underdog, which threads through his career and was perhaps in no small measure a product of his Quaker education.

    Burke believed in the free market and free trade but not cartels or monopolies. He would surely be horrified by the Ireland we see today: a country controlled by oligarchical capitalism, and ruled by vulture funds and banks, along with a Euro-cracy imposing austerity, after a catastrophe for which it shares responsibility.

    An important point to bear in mind about Burke was that he was effectively in debt for most of his life; the threat of bankruptcy exposing him to the peril of losing his parliamentary seat, and ending up, like Mr. Micawber, in a debtor’s prison.

    Many of these debts were accrued through a resolutely independent cast of mind, and failure to sell out or cash in. Remaining true to one’s principle, then and now, is a luxury few can afford.

    He did not univocally criticise the concept of a revolution, and indeed supported the American Revolution in the face of great criticism. His argument was that they had been the victim of oppression and an injustice, which is the stand he always took. I would go so far as to say he would support such groups as Extinction Rebellion, or in Ireland the Anti-Austerity Alliance.

    Perhaps he would even have supported Brexit for similar reasons to his support of The Boston Tea Party. He held a melange of contrarian views, curiously relevant to this day and age – a qualified support for justified rebellion reveals an intellect neither exclusively right nor left.

    His life is a fascinating study, and his global influence is perhaps only paralleled by a select number of other Irish lives, such as Roger Casement’s. Here is someone who was privy to the inner machinations of two establishments, and though an outsider – and only an intermittent parliamentarian – the greatest statesman of his age, if not by universal acclaim then by consensus.

    Statesmanship

    That of course leads to the question of what statesmanship amounts to.

    First, I believe it involves standing back from the fray and detaching oneself; retaining independence and objectivity. Secondly, it requires that one does not sing exclusively from the party hymn sheet or accept the whip. Thirdly, a statesman does not court popularity.

    All these attributes of Burke’s statesmanship are evident in a critical electoral pamphlet he wrote on his obligations to constituents. In short, he committed to representing their interests fearlessly, but as a representative not a delegate. He would take an independent stance and not simply act as an amanuensis or conduit of popular views.

    His independence of mind – as it always does – alienated many. His opposition to anti-extremism prompted opposition to the French Revolution, but support for the Boston Tea Party and the American Revolution against British rule. This was intellectually consistent as the American revolutionaries upheld British values of liberty, and were subject to unjust rule from a distant, unaccountable, power. In deciding to oppose the French Revolution, on the other hand, he was resisting the rule of the mob and the sans culottes, with their appeals to abstract rights.

    This was also a conservative who inveighed against British injustice in Ireland. He was a staunch defender of the rule of law, and of the curtailment of arbitrary power, but he had little time for abstract rights. In this he was of course a product of his times. Indeed, Jeremy Bentham, his near contemporary, describe Natural Law as ‘nonsense on stilts.’

    He thus rejected the notional constitutional guarantees in the French Revolutionary Declaration of ‘The Rights of Man’ (1793). Similarly, the Irish Constitution exists in theory, but in practice the Court has done next to nothing over the past twenty years to protect the human rights contained therein, and curtail the abuses of state or private power.

    Far better for Bentham and Burke were empirically grounded protections, upheld by independent-minded magistrates. Both thus supported a legislatively grounded rule of law, not abstract aspirations, involving a precise relationship of rights to facts, and specific sets of circumstances.

    Through all of this in Burke there is a distinctly non-British quality, that of the wild Fenian intelligence, a passion grounded in reason, where rights are earned and injustices exposed through procedures and venerable processes.

    It is I think wrong to consider him a great theoretician. But he remains a great intellectual inspiration. Most of his central themes he expressed in ‘A Philosophical Enquiry into The Origin of our Ideas of The Sublime and The Beautiful’ (1757). There he displays empathy and imagination, a belief in social order but one related to religious belief. A commitment to human reason but an acceptance of bounded rationality.

    Thus, there are many themes that are not merely of historical interest but deeply relevant for the present day and age.

    Continued Relevance

    In summary, I regard Burke as the greatest Irish intellect of all time, as his ideas have stood the test of time and remain relevant to contemporary concerns. That relevance to our present dark age of late capitalism is for the following reasons:

    1. Burke offered a voice of reason and moderation, increasingly lacking in an age of extremes.
    2. He maintained a commitment to the truth and the rule of law, both of which are sorely lacking today That also entails a commitment to due process – although not airy notions of natural law which at times he is guilty of expressing. But in general his ideas follow the line that no man should be a judge in his own cause – an important point in view of how the corporatocracy now seeks to purchase justice and insulate themselves from prosecution.
    3. The statesmanship he adhered to was independent and uncompromised by support from vested interests; a politician must be able to distinguish between his private interests and the public interest or common good.
    4. Burke’s esteems for a community of interacting responsibilities recalls another of his contemporaries, John Donne, who wrote: ‘No man is an island.’ Burke is scathing of individual vanity and corporate greed that lays waste to communities – witness his often hysterical and sustained campaign against the not altogether nefarious Warren Hastings.

    In making the argument that Burke was the greatest Irish intellect, it is important to bear in mind that such a crown is not the sole preserve of left of right. Indeed, I can excuse his hatred of atheists. Then, and now, Irish Catholicism represents a pathological condition, and it obviously influenced an at times over-veneration of custom and tradition.

    I would argue that Burke also held too great an esteem for the common prejudice of the ordinary man. That is a dangerous approach used by ideologues of a deeply sinister variety, such as Mr. Bannon, who amplify an inherent fear of the other to dupe the masses.

    Burke did not uncritically accept the views of the common man, as is evident in his crisp understanding of the difference between being a representative, as opposed to a delegate on behalf of his constituents.

    He is admittedly only tenuously linked to the Enlightenment tradition of reason. Some, indeed, dismissed him as a mystic seer. Certainly, if he had met Voltaire at a dinner party that acid rationalist might have rudely dismissed him as a Romantic; another contemporary Edward Gibbons described him as ‘a rational madman.’

    Alas there is little intellectual tradition in Ireland of rigorous Philosophy, and what we are left with is Burke, who was not a systematic thinker, but a statesman, a writer, an orator and a commanding intellectual presence. He was a remarkably effective human being. His legacy for humanity is esteems for the rule of law, empiricism, anti-extremism, independence of mind and action, as well as moderation and balance. These are qualities in short supply in our time.

    I fear, however, that if a poll were to be taken in contemporary Ireland that it is more likely that it would be Jedward not Edmund who would come out on top.

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  • Albert Camus and the Decline of the Public Intellectual

    But again, and again there comes a time in history when the man who dares to say that two and two make four is punished with death.
    Albert Camus, The Plague.

    Periodically, I am asked about the relationship between law and literature. Therefore, it came as no surprise to be sent a book on that theme, The Meursault Investigation (2013) by the Algerian writer Kamel Daoud. It is a rebuke to the greatest Algerian, or indeed French, writer of the last century, Albert Camus, and in particular his classic novel of 1942, The Outsider.

    In fact, Daoud’s account can be read as a form of homage to Camus’s seminal work, taking as it does the murdered Arab as its lynchpin. Nonetheless, there is an implicit critique of Camus’s putative racism or imperialism, or at best, a lack of empathy for the individual killed.

    It is most decidedly not univocally hostile, insofar as Daoud – himself the subject of a religious fatwa in his native land – clearly despises what Camus in effect warned against: the rise of extremism, whether religious or secular, as is the theme of his historical novel The Rebel (1952), set during the French Revolution.

    Daoud’s book concludes with an idea Camus himself would surely have approved of: how to hold on to the precious commodity of truth? This is a subject dear to my heart too as a practising criminal defence barrister.

    There have been other condemnations of Camus. Richard Posner, for instance, argues:

    Not only is the Arab victim left nameless, Arab customs and culture are occluded. Mosques, souks, Arabic, the milling throngs of Arabs in the street all are ignored even though Arabs outnumbered Europeans in French Algeria by more than ten to one.[i]

    Edward Said also claims that Camus implicitly accepted French control over Algeria in Culture and Imperialism. But to my mind these assessments fall far wide of the mark, and fail to acknowledge the great humanity of the author.

    Marxist Critique

    Marxist extremists such as Jean-Paul Sartre and his partner Simone de Beauvoir also crucified Camus over this perceived failing. De Beauvoir’s 1960 autobiography, The Prime of Life, expressed a cold-blooded contempt for Camus, seemingly for his independence of mind, and ideas beyond the cult.

    I consider Sartre a mediocre philosopher and terrible writer, and view de Beauvoir’s offerings only marginally superior, at least in her feminist tracts. I find her novels uninteresting. In contrast, Camus’s singular voice is both philosophically, and in literary terms, of far greater importance, then and now.

    I believe Camus was the defining, and greatest, public intellectual of the last century. More to the point, he is far from obsolescent or useless. In fact his ideas are more relevant than ever. As Daoud’s timely book suggests, he has come right back into focus. So let us address why much of the criticisms directed against him, including those from a position of disappointed absolutism, are wide of the mark.

    Camus’s career was meteoric, but short-lived, dying in a car crash at the age of just forty-three, after becoming the youngest, or second youngest after Rudyard Kipling, recipient of the Nobel Prize for Literature.

    Berta Vias-Mahou’s recent work They Were Coming for Him is suffused with premonitions of mortality, and a suggestion in the coda that the car crash would not be an accident, but an assassination by his enemies, who were at that stage plentiful.

    It is the story of a man who has taken a stand against violence, the death penalty, and terrorism, and has his life threatened as a result, and even goes on to die in an attack that is arranged to look like a straightforward accident.[ii]

    His career consisted, in substance, of three great, but short, novels together with several plays and political tracts, along with numerous journalistic pieces. This output may seem paltry, but as ever, quantity wins out over quality. Each novel is a masterpiece in its own right that has stood the test of time, and the political tracts are rich in philosophical insight, condensing multitudes. The plays are less garlanded, but worthwhile nonetheless.

    In literary terms much was achieved, including that last incomplete work of fiction released by his widow long after his death. The First Man (1994) thus acts as a coda and summation of his greatness, and is set in sultry Algeria, his country of origin. The manuscript was actually rescued from the car crash, and explains a hurried journey to a publisher in icy, mid-winter conditions.

    It should also be noted that Albert Camus was a Pied Noir, a nickname for the French community of Algeria, doubly despised by mainland French and the indigenous Islamic population of Algeria.

    Still today, Pied Noir is a term of abuse, as I once discovered in a hat shop in the south of France, when the owner mistook me for one – a poor, dispossessed Frenchman. This antipathy is also evident in The First Man.

    Hatred of Camus was also linked to his quixotic lifestyle as They Were Coming For Him reveals. Purists, Communist or religious, take exception to the tradition of the cosmopolitan intellectual he represents.

    The Figure of the Public Intellectual

    If Camus is to be defined a great public intellectual this leads to the question: what is a public intellectual, and what benefits does this increasingly rare breed confer?

    A public intellectual is not an academic as such. In his time, as now, the world is full of specialist academics operating in their silos. Specialisation brings a tendency to focus exclusively on one or two matters, leaving no room for the big picture. In contrast, the public intellectual is a generalist and synthesiser.

    Today, compartmentalisation has reached dizzying levels. The proliferation of often useless non-directional research, with the requirements to publish or perish, creates careers equivalent to battery hens producing eggs. The role of the academic as a generalist, and popular communicator, has been almost completely extinguished.

    Above all, it seems to me, a public intellectual should be a communicator. He or she makes complex ideas accessible, stretching the public’s insights, and shocking them if necessary, but never unnecessarily complicating matters, or dressing them up in excessive verbiage or pomposity.

    Take the last two truly great Anglo-American intellectuals, Gore Vidal and Christopher Hitchens. Hitchens was a superb journalist, but it is said that as you read him you always hear him speaking, for above all he was a formidable debater and public speaker, even whilst under the influence.

    Unlike Hitchens somewhat bombastic style, Camus communicates in crisp and lyrical prose. Also, importantly, he was an ordinary, even working class, French Algerian, and never forgot where he came from, and nor was he allowed to.

    In contrast, Gore Vidal spoke with the plummy dismissiveness and engrained intellectual contempt, of the Brahmin. By all accounts his personality was insufferable, which is apparent in a debate with perhaps a progenitor of American neo-conservatism, the devilishly witty William F. Buckley. Indeed I encountered Vidal’s brusqueness myself when I sought an audience in his Italian villa!

    The debate between Buckley and Vidal prior to the 1968 Presidential election returns us to another planet of true intellectual discourse. It is interesting to note that Buckley, whose views I find obnoxious, comes across as the more personable character than Vidal. I heartily recommend the documentary ‘Best of Enemies’ (2019) to find out more.

    Both Vidal and Hitchens, however, pale in comparison with Camus, who won a Nobel prize for his literary work. Vidal certainly, and Hitchens to a lesser extent, were great journalists, acerbic and pointed, but both lacked the secular seriousness, humanism and depth of Camus.

    While Camus might not regale a dinner party with the same panache as Hitchens, or have the same capacity for anecdote as Vidal, there is a unstinting logic and, above all, deep-seated humanism in his writing.

    Rivals Among Contemporaries

    There are many great writers of fiction who cannot be classified as intellectuals – although they may be celebrities. For instance, F. Scott Fitzgerald wrote one of the greatest novels of the twentieth century, but even allowing for Edmund Wilson’s comment that he could never write a bad sentence, his philosophical insights, except in a yearning, American way, are non-existent.

    The Great Gatsby is a simple parable on the self-delusion of the American Dream. A far better and more videogenic vehicle for the true dystopia of the American dream is found in Mamet’s play ‘Glengarry Glen Ross’. (1984), where the American Dream descends into the cut-throat competition of avid materialistic salesmen.

    It should be added that Fitzgerald, in his epiphanic manner, argued that the sign of a great and first-rate mind was to keep ‘two inconsistent and contradictory ideas in his head at the same time’, which, ironically, encapsulates the ability of Camus.

    Unlike Fitzgerald, Ernest Hemingway was thought of as a man of ideas and action. But obsessions with bullfighting, machismo, war-making and fishing are not evidence of profound thinking, albeit these relate to important questions over masculinity and mortality, as well as the futility of existence.

    Nonetheless, Hemingway’s telegrammatic prose style is perhaps unsurpassed in its succinctness, most evident in brilliant short stories and the 1926 novel Fiesta. These are towering achievements, but they not the work of a public intellectual. On the contrary. Papa was not a thinker. Papa liked mamba. Too much.

    The nearest comparisons, and thus competitors of Camus, for the status of the greatest public intellectual of the twentieth century, are French representatives from the same period. These include his erstwhile friends, Sartre and de Beauvoir. Unlike Camus, however, their work has not stood the test of time.

    I feel they always looked down on him as a clever provincial boy, and not quite at their level of seriousness; seeing him perhaps as the Algerian equivalent of a Shropshire Lad.

    In reality, Sartre’s existentialism was always derived from the superior analysis of Martin Heidegger, and his latter-day Marxism is designer-radical-chic, which ultimately achieved nothing. De Beauvoir is a turgid novel writer, insightful in her autobiographical work, and as a foundational feminist, but neither of them wrote as well as Camus, or as reasonably.

    Sartre and de Beauvoir ultimately expelled him from their court: intellectual banishment for the temerity to steer an independent path, and not be their swarthy, mixed-race poodle. Of course, the precise banishment came after his response to the war in Algeria.

    To de Beauvoir and Sartre, Camus was a traitor to the extremism and mumbo-jumbo they promoted. A traitor to the achievement of nothing. It is hardly coincidental that Jacques, the fictional hero of They Were Coming For Him, suggests his intellectual executioners will facilitate his real executioners.

    It is generally assumed that Sartre, with his existentialist and Marxists texts, is the philosopher, and the Camus novelist. I beg to differ. Camus was a far more practical thinker, and his ideas more digestible. Serious writing is not simply that which is unleavened by humour or compression, even in philosophy. To my mind Jacque Derrida is the worst argument for a public intellectual, and is not serious in the least, as anyone who reads his incomprehensible prose will attest: plenty of words, few clear ideas.

    Algeria

    Camus of course, as he readily admitted, was not an existentialist, but a product of the Enlightenment and the French tradition of letters and reason. An inheritor of the tradition of Voltaire, with a clipped prose style redolent of Pascal. There is an austerity about his work too, but also a lyricism born of a mongrel Algerian background.

    His critics accused him of French colonialism, as they saw it, but this is a question of perspective. He advocated co-existence between the transplanted French and the native Islamic population, condemning the torture and the death penalty inflicted on the Islamic population. He was one of the few journalists to visit Algeria at the height of the war where he pleaded for moderation.

    The Marxist dogmatists despised him for this and accused him of being an agent of American imperialism. This descended to the absurd accusation of racism, lingering in The Meursault Investigation, and in the writings of Posner and Said. In my view these accusations are doubly spurious, considering his desire to broker a peaceful solution between the two sides, and a relentless commitment to human rights.

    Camus saw clearly that there would be serious bloodletting in Algeria as there had been during the Terror after the French Revolution, which is the subject-matter of The Rebel. Also, as a Pied Noir, he always argued for the peaceful co-existence between Arab and French populations. In a sense, he anticipated the idea of a two-state solution between Israel and Palestine.

    Evident throughout his writings is the desire to confront absurdity and extremism and invoke the values of rationality, community, solidarity and human rights. That moderation makes him a kindred spirit of the only true Irish intellectual, Edmund Burke.

    The Fall

    So why does Camus remain vital to our own time?

    In the classic sense, Camus was a man of letters, and of epigrammatic precision. In his writing, as with a great advocate, not a word is wasted. Like Beckett’s profound later works, his novels are models of compression and insight.

    It is not simply the novels, but the tracts of political philosophy and journalism – equalling even that of Orwell’s in my view – that define the consistent achievement. He also shared with Orwell a commitment to truth and moderation, defying barbarisms, whether fascistic or Communistic.

    The overriding note in Camus, thus, is always one of rationality and a profound distrust of hypocrisy, and indeed the social and religious prejudices emanating from extremism. Unlike Camus, extremists exhibit a fondness for over-statement and wrap ideas in generalisations, propaganda and pseudo-erudition. Psychologically, it is a form of hysteria, and far too many are appearing in our public discourse today.

    In this respect Camus’s disquisition on hypocrisy is best seen not just in The Outsider, but above all in the remarkable character of the judge and advocate penitent, Jean Baptiste Clemenceau from the 1956 novel The Fall, which even Sartre appreciated.

    Lawyers have often been portrayed as monsters, and such is the character Clemenceau. All ‘piss and blarney,’ as the Irish would say. Seductive, hyper-articulate and a rattlesnake. A judge penitent exiled to Amsterdam confessing his sins, unclear disgrace, disenchantment with humanity, and sense of the hypocrisy of his professional existence. The advocate manqué searching for something, perhaps oblivion.

    There is no more properly satanic and self-reflexive lawyer depicted in all of literature than in the crisp eight-five pages seated on a bar stool in Amsterdam. It in fact is a monologue. A mulish self-justificatory cri de coeur.

    The point is there for all to see: an awareness of the personal failure, properly understood, to grasp or deal with professional and personal hypocrisy.

    Other Works

    The Outsider, is Camus’s most famous novel and the pretext for The Meursault Investigation. It is at one level a classic penological drama of crime and punishment; unsurprisingly Camus worshipped Dostoevsky, which explains the echoes of Raskolnikov. Both texts also feature an intrusive religious prosecutor, compelling the alleged perpetrator to confess all.

    The cleansing of the soul becomes a metaphorical scaffold built by extremists to hang the perceived deviancy in others. It is really a projection of their own evil onto the righteous, and the innocent. The Outsider is also infused with Camus’s lifelong campaign against the death penalty, making it a human rights tract too.

    I would argue it is a mis-reading to suggest he is endorsing French colonialism, and any soupcon of indifference towards the faceless Arab victim should be read in the context of a quest for a just dispensation for all.

    It is the two great political tracts The Myth of Sisyphus (1942) and The Rebel (1951), which are, I believe, the most relevant to his status of public intellectual.

    The Rebel advocates a freedom tempered by responsibility and engagement. It is a book cautioning against terror and a descent into extremism. It is the voice of enlightened, secular humanism that resists the path of uncaring nihilism. It is not a radical rebellious text as such, save as a plea for independence, principle and indeed righteousness.

    Camus demonstrates clearly in Sisyphus that suicide is an abnegation of responsibility. He also saw clearly the need to engage rationally with the important questions of his time. I translate this into my own profession work as meaning the rational compilation of evidence to ward off the forces of darkness.

    Thus, the Rebel is not a radical rebellious text as such save as a plea for independence, principle and indeed righteousness. This not unlike Jurgen Habermas’s idea of communicative action of technically but morally rational solutions to human problems.

    Continued Relevance

    On all sorts of levels, the anti-extremism of a Camus is called for in a world ensnared by religious fundamentalism, fuelled by toxic neo-liberalism and incipient fascism.

    As a man of the Enlightenment, Camus was also an opponent of moral relativism: the idea that all views are equally valid. He valued reason and moderation and sought compromise. His enemies now, and then, are the purveyors of Post-Truth psychobabble, along with all forms of fundamentalism and terror, racism and social marginalisation.

    Alas, independent public intellectuals are no longer in vogue, and we all must eat. Our universities are corralling us it into fixed categories and narratives. Issues of environmental and economic collapse give way to the safe haven of identity politics, allowing vested interests to virtue-signal their ‘liberal values,’ and ignore the great unwashed.

    People are appalled at the likes of Harvey Weinstein, rightly so, but the ex-post-facto-political-correctness is a side show to the real economic and environmental abusers.

    The mainstream media provides in Chomsky immortal phrase ‘language in the service of propaganda.’ Standards of intellectual and professional argumentation are going out the window. The educational system is obsessed with branding.

    Meanwhile mainstream media demands ‘balanced’ coverage: airing both sides of the argument has led, ineluctably, to the ventilation of utter nonsense. I would love to read what Camus would had to say about the dumbed-down palaver that passes for political debate today.

    So the values of Camus, the just man, the legalist in fact, the moderate, the secular humanistic rationalist and compromiser are greatly in need. These qualities are intrinsic to a genuine public intellectual, rather than a jumped-up self-help guru such as Jordan Peterson.

    Moreover, my own distaste for the organised criminality of many police officers is reflected in a passage from They Were Coming For Him:

    It seems that the; police officer in charge of the investigation had said there was nothing surprising about the case, that a career such as that mans was bound to end as it has.[iii]

    Of course, the books still stand the test of time and are now revisited and indeed revitalised by works such as The Meursault Investigation. This legacy is as vital as ever and in Aristotelean terms, the virtues it expresses are those of courage, moderation, justice and prudence. But he also held other great virtues: an utter lack of hypocrisy and, above all else, humanism. Camus had the full package of ingredients required, then as now, to be a public intellectual.

    David Langwallner is a barrister at Great James Street Chambers, London.

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    [i] Richard Posner, Law and Literature, Harvard University Press, Cambridge, 1989, p.66

    [ii]Berta Vias-Mahou, Cecilia Ross (Translator), They Were Coming For Him, Hispabooks, New York, 2016) p.111

    [iii] Ibid, p.189

  • Freedom of Speech in the Facebook Age

    Facebook’s CEO Mark Zuckerberg recently called for more stringent Internet privacy and election laws saying, ‘We need a more active role for governments and regulators.’[i] In advocating what amounts to censorship, he seems to have at least awoken to the Promethean beast he has summoned.

    It opens a dangerous vista, however, and is hypocritical for Zuckerberg to complain about hate speech, given his company provides a forum for its ventilation, while deriving vast profits off the advertising of post-truth nonsense.

    Among the essential features of any democracy is freedom of speech, without which other rights are superfluous. Woven into the fibre of the American character, Anthony Lewis described freedom of speech, which is protected under the First Amendment of the U.S. Constitution, as ‘a search engine for the truth.’[ii] It is also enshrined in various international human rights instruments, albeit generally using more attenuated formulae.

    The scope of freedom of speech came before the U.S. Supreme Court in the case of Snyder v Phelps et al in 2011, which concerned the picketing by Westboro Baptist Church at the funerals of U.S. service men and women over the military’s tolerance of homosexuality.

    The Supreme Court held that the constitutional guarantees do not permit any State to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy is directed at inciting or producing imminent lawless action, and is likely to incite or produce such action.

    In his judgement, Chief Justice Roberts indicated that:

    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.[iii]

    In contrast the European Court of Human Rights will not protect either racist speech or Holocaust denial from prosecution. Similarly, that Court permits the restriction of speech on grounds of public health and morals, or order public. These are, however, malleable concepts easily manipulated by state authoritarianism. It is worth emphasising that it is the speech we most dislike and disagree with that deserves most protection. An appeal to ordre publique involves the demonization and criminalisation of those we disagree with, but our own views could one day suffer the same fate, if we speak out of turn.

    My own opinion is enough for me

    Central to speech protection is defending the rights of others to speak, even if we disagree with their point of view. In his classic formulation Oscar Wilde said, ‘I may not agree with you, but I will defend to the death your right to make an ass of yourself.’

    In latter times the late Christopher Hitchens’s robustness verged on arrogance:

    My own opinion is enough for me, and I claim the right to have it defended against any consensus, any majority, anywhere, any place, any time. And anyone who disagrees with this can pick a number, get in line, and kiss my ass.

    However rudely expressed, Hitchens was attesting to the importance of argument and rational disputation in an increasingly degraded intellectual climate.

    Far earlier, Francis Bacon famously equated knowledge with power; although we should be cognisant of Michel Foucault’s qualification that power determines what counts as knowledge. Thus, speech imparts knowledge, but vested interests determine and condition the parameters of acceptable discourse.

    Elsewhere, the great Ronald Dworkin went further, arguing that ‘free speech is a condition of legitimate government.’ He indicated that the universality of speech as a mode of rational discourse and scientific inquiry could act as truth-seeking counterweight to mass hysteria, negating unreason and prejudice.[iv] Moreover, Stephen Sedley, the great English judge, called it ‘the lifeblood of democracy.[v]

    Speech and words matter, as Orwell trenchantly put it: ‘If liberty means anything at all, it means the right to tell people what they do not want to hear.’

    In retrospect Christopher Hitchens seems to have been at the tail end of a freedom of speech tradition beginning with his hero Thomas Paine, mediated through his other great hero Orwell, and culminating in his own rich tapestry of public utterances. His final collection of essays, and summation, is entitled Arguably, which is, arguably, the most important concept to defend – producing a discourse shaped by rational argument.

    Cultural Degradation

    In an increasingly controlled and technocratic age, fearless independent criticism is being expurgated. The press is controlled by vested corporate interests, and often, in offering ‘balanced’ coverage, editors grant credibility to pure nonsense. There are two sides to every story: Creationism or Darwinism, take your pick.

    Social Media solipsism has leached into the popular press at a time when the appropriate ambit of the freedom of speech proves ever more difficult to define. In this New World Order of endless Internet chatter, character assassination, simplifications and casual defamation are the order of the day.

    The Internet may ultimately prove a force for liberation, but it puts on public display ever more bizarre and outlandish commentaries, often implanted via sinister advertising. This cultural degradation is picked up by social media, which offers a forum for uninhibited cant. Zuckerberg is intervening belatedly, and to save his skin.

    The consequence are the belittling of politics and intellectual discourse – just compare the quality of the Clinton-Trump debates to those of an earlier epoch, such as Kennedy-Nixon. Similarly, the Brexit debates are conducted in a manner reminiscent of the Lord of the Flies, as opposed to the elevated Parliamentary debates preceding the decision to enter World War II.

    Post-Modernism

    Richard McKay Rorty’s observations about language having a fluid structure, which alters over time, is insightful, but can slide into abject moral relativism. The Post-Modernist argument has, in certain respects, been appropriated by the Far Right, who insist that truth is not truth, and that humans have nothing to do with climate change.

    What we are seeing is a free-for-all where all opinions are equal. Aneurin Bevin, as great an orator as Churchill, once remarked to the House of Commons that listening to a speech from Labour Prime Minister Clement Atlee was, ‘like paying a visit to Woolworths: everything was in its place, but nothing was above the value of sixpence.’ Thus, to be taken seriously, one must actually have something to say.

    Great speeches should have content, while any speaker should not get carried away by his rhetoric, which often serves propagandistic purposes. This sound-bite-generation might do well to follow the cautionary words of Wittgenstein that whereof one cannot speak thereof one must be silent.[vi] So respect for freedom of speech should not devolve to giving every clown a stage on which to perform.

    Curbing Advertising

    Whether freedom of speech protects jihadi websites handing down fatwas or exhibiting pornographic beheadings is often up for debate. Less commonly do we hear questions around protecting the population from the sponsored blathering of Trump, the Clintons or Goldman Sachs; or whether freedom of speech extends to protecting the nonsense emerging out of Fox News, which often controls the political narrative. In short, it is pie in the proverbial Sky News to argue that no credence or weight, or indeed audience, should be given to the Neo-Cons or Religious Rights, since they own many of the networks and set the agendas.

    This brings us to the vexed question of whether freedom of speech should be used to protect Internet providers. We know freedom of speech vitalises any democracy, but arguments in its favour may be deployed for nefarious ideological ends, where politically motivated advertisers frame political narratives. When Facebook accepts remuneration from political parties and online publishers in exchange for ‘boosting’ posts there is an implicit endorsement.

    In 2010, while acting as CEO, Eric Schmidt famously let slip that Google needed to secure its ‘borders’ before correcting himself to say ‘networks’,[vii] but the implication is clear that Google, and other corporations such as Facebook, act as Superpowers, which transcend national sovereignty. They then deliberately conflate freedom of speech assertions with the selling of products.

    Far less protection should be extended to commercial free speech, or the so-called freedom of the Internet, where big beasts spy and target you with advertising. Mark Zuckerberg’s call for the regulation of the Internet in fact opens an appalling vista of social control. Clearly his corporate interests are threatened by a veritable shitstorm of abuse, and never mind that Facebook has been used to manipulate voter sentiments.

    Ultimately it is up to constitutional courts, not Zuckerberg, to define the parameters of privacy. Given the storm he has unleashed, there is no way that he should be handed the role of policeman.

    I fear the information we receive from his organisation, among others, is turning us into passive nodal receptors, and permitting artificial intelligence to rewire human identity. This descends into the inevitable containment of speech, suppressing that which can be said, and even that which can be thought before it is mentioned. Or, to quote the title of a novel by Samuel Beckett, Ill Seen Ill Said.

    Moreover, the fluidity of the information superhighway, enables jihadists and other extremists to find one another. This leads Cass Sunstein, the American legal scholar, to argue that the Internet contributes to group polarisation.[viii]

    Worryingly, in academia free speech is now often bound by commercial sponsors, such as the Ford Foundation. In this context of academic self-abnegation and outright ass-kissing it is worth recalling the observation of Karl Marx that there is no point, after all, speaking on Hyde Park Corner when you have nothing to eat. Empowering those without a capacity for speech to the extent of your own is a lawyer’s vocation.

    Speech and communication allow people to do good and negate bad. An understanding of the nuances and tropes of speech also leads towards untangling disinformation, lies and misrepresentations. Online commercial advertising, which often illegally targets its audiences, cannot draw on the defence of freedom of speech.

    Furthermore, there seems little point supressing so-called hate speech, while permitting post-truth circumlocutions and psycho-babble to run riot. Nonsense deserves no protection, and Mr Zuckerberg is the last person we should entrust with regulating this.

    [i] Spencer Kimball, ‘Zuckerberg backs stronger Internet privacy and election laws: ‘We need a more active role for governments’, March 30th, 2019, CNBC, https://www.cnbc.com/2019/03/30/mark-zuckerberg-calls-for-tighter-internet-regulations-we-need-a-more-active-role-for-governments.html, accessed 10/4/19.

    [ii] Anthony Lewis, Freedom for the Thought we Hate – A Biography of the First Amendment, New York, Basic Books, 2010.

    [iii] Snyder v Phelps 562 U.S. 443 (2011), https://supreme.justia.com/cases/federal/us/562/443/, accessed 26/4/19.

    [iv] Ronald Dworkin ‘The Right to Ridicule’, March 23rd, 2006, The New York Review of Books, https://www.nybooks.com/articles/2006/03/23/the-right-to-ridicule/, accessed 26/4/19.

    [v] Stephen Sedley, Law and the Whirligig of Time, London, Hart Publishing, 2018.

    [vi] Ludwig Wittgenstein, Tractaus Logico Philoophicus, London, Keegan Paul, 1922.

    [vii] The Editorial Board, ‘There May Soon Be Three Internets. America’s Won’t Necessarily Be the Best.’, October 15th, 2018, The New York Times, https://www.nytimes.com/2018/10/15/opinion/internet-google-china-balkanization.html, accessed 26/4/19.

    [viii] Cass Sunstein, ‘The Law of Group Polarization’, University of Chicago Law School, John M. Olin Law & Economics Working Paper No. 91, December 13th, 1999. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=199668, accessed 26/4/19.

  • The Limits of Law

    ‘What is law?’ This is a fundamental question posed at the outset of any course in the philosophy of law. The standard form of response includes that it is a system of rules, according to a tradition known as legal positivism. Such is a ‘black letter’ lawyer, and Anglo-American approach. This is a product of a tradition of formalism, pioneered by scholars such as Jeremy Bentham and John Austin, and latterly taken up by Christopher Columbus Langdell and H. L. A. Hart.

    In a nutshell it says that if you want to ascertain what the law is then you simply look it up in a statute, or derive it from the interpretation of a case or precedent, and, hey presto, there you have it.  As a lawyer you then arm yourself for battle with this information. Such an outlook matches the common-sense approach of most lawyers. But interpretations of case laws, statutes and constitutions differ. Even within black letter law the meaning of language is never clear. Facts are never exactly the same. Rules are opaque, seen through the looking glass as in Lewis Carrol’s Alice in Wonderland:

    When I use a word Humpty Dumpty said, in rather a scornful tone, it means just what I chose it to mean-neither more nor less. The question is said Alice whether you can make words mean so many different things.[i]

    In fact, the central assumption of certain positivists, such as Hart[ii] that facts are plain, and all meaning is shared, is eminently contestable. It leads to the fallacy within the black letter tradition that law, or legal meaning, can simply be ‘downloaded’ from a case or a statute and technically applied to any case at bar.

    In contrast, the leading rights-driven lawyer, Ronald Dworkin[iii] (in for example Laws Empire, 1986) saw law as a matter of argument, and interpretation. Law and legal meaning are thus intensely creative. He concluded that the best or superior interpretation succeeded – as in Herman Hesse’s last novel The Glass Bead Game – but often this fitted, subjectively, with an overarching liberal agenda. For Dworkin, the right or best answer was always the liberal answer, which allowed his critics to pillory him, arguing his approach was a trojan horse laden with premeditated answers.

    But questions of what law is cede to questions of legal validity. Thus, whether something is there on a statue book, or in a court case, must be related to whether that which is law is itself valid.

    Ultimately an impasse is reached in that legal validity, in order to have normative and thus binding force, cannot simply rely on legal validation. Or to put it more simply, black letter, legal validity must be cross-checked against the moral or ethical quality of any law.

    Nonsense on Stilts

    Thus, the argument runs, in order to be valid black letter law it must also be morally reasonable. This concept is deeply alien to an Anglo-Saxon mindset. It invokes the spectre of supernatural deities and that abomination that Bentham referred to as ‘Nonsense on Stilts’, natural law.

    Ever since Bentham, the architect of legal positivism, English lawyers have frowned and derided such abstract speculation. Within the British intellectual tradition, from Hobbes to Hitchens, the existence of a supernatural deity is either not accepted, or treated with utmost scepticism. Even devout Christian defer to the intellectual wisdom of traditional British empiricism.

    Yet there is still a widely maintained view, of which residues exist even within the British mindset, that in extremis when a law has forfeited all claims to legitimacy it should be abandoned.

    This was also the perception of the reformed German positivist lawyer Gustav Radbruch at the end of World War II in response to Nazism. He argued that once a law abandons all principles of humanitarian morality it ceases to be law. This became known as Radbruch’s formula, and forms the basis of modern human rights instruments and charters.

    Here we approach the kernel of the problem namely, if a law departs from fundamental moral principle should one comply with it; or instead engage in civil disobedience to unsettle and repeal it? Furthermore, should a judge invalidate it on moral grounds?

    Law in Action

    This then throws up the thorny question of morality, a world conjuring images of Baptist street preachers, and public avengers screaming from the rooftops. The moral majority often contends, in Lord Devlin’s terms, that what disgusts the average man on the Clapham omnibus should be declared illegal (see Devlin, The Enforcement of Morals, 1959). But given how many minds are polluted with prejudice that may be a perilous formula.

    Such is the positivist dilemma, and also a pragmatic and realistic one. The view I increasingly lean towards is that it is less important what the black letter law says, as opposed to what are the repercussions of the law.

    As Oliver Wendell Holmes, the quintessential realist, put it: ‘The prophecies of what the courts do in fact are what I mean by the law and nothing else.’[iv] Thus, Holmes maintained there was no law as such until a court had pronounced on the matter. This has morphed into the concept of law-in-action, which is a useful corrective to black letter legal theorising of the ivory tower type.

    It is all well and good to talk about rules, but in the trial and family courts it is not rules but fact, semi-fact, prejudice and bias that condition outcomes. Such technical law as there is contested often is agreed beforehand, and irrelevant to the outcome.

    The question thus becomes: where statute and the practice of the courts is manipulated to favour certain outcomes, what recourse does any citizen have, and what obligation are owed in terms of obedience?

    The Subversion of Subversion

    What are you to do if you are confronted with a corrupt state and attacked personally and professionally by an abuse of process or lack of standards. The current imprisonment and trial of the Catalan leaders in Spain, who had the temerity to organise a referendum trial in Spain is one good example of the distortion of law.

    A number of options are available: you can fight back in a loaded game with predetermined outcomes; comply and sympathise with the plight of your torturers, who are only doing their jobs after all. Stockholm Syndrome must always to be resisted. You can also engage in civil disobedience or write letters to newspapers, or refuse to recognise the legitimacy of a subversive state. Then you may be imprisoned or even murdered either in detention or on the street in plain view, like the Maltese journalist Daphne Caruana Galizia. More likely you will be bankrupted. Such today are the perils of dissidence around the world.

    In practical terms this often means exile is the best option, either as a professional or as a political refugee.

    A place of sanctuary, however, may not provide an adequate haven due to its failure, deliberate or otherwise, to understand the intricacies of the laws of another state. It may feel obligated to comply with reciprocal extradition treaties. Fortunately a court in Schleswig-Holstein refused to extradite the Catalan leader Carles Puigdemont, as it was clear that the charge of violent rebellion laid against him was an abomination. This world is nonetheless increasingly dangerous for enemies of the people: politicians, human rights lawyers, journalists and whistle blowers.

    It leads to the unsettling question of whether, if a state engages in criminali behaviour, is retaliation against a state officials permissible?

    I believe that self-help, disobedience and fighting fire with fire even in an extra-curial sense can in certain circumstances be justified. In general, however, the pen is a mighty counterweight to the sword and a weapon when the legal system no longer functions. The Fourth Estate can still blow smoke up the arses of the establishment.

    This leads to the worrying conclusion that we expect too much from law and that the overlap between law and justice is extremely tenuous. That at least is the case in those states where a crisis of legitimacy is leading to a breakdown in the rule of law.

    Law in societies no longer complying with the rule of law, is whatever works to bring about a desired outcome, which is often the incarceration of the alleged subversive.

    Civilised states at least pay lip service and occasional adherence to justice. Those who believe in legalism and the rule of law, encompassing such diverse figures as the Dworkin, Jurgen Habermas and the late Marxist historian E.P. Thompson, suggest law can be a force to check tyranny.

    As Thompson wrote in Whigs and Hunters:

    But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good. To deny or belittle this good is, in this dangerous century when the resources and pretensions of power continue to enlarge, a desperate error of intellectual abstraction.[v]

    The rule of law can, however, only obtain if the legal system has not descended into barbarism.

    Radbruch’s Formula

    As aforementioned, a crucial juristic figure is Gustav Radbruch, both a law professor and government minister during the Weimar Republic. It is often argued that opinions expressed in his earlier writings are positivistic. In 1932 he was a relativist in terms of the question of whether moral standards existed in law. He wrote that a judge had an obligation to uphold an unjust law. The Second World War changed his mind.

    In the famous ‘Radbruch’s Formula’ (Radbruchsche Formel) he argued that where statute law was incompatible with positivist law to an intolerable degree, and if it negated the principle of equality which is central to justice, it could be disregarded. In 1946 he wrote:

    [P]reference is given to the positive law, duly enacted and secured by state power as it is, even where it is unjust and fails to benefit the people unless it conflicts with justice reaches so intolerable a level that a statute becomes in effect false law and must therefore yield to justice … where there is not even an attempt at justice, where equality the core of justice is deliberately betrayed in the issuance of positive law then the statute is not merely false law it lacks completely the very nature of law.[vi]

    Radbruch suggests that where a government’s conduct is intolerable, the statue ceases to be valid. Law and must yield to justice. It was clear for Radbruch that this sense of justice (Gerechtigkeit) was linked to human rights. Thus, in Funf Minuten Rechtsphilosophie he argued for ‘justice as moral equality as applying the same measure to all or guaranteeing human rights to all.’[vii]

    As Hart indicates:

    His considered reflections led him to the doctrine that the fundamental principles of humanitarian morality were part of the very concept of Recht or legality and that no positive enactment or statute, however clearly it was expressed and however clearly it conformed with the formal criteria of validity of a legal system, could be valid if it contravened basic principles of morality.[viii]

    Fuller also argues in oft-repeated quote:

    To me there is nothing shocking in saying that a dictatorship which clothes itself with a tinsel of legal form can so far depart from the morality of order, from the inner morality of law itself, that it ceases to be a legal system. When a system calling itself law is predicated upon a general disregard by judges of the terms of the laws they purport to enforce, when this system habitually cures its legal irregularities, even the grossest, by retroactive statutes, when it has only to resort to forays of terror in the street, which no one dares challenge, in order to escape even those scant restraints imposed by the pretence of legality – when all those things have become true of a dictatorship, it is not hard for me, at least, to deny to it, the name of law.[ix]

    But is the moral answer ever completely clear and who is to judge?

    The Fog of War

    In this respect it is worthwhile considering a fascinating film documentary by Errol Morris about Robert McNamara, called The Fog of War. McNamara was Secretary of Defense under Presidents Johnson and Kennedy, and a man of many private accomplishments. In his documentary he surveys his career through a glass darkly.

    McNamara reveals that as an assistant to the American General Curtis Le May he was responsible for the carpet bombing of Tokyo. He admits that if the US had lost the Second World War, he could have been prosecuted for war crimes. He ultimately concedes he was a war criminal, but his side had won. Victory is not necessarily the victory of the morally just.

    Moral arguments can become even more complex. A recent documentary by Claude Landsman – responsible for perhaps the greatest documentary ever made Shoah (1985) – called The Last of the Unjust traces the life of Benjamin Murmelstein during World War I through a series of interviews prior to his death, alongside contemporary reflections by the director. The moral complexity of Murmelstein, a rabbi to the Jewish community at the Theresienstadt ‘model’ Concentration Camp, is such that he is difficult to place, in the seemingly straightforward narrative of the Shoah, as victim or vector. It is only thirty years later that Landsman revisits the footage.

    The argument of the film is replete with moral ambiguity. As head of the Jewish Council in Warsaw Murmelstein liaised with Adolf Eichmann. Then as leader of the Jews at the propagandistic Theresienstadt he was responsible for maintaining the illusion of happy campers; the salutary consequence was that many Jews were saved from the death camps.

    But many others were sent to the gas chambers from Theresienstadt and Murmelstein was privy to those decisions, and saved his own skin. At the end of the war he was prosecuted but the case was dropped.

    What have I done wrong he asks constantly through the film? Did I not do my best? Did I not do good? What would you have done in the same circumstances?

    Should he have been prosecuted or acclaimed like Oscar Schindler, Nazi War Profiteer, Drunk and Womaniser yet a saviour of the lives, at great personal cost, of over one thousand Cracow Jews, rights beside Auschwitz? Schindler is now buried alongside the Israeli hierarchy in the national cemetery in Tel Aviv.

    Conclusions

    Thus, even the invalidation of laws based on morality creates problems. So, in summary, what can be said about law, legality and morality?

    1. That judges should adhere to the process of legality and avoid bending the rules to suit the interest of those who appoint them. They ought to be independent, and not subject to political pressure or motivated by dogma.
    2. That justice must be blind to class or colour, and neutral and dispassionate. Show Trials, such as those going on in Spain today, reveal the mob ascendant.
    3. That judges ought to jettison strict adherence to black letter outcomes, unmitigated by flexibility.
    4. That the judiciary and fact finders must be committed to the process of truth elicitation and non-fabrication.
    5. That in extreme circumstance of an immoral legal code or state-sponsored illegality, a judge should reserve a discretionary right to strike down a statute or a precedent.

    Perhaps people have too much faith in the law and indeed lawyers, but in our times a faith in justice is one of the few things to hold on to.

    A just system is one administered by independent-minded gatekeepers of flexibility, motivated by principle and not corrupt or politically compromised. Fortunately there are many such judges left in the UK.

    We rely on contributions to keep Cassandra Voices going.

    [i] Lewis Carroll, Alice Through The Looking Glass, Chapter 6, 1871.

    [ii] A. L. A. Hart, The Concept of Law, London, Clarendon Law Series, 1961.

    [iii] Ronald Dworkin, Laws Empire, New York, Belknap Press, 1986.

    [iv] Oliver Wendell Holmes, The Path of the Law, 10 Harvard Law Review, 1897 457-58

    [v]  E.P. Thompson, Whigs and Hunters, London, Allen Lane, 1975, Appendix 1.

    [vi] Gustav Radbruch, Five Finutes of Legal Philosophy, 1945

    [vii] Radbruch Gesetetchiches Unrecht Und Bergesetiches Recht Sufddeutsche Juristrazeitung (1946), p.107

    [viii] A. L. A. Hart, Positivism and the Separation of Law and Morality, vol 71. 1984, p.617.

    [ix] Lon L. Fuller, Morality of Law, 1964, New Haven, Yale University Press, 1964, p.660.