At their inauguration, public leaders
must swear to uphold unwritten law and weep
to atone for their presumption to hold office – Seamus Heaney, ‘From the Republic of Conscience’
With a Dublin Central by-election on the horizon, Irish politics appears to be descending into GUBU. The ‘grotesque, unbelievable, bizarre and unprecedented’ prospect of alleged crime boss Gerry ‘the Monk’ Hutch taking a seat in Dáil Éireann looms large in a May by-election triggered by the resignation of former Finance Minister Paschal Donohoe.
Supreme Court Justice Peter Charleton once inquired as to why I pleaded for John Gilligan not as a gentleman, but as a self-employed businessman. Gilligan’s singular presence and the shadow over the murder of Veronica Guerin engendered the Criminal Assets Bureau and The Proceeds of Crime Act 1996. This was the beginning of the end for Due Process in Ireland. In the interim, one form of organised crime mutated into another via NAMA and offshore accounts. Thus, Ireland’s Gangster Inc. of Cuckooand Vulture Funds was born.
Of course, Gilligan never held political office, but Hutch’s candidacy and near election to the Dáil in 2023 begs the question as to whether an alleged crime boss ought to be barred from holding political office. Any such prohibition would raise questions of definition, and indeed whether the activities of present or former office holders, including at least one former Minister for Justice I can think of, might fit that description.
There are obvious examples of corrupt politicians such as former Fianna Fáil T.D. Liam Lawlor, paid a small fortune by Beef Baron Larry Goodman, who remains one of the state’s richest citizens. During the 1980s a rogue’s gallery of grafters made their home in Leinster House. Today’s white collar criminals keep their finger nails clean, if not their toe nails, which remain firmly embedded in the dirt.
A drawing of Ned Kelly on a wall in Melbourne.
Art Imitating Life?
A hagiographic play recently staged in Dublin’s Ambassador Theatre offered an alternative take on the staid format of the party-political broadcast. Remarkably, the eponymous hero of ‘The Monk’ made a surprise appearance on stage on the opening night, taking part in a fictional live question-and-answer session with playwright and performer Rex Ryan.
The lineage of conventional – as opposed to de facto – Irish gangsters proceeds from Martin Cahill to Gilligan and the Kinahan Cartel, and on to Gerry Hutch. The Irish media display a morbid fascination mixed with veneration for their undeniable chutzpah – Martin Cahill’s costume clown appearances on multiple court appearances springs to mind.
It is certainly not an exclusively Irish phenomenon. In his autobiography, Geoffrey Robertson KC describes his fellow Australian’s veneration of the Wild Colonial Boy, Ned Kelly. Further evidence emanates from the global success of Francis Ford Coppola’s The Godfather (1970), or the many films of Martin Scorsese exploring mobsters’ lives.
It should be acknowledged that politics has always had close associations with crime, and not just in a state such as Italy under Andreotti or Berlusconi. The distribution of patronage and the promulgation of laws are often to the benefit of sectional, corporate or individual interests, who endeavour, and often grease, political machines with filthy lucre.
A dirty business requires forensic and independent journalism, and may even compromise those intent on cleaning it up. JFK’s brother Bobby went full throttle against organised crime post-election, but the former seems to have relied on shady elements to win the Presidential election. That unrequited love may have led, one way or another, to Dallas, Texas.
As Boby Dylan put it in ‘Murder Most Foul’:
Then they blew off his head when he was still in the car
Shot down like a dog in broad daylight
‘Twas a matter of timing and the timing was right
You got unpaid debts and we’ve come to collect
We’re gon’ kill you with hatred and without any respect
We’ll mock you and shock you, we’ll grin in your face
We’ve already got someone here to take your place
…
That’s the place where Faith, Hope and Charity died
That infamous day certainly paved the way for the cabal now in office: ‘Business is business and it’s murder most foul.’
Terrorist to Law-Maker?
A criminal and law-breaker, or even a terrorist, can also become a unifying figure like Nelson Mandela, a national hero such as Michael Collins, or more ambiguously, a peacemaker like Gerry Adams. Perhaps Gerry Hutch is on his own Road to Damascus. He certainly portrays himself as a latter-day Robin Hood, bent on exposing the criminality of Garda Síochána. Who knows what he’d come out with under Dáil privilege. If so what could he achieve?
Gary Gannon, the pearl-clutching Social Democrats T.D. from the same constituency claimed to have been shocked at seeing Hutch on the ballot paper last time out. Former Taoiseach, and legendary recipient of brown envelopes, Bertie Ahern described Gannon’s comments as ‘absolute nonsense,’ and noted with moral ambivalence and some subtlety:
Gerry Hutch has been around as long as me. I won’t get into morals or ethics but I have trampled that ground for 40 years and Hutch has been kind to the community in Dublin Central in indirect ways. Whether we like it or not, he is respected by people which explains his 3,000 votes. It is not just younger people voting for him, older people I know voted for him. We can all say the self-righteous things we want but the reaction is what it is.
It is noteworthy that Ahern’s political machine was colloquially known as the Drumcondra Mafia. At least when Hutch was growing up in the area, there were few options other than criminality for raising oneself out of poverty. Moreover, as Balzac put it: ‘Behind every great fortune there is a crime’ Which among the wealthiest individuals in Ireland have not soiled their bibs?
The distinction between conventional robber and a new breed of corporate robber barons is unclear, or how to evaluate it in ethical or moral terms. Perhaps the writ of the Monk is preferable to the Cuckoo Funds making housing unaffordable for most of the population?
George Galloway making his post-declaration speech at the 2024 Rochdale by-election.
Protest Vote
By-elections are an ideal opportunity for one-off protest votes. Consider the recent case of George Galloway who won the seat of Rochdale by a landslide in 2023, before losing it in the 2024 U.K. General Election.
The Irish diaspora have long been adept at bringing out the vote, arranging transfers, and indeed scouring electoral registers for the dead and the dying. Gerry Hutch has called on disenfranchised citizens to register to vote – just as the Democrats in the U.S. continue to leverage disenfranchised minorities.
His candidature is not unlike what one used to see in the U.K. with the Monster Raving Loony Party and Screaming Lord Sutch. Yet Hutch stands a real chance. And what if one were to advise him, however guardedly, on how to beat the established parties?
Garnering acceptance among floating voters, and picking up precious transfers, would require him to articulate political objectives, at least in outline. Apart from being critical of the conduct of the Gardaí, what does he stand for?
The Dublin Central constituency has some of the worst poverty in the state, alongside new hipster wealth and significant immigration in recent years. A manifesto of sorts would be worthwhile, addressing the concerns of native Dubliners in particular, and hopefully encouraging greater acceptance of diversity. Tony Gregory brought great benefits to the area. An independent candidate like Hutch might be able to perform a similar role.
Corruption ought to be condemned, but violence should never be condoned. A reformed Hutch might have greater clout among troublesome elements than most politicians when addressing the current wave of violent crime. Recent fuel protests reveal Ireland to be on the brink.
It remains to be seen whether Gerry Hutch has any real ideas for addressing the enduring problems of access to housing, health and education, or the increasing lawlessness in city centre, as the State continues to fail in its primary duty to keep the peace.
Tom Wolfe in 1988.
Radical Chic
Tom Wolfe in his 1970 New Yorker essay ‘Radical Chic: That Party at Lenny’s’ used the term to satirize composer Leonard Bernstein and his friends for their absurdity in hosting a fundraising party for the Black Panthers. Wolfe’s concept of radical chic lampooned individuals (not unlike jet setters such as Paddy Cosgrave and his ‘Whistleblower’ Café) who endorsed leftist radicalism to affect worldliness, assuage white guilt, or garner prestige, rather than to affirm genuine political convictions.
In short, Radical Chic is described as a form of highly developed decadence; and its greatest fear is to be seen not as prejudiced or unaware, but as middle-class. One suspects, however, that their Irish equivalents would be wary of Gerry Hutch, but let’s see.
At one level I endorse his candidature as a means of giving the establishment a kick up the posterior, but it remains to be seen whether he possess any real ideas for addressing the issues I have alluded to. In the Kingdom of the blind, the one-eyed man is king. Perhaps the best that can be said of Gerry Hutch is that he might prove to be a superior form of gangster than the rest.
Ryszard Kapuściński in Imperium (1993) warned of three plagues, or contagions threatening the world: nationalism, racism and fundamentalism. He further identified one shared trait or a common denominator in ‘an aggressive all powerful total irrationality,’ arguing that ‘[a]nyone stricken with one of these plagues is beyond reason. In his head burns a sacred pyre that awaits its sacrificial victims.’
The lunatics have now well and truly taken over the asylum worldwide. We are now witnessing a new unholy war being led by evangelical Christians against Islam, just as earlier crusades emanated from Europe in the Middle Ages. And like those earlier wars, the acquisition of plunder is clearly a motivating factor.
Noticeably, the clearly sociopathic Pete Hegseth talks of the Iran war as God’s War, and the soldiery are briefed accordingly. Trump uses similar language, but holy wars often occlude terrestrial agendas. Add the dimension of rampant technology, wherein war is conducted remotely in video game sequences and one reaches a level of savagery reminiscent of the 1940s. Meanwhile AI plunders our libraries and distorts our reality with propagandist bombast.
Hegseth’s macabre ceremonies in the White House have included Doug Wilson, the founder of the Communion of Reformed Evangelical Churches. He has stated that homosexuality should be a crime and that women shouldn’t be allowed to vote. As editor of The Princeton Tory, Hegseth also suggested that homosexuality was immoral.
In March 2026, soon after the start of the U.S./Israeli attack – branded with the biblical denotation Operation Epic Fury – it has been reported that military leaders told their service members that the war was ‘part of God’s divine plan,’ and that President Donald Trump had been anointed by Jesus. One commander quoted the Book of Revelation, and said the war will bring the second coming of Jesus Christ. The whole exercise has a distinct air of Stanley Kubrick’s Dr Strangelove (1959).
The legendary punk band, The Dead Kennedys album In God We Trust Inc (1982) curiously presages our times, but none of what is being done in God’s name is properly Kennedyesque, or indeed genuinely Christian. It appears to be an extension of what Eisenhower warned of the existential threat of the Military Industrial Complex. Wars. As IG Farben and Bleichroder knew, wars are a great source of revenue.
The leading Catholic legal philosopher John Finnis is also a believer in God’s law. Marriage is for him exclusively between a man and a woman and purely for procreation. He considers homosexual congress and sex outside marriage as intrinsically shameful, immoral and harmful. In Natural Law and Natural Rights (1980) he compares abortion to carpet bombing civilians. Sadly, murdering the civilian population of Iran does not appear to bother the zealots in the White House to the same extent as interfering with women’s reproductive rights.
Jonathan Sacks, the leading contemporary Jewish philosopher in the U.K. railed against extremism. In Morality (2020) he outlined positive religious values, including a focus on dignity, associative levels of responsibility, community and a sense of public service and the common good. Is all of this now lost on the Likud faction in Israel?
Christian jihadism, historically, also includes the horrendous conquest of South America by Spanish Conquistadors. In modern times the Blairite justification, couched at one level in Christian terms, for the war on Iraq was also used to mask narrow self-interest in securing oil. The war in Iran, now engulfing the entire Middle East, also has significant acquisitive elements, but is more obviously an attack on what is perceived in racial terms as a satanic culture.
Shortly before his death Sacks equated altruistic evil with the neoconservative group, who held themselves to be good and their opponents to be evil. This leads to the arrogant imperialist assumptions that ‘we’ are inflicting punishment for ‘their’ own good, and that killing multitudes will pave the way to democracy.
Both the late Christopher Hitchens, and indeed Richard Dawkins, have written extensively about the new forms of religious extremes we are witnessing, with the finger of blame primarily pointed at Islam. Islamic extremism does provide graphic examples of brutal beheadings, mass executions, stoning to death for adultery, planes hitting the Twin Towers, as well as the murder of journalists. There is also evident in Britain a lack of integration, and a secessionism unconducive to any kind of harmonious multiculturalism. Recourse to genocide, however, seems to be the preserve of evangelical Christians and Zionists.
Osama bin Laden (L) sits with his adviser and purported successor Ayman al-Zawahiri (Foto: HO/Scanpix 2011)
Islamic Rage
Much of the Islamic rage can be traced to neo-imperialism in the Middle East. The current phase began in earnest with the invasion of Iraq, and has culminated in this attack on Iran.
Christopher Hitchens’ worst intellectual error, inexcusable in my view, was to support the Bush-Blair invasion of Iraq. He was, indirectly, supporting, though he might not have seen it, an even worse form of religious fundamentalism directed against another.
In works such as Culture and Imperialism (1994) and Orientalism (1978) the Palestinian author Edward Said author asserted that ‘Patriotism, chauvinism, ethnic, religious and racial hatreds can lead to mass destructiveness.’ He cites our own Conor Cruise O’Brien to the effect that imagined communities of identity are hijacked by the petty dictators of state nationalism, like Benjamin Netanyahu.
In Marxist terms, religious fundamentalism can be traced to growing disparities of wealth and structural inequality, as well as a lack of opportunities to gain a rounded education. We have seen an all-too-great an emphasis on technical or scientific education for economic advancement, as opposed to a broad liberal education that inculcates critical thinking.
In these straitened times extremism speaks of a need to belong to a cause, leading to belief in something ethereal, no matter how ludicrous. Belief in an afterlife defines people’s existences and justifies even self-immolation.
As the wheels come off the neoliberal economic system and the societal bonds wither, extremist Christian nationalism and the demonisation of the other has stepped into the void to provide solace.
Passion Conferences, a music and evangelism festival at Georgia Dome in Atlanta, Georgia, United States, in 2013.
U.S. Evangelism
In the United States, we are witnessing an unholy synergy between Evangelical Christians and racism. Far-right demagogues have articulated a view that ‘our’ country is being overrun by immigrants and that the dominant ethnic group must ‘take back control’ from a phantom intellectual Marxism espoused by liberal elites, Harvard or straight socialism. All of these apparently emanate from the decadence of a mixed race cosmopolis. The fire is spreading to Europe, U.K and Ireland too.
Thus, we find a global descent into the extremist and racist abyss, where those we disagree with are scapegoated and targeted. This is a product of a dualistic mode of thinking, which Sacks identifies with a need to define God in relation to the Satan residing in others. This leads to the demonisation of those we disagree with, evident also in social media vilification.
What the Christian far-right in the United States and elsewhere offer is the establishment of the Kingdom of Heaven on earth, which involves isolation of the righteous few in gated communities, segregating the rich chosen people from the disaster they inflict on others.
The now tarnished Noam Chomsky once claimed that the Republican Party is the ‘most dangerous organization in world history.’ Chomsky also claimed in a BBC Newsnight interview that nearly 40% of the American public believe that the Second Coming will occur by 2050. So, Pete Hegseth may be preaching to the converted.
Brazilian President Lula with Pope Francis 21.06.2023 Foto: Ricardo Stuckert/PR
Religion as Agent for Good?
Alternatively, in The Godless Gospel (2020) Julian Baggini calls for forms of religion shorn of hatred so we may realise our best intentions and develop empathy and compassion. He envisages a commitment to personal humility and an obligation and commitment to the truth, causing as little harm as possible. There are clearly good values that Christianity may teach to those of a secular persuasion presently lacking in moral clarity.
Above all, the atheist and perhaps the leading intellect left on the planet Jurgen Habermas recognises how religion engenders social integration, and can be a basis for communicative action, his core concept. As far back as 1978 he argued, from a secular perspective, for the necessity of religious ideas to humanise society. These would be religious ideas where we learn to communicate reasonably without resort to falsetto Jihadism.
The former Pope Francis’s experiences in the barrios of Buenos Aires also appear to have shaped an empathy towards the wretched of the Earth. He preached tolerance and engagement, as well as social and economic justice. The present Pope has, encouragingly, in un-American fashion, condemned what is happening, however mutedly. Let us hope that he is untainted by the dark money of the Vatican and does not go the way of John Paul II.
Christian socialism is a potentially vital force if it reflects the values of what Philip Pullman calls that great man Jesus, but not the values, as he equally presents, of that scoundrel Jesus Christ. This latter is a distortion of New Testament values, dedicated to the accumulation of capital, a lack of compassion and political manipulation.
Neo-feudalism
We appear to be witnessing Old Testament fury, but beyond the zealotry it seems that neoliberalism is morphing into neo-feudalism. The Book of Genesis sanctions man’s dominion over the Earth, which appears to be permitting a scorched earth approach, but this is a smoke screen. Institutional Evangelical Christianity is wedded to the exchange of goods, along with the exchange of gods. Drill Baby Drill.
The last word I leave to Clarence Darrow, who represented a progressive America of another era in his closing speech in The Scopes Trial:
Ignorance and fanaticism are ever busy and need feeding. Always it is feeding and gloating for more.——-, it is the setting of man against man and creed against creed until with flying banners and beating drums we are marching backward to the glorious ages of the sixteenth century when bigots lighted fagots to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind.
Those who suffer from toxic nationalism, toxic religious mania and toxic racism are beyond reason and must be overcome.
Feature Image: Some of Pete Hegseth’s tattoos, 2021
A reliable source, who happens to be representing him, now informs me that Banksy is to be prosecuted over his RCJ mural. This form of artistic censorship, leads me to consider the important role that art has played in terms of political commentary, and how some of the masterpieces in this genre resonate with contemporary events.
Many of the atrocities of our time are today hidden from view, as computer game technology permits de-humanised genocide. War reporters are often banned from reporting on the ground, or if they do they are generally ’embedded,’ as tools of propaganda. There is no Robert Capa or Don McCullen visible in this age. As a result, death and barbarism are remote, with disinformation omnipresent. Thus we rely on an artist such as Banksy to redress the imbalance, and provoke a moral response.
Today we can, at best, only partially bear witness to our reality. The news media offers up a version akin to a flame throwing shadows on the wall of a cave. Previously art engaged more closely with politics, but today few artists speak to our time.
Many great artists throughout history have of course remained non-political and focused on the human condition. Moreover, political art often veers into dogmatism – recall socialist realism or Italian fascist art. One must carefully distinguish art from propaganda. Satire and caricature walk an uneasy path in this respect.
The origins of European art lie in the depiction of mainly Biblical scenes, which yielded little of an overtly political nature, although the proton-surrealist work of Hieronymus Bosch especially ‘The Garden of Earthly Delights’ (1490) speak of a world of chaos and brutality. This is not dissimilar to our present universe. Depictions of hell provide a commentary on social entropy and evil.
Among the pioneers in depicting ordinary human life was the Flemish master Peter Breughal the Elder. Scenes of social gatherings and festivities contain subtle and unobtrusive political messages. So, for example in the ‘Census at Bethlehem’ (1566) you have to look very closely to find Jesus and Mary arriving in on a donkey and trap amid representations of peasant life. His paintings provide hints into the nature of the institutions and practices of the time, and the plight of poor folk.
In Renaissance Italy Titian and Raphael’s Cardinals often show cruelty or majestic temporal power. In those hardened faces one often gets a sense of that time. The demonic religious paintings of Caravaggio are almost a textbook exercise in conspiracy, murder and intrigue. How much fun would he have hid with the Jeffrey Epstein revelations!?
Mary and Joseph are registered in the census at Bethlehem.
Durer and Beyond
The only Renaissance giant who is markedly different, and often avowedly political by way of mysterious and hidden social commentaries, is the great German painter Albrecht Dürer. It is the woodcuts and the lithographs where the apocalyptic commentary is most evident. The fourth woodcut of his Apocalypse cycle ‘The Four Horsemen of the Apocalypse’, (1497) depicts the first four of seven seals that must be opened for the Apocalypse to begin, These are Conquest, War, Famine, and Death. All are now evident internationally.
In the famous engraving ‘Knight Death and Devil’ (1513) the knight seems resigned, and his facial features are downcast with the devil enveloping him. It is believed the portrayal is a literal, though pointed, celebration of the knight’s Christian faith, and of the ideals of humanism threatened or protected by the fox.
The engraving Melancholia (1514) is a magus of ideas, clearly influenced by paganism, alchemy, and astrology – the dark demonological arts. It is also a cold mathematical work and exercise in numerology. It contains a brooding central figure, best represented as an allegory of the limits of reason, and a personal or collective descent into madness when reason no longer makes sense. To anyone scrolling through Twitter on a daily basis this may sound all-too-familiar.
William Hogarth’s tremendous political engravings are also worth mentioning in respect of contemporary afflictions. His most famous print, Gin Lane (1751) graphically depicts infanticide, drunken oblivion, disinterment of corpses, starvation, beggary, poverty, impalement, suicide, debt, debauchery and the collapsing buildings of society. Also notable are his anti-corruption election cartoons such as An Election Entertainment (1757).
Hogarth’s only contemporary competitor was James Gilroy and his famous ‘Plum Pudding in Danger’ (1805), which seems most apt for our present world, dividing into competing trading blocks. In this Napoleon and Pitt divide the world up and gorge themselves. Napoleon is cutting away a slice of land to the east of the British Isles marked ‘Europe’, but his piece of land is much smaller than Pitt’s portion of sea. The inscription reads: ‘state gourmets taking a little supper’. Greenland, Ukraine take your pick.
Goya is the greatest political artist of them all in my view. In his oeuvre we encounter a treasure trove of commentary for our time. First and foremost, there is the incredible execution painting ‘The Third of May’ (1808), revisited by Manet, as well as lithographs of torture and brutality. His work curiously presages contemporary debauchery and cannibalism, societal and solipsistic that is.
French Revolution
In the same period there is the great portrait painter of the French Revolution and the Napoleonic era Jacque-Louis David. Some might consider his Neo-Classicisal style a little austere, but it’s nonetheless worthwhile visiting the main gallery in Bruges just to see The Death of Marat (1793).
David was a propagandist for the Jacobins. Marat, the Montagnard faction, was murdered by Charlotte Corday, who supported the opposing Girondins. She blamed Marat for his involvement in numerous executions that had taken place during the Terror quite correctly, but the painting strengthened support for the Montagnards as David successfully presented him as a tireless revolutionary betrayed by conniving forces. A martyr covered in a holy glow, taking his last breaths, with revolutionary pen in hand.
Indeed, the Reign of Terror only heightened after this painting’s release and after the Revolution, Jacques-Louis David shifted allegiance to the Emperor Napoleon, for whom he produced fawning political art including The Coronation of Napoleon (1807). Admirers of the Marat painting should read Albert Camus’s The Rebel (1951) as to the true Marat and the extremist terror.
A near contemporary of David, Delacroix of course creates the famous painting of the flag and revolution Liberty Leading the People (1830), but we should be cautious about that French notion in its unrestrained form, certainly at this juncture, although the argument for protest and change are greater than ever.
Death of Marat by David
Greatest Epoch
The greatest epoch in my view for political art was just after World War I. Many artists experienced the devastation of the trenches, and used this to condemn bellicose militarism. In the Weimar Republic we find the apogee of political art and social commentary through caricaturists such as George Grosz, and Otto Dix. No wonder the Nazis considered this degenerate art.
If you look at Grosz’s inelegantly titled Pillars of Society (1926) – with the superior subtitle Shit for Brains – you will see one of the paragons of virtue, with, well, shit for brains. It anticipates disaster as the economy collapses, while the Nazi judges and commissars worked hand-in-glove with their jackboot associates.
The etchings and paintings of Otto Dix also perfectly capture the collapse, most obviously The Match Seller (1920), The War Triptych or the engraving Stormtroopers Advance Under Gas (1924). These are among the greatest anti-war works. He survived the Somme and intellectual pretentiousness to produce paintings of the calibre of Portrait of the Journalist Sylvia von Harden (1926).
Close to the Prada hangs the most monumental work of political art. To see it in the flesh is extraordinary. That is Picasso’s fatal depiction of the massacre of the innocents during the Spanish Civil War Guernica (1937). It now hangs symbolically now over Gaza or The Ukraine as a rebuke, as is the core symbol the dove of peace.
The Spanish Civil War produced many other great works of art particularly the photography of Robert Capa, which is disturbing in its brutality, as are the later pictures of Cartier Bresson after the liberation of Paris where collaborators were made examples of. Likewise, the extremism of our time cuts in all sorts of ways, as does the demonisation of those we disagree with.
Other great war photographs show the aftermath of Hiroshima and the liberation of the Concentration Camps, documented in Resnais documentary Night and Fog (1945). Unforgettable also is the photography of the bullet to the head of the Viet Kong activist. Even in this de-sensitised social media age that still has the capacity to shock.
Picasso’s Guernica.
Animation and Cartoons
Animation substantively begins with Walt Disney, and his films are at times wonderful and at other times an expression of crass American values. The figure of Cruella de Ville from The Dalmatians appears crucial to our time, conveying the theme of the murder of the innocent for personal self-aggrandisement. A few contemporary figures would appear well equipped for the role, Ghislaine Maxwell in particular.
The greatest cartoonist of all was the Belgian Hergé (George Prosper Remi), who has been accused, unfairly, of fascism for writing for Le Soir during wartime. This is an accusation almost as absurd as that levelled against P.G. Wodehouse, which is not to say that the character of the creator of the immortal Tintin is unimpeachable.
Literary critic Jean-Marie Apostolidès identifies the character of Tintin as representing a personification of the ‘New Youth’ concept promoted by the European far-right. Indeed, Tintin in the Land of the Soviets (1930) was a work of anti-socialist propaganda, but then, in fairness, Tintin in America was designed as a work of anti-Americanism, highly critical of capitalism, commercialism, and industrialisation.
Many would counter that Hergé was far from right-wing, as exemplified by his condemnation of racism in the United States in the introduction to Tintin in America (1932), and that the wonderful The Blue Lotus (1936) took a distinctly anti-imperialist stance, unlike Tintin in The Congo (1931), which has shades of Colonel Kurz. During the fascist era he did not join the far-right Rexist Party, later asserting that he ‘had always had an aversion to it’ and that ‘to throw my heart and soul into an ideology is the opposite of who I am.’
From his earliest years, Hergé was openly critical of racism. He lambasted the pervasive racism of U.S. society in the prelude to Tintin in America published in Le Petit Vingtième on 20 August 1931, and ridiculed racist attitudes toward the Chinese in The Blue Lotus.
Whatever the ambiguity, the art is riveting as Vietnamese-American novelist Viet Thanh Nguyen observed: ‘Hergé’s work is deeply flawed, and yet riveting narratively and aesthetically. I have forgotten all the well-intentioned, moralistic children’s literature that I have read, but I haven’t forgotten Hergé.’
Of moralism and cartoons Roald Dahls illustrated by Quentin Blakes books are less ambiguous and more unsettling as portrayals of human evil and the macabre. not least the character of Willie Wonka. His character anticipates the soma-induced greed of our age.
Animation has of course transmogrified into manga and anime, where the master is Miyzaki. In My Neighbour Totora (1988) the forest is warding off the evil spirits. Gai regenerating as when the industrial demons are confronted and beaten in his ecological masterpiece Princess Mononoke (1997). A little spring blossoms.
Preserve his Anonymity!
“Lilies that fester smell far worse than weeds.” David Langwallner discusses the recent Banksy memorial in terms of the right to protest and its limitations.https://t.co/nBLYDJpWGp
The important role of art as a form of political commentary should be re-asserted, and the forthcoming prosecution (if my source is to be believed) of Banksy sets a very dangerous precedent. It sends out a clear message to other artists, and will have a chilling effect in all likelihood. At the very least Banksy’s anonymity should be preserved in the event of him being prosecuted. Very few comment in a visual form so presciently on our times. He is the greatest political muralist since Diego Riveria, and the world needs more, not less, political art as a way of vitalising people and as an antidote to propaganda.
Feature Image: The Plumb-pudding in danger; – or – State Epicures taking un Petit Souper by James Gillray
The European Convention on Human Rights (ECHR) is perhaps best understood as the culmination of the Enlightenment tradition of constitutionalism, hedged in legalistic language of proportionality and balance. It asserts that people have a right – or at the very least the right to have rights – to rely on the Convention when a domestic state has been derelict.
It has been invoked successfully on many occasions against Ireland, most obviously with Mary Robinson’s enlistment by David Norris in 1990 to establish his right to privacy in terms of the criminalisation of homosexuality, in circumstances where the Irish domestic Supreme Court decided against him. That challenge fell within the rubric of Article 8 of the Convention: respect for your private and family life.
The prohibition against torture and inhumane and degrading treatment under Article 3 of the Convention has protected Irish people in the infamous H Block 5 techniques case Ireland v U.K. (1979).
Using the same Article 3, the ECHR sanctioned the rogue police state in the Greek case of The Regime of The Colonels (1966), and multiple human rights cases for the actions of various police forces not least in Turkey – referred to in a recent Cassandra Voices Podcast and article. It is noticeable that it has been extended to mental suffering, including demonisation by race. With ever more advanced techniques of torture, abuse and degrading treatment that extension was a jurisprudential necessity.
A new podcast and article discuss fresh crackdowns targeting the Istanbul Metropolitan Municipality, with Fatima Akman Lehmann joining Luke Sheehan.https://t.co/nQzOJ3bxCP
The track record of Ireland’s noncompliance does not make for pretty reading, not least the Norris Case. In many recent cases, given the fractured incorporation of the Convention, we have witnessed the development of the sinister interpretative obligation where the Convention is ignored if a constitutional principle applies, however dubiously, or as in the recent cases of Quirke and Dwyer, where the Irish courts used police powers and data protection to sidestep the Convention and thus entirely undermine its legal application.
Along with others, historically we have been a rogue state in Convention compliance terms, and contrary to the view of Gerard Hogan our Constitution is a paltry substitute, not least given the diminution of Due Process by the Irish judiciary, which, in fairness, Hogan sedulously opposes.
Now, with Minister for Justice O’ Callaghan leading the way, a joint statement of The Council of Europe calls for Article 8 of the ECHR, which protects the right to a family life, to be ‘adjusted so that more weight is put on the nature and seriousness of the offence committed and less weight is put on the foreign criminal’s social, cultural, and family ties with the host Country.’
It also call for the crucial Article 3 to be ‘constrained to the most serious issues in a manner which does not prevent State Parties from taking proportionate decisions on the expulsion of foreign criminals, or in removal or extradition cases.’
The joint statement also stresses the importance of ‘a states’ right… to control the entry, residence, and expulsion of foreigners from their territories, which should guide the interpretation of the Convention.’
Immigration has been the vexed question of our age, and the use of the word foreigner in the above statement is a deeply divisive word. There should be no such expression allowed in any language, only people. None of us are pure blood. The word “foreigner” in this context is meaningless.
My experience of the ludicrous Irish refugee tribunal system was that the vast preponderance of claims were rejected, and if a tribunal chair had the temerity to admit to more than a minuscule amounts of claims he or she would be removed. The Cosma case (2006) – involving suicidal ideation – I litigated with Gerard Hogan in the High and Supreme Courts sidestepped Article 2 of the convention, in circumstances where there were tangible psychological reports. English tribunals are better but increasingly restrictive, albeit educated English judges tend to respect the Convention.
In the Irish system I encountered judgments of monumental absurdity, involving ill-informed credibility assessments.
It should be born in mind that many of those who seek asylum have been falsely convicted or framed by state criminals. Turkey comes to mind. When someone is accused by criminals of being a criminal the term loses any meaning.
In all this the lessons of history and the reason why the Convention was founded are lost. Let us consider, therefore, given my mixed Austrian-Irish heritage, the respective experiences of forced or compulsory immigration in both these countries.
In some cases, as in that of legendary Austrian-Jewish writers such as Joseph Roth, Stevan Zweig and indeed the very elderly Sigmund Freud forced migration was a consequence of real or prospective political persecution, and what is known as non-refoulement is a central part of immigration law, which is a well-founded fear of political persecution.
That was during the last epoch of real barbarism. It’s clear that we are now returning to similar depravities, as the gyres of history turn.
Apart from writers and intelligentsia who were often thoroughly disenchanted with the place, most of those leaving the country have done so for economic reasons. In more recent times, if not always, we have been welcomed into the U.K. and U.S.. Sadly, we no longer live in a world that extends a welcome to the poor huddled masses. And despite others welcoming the Irish, apart from welcoming tourists and accommodating multinationals, we have never really been the land of a thousand welcomes.
Sideshow and Deflection
The immigration issue is in fact a sideshow and deflection, where fag end capitalism foments hatred and discord, turning people against each other. It is often used to deflect attention from governmental inaction in housing and substantive equality matters.
The Irish approach seems to be move immigrants down the canal, or use Gastarbeiter who pay exorbitant fees to shady educational institutions, but keep refusing them settled status.
In a separate initiative O’Callaghan has a point about working immigrants contributing to accommodation costs, and no doubt family reunification issues do require careful consideration, especially with respect to the costing of whether those who come in can be supported by family members, but any denudation of Article 3 opens up a dangerous vista.
Violent demonstrations and attacks on particular nationalities suggest that Irish parochialism and indeed racism have reached unprecedented levels. This is also the case in the rest of Europe and the UK. Let us consider the larger context.
First published in 1918, and translated into English in 1926, Oswald Spengler’s The Decline of the West was perhaps the most influential text of the 1930s. Spengler blamed what he saw as a declining European civilisation on the dilution of a mythical Aryan race – whether Germanic or Anglo Saxon. Spengler influenced Hitler and provided an ideological impetus for the extermination of undesirable races in the Holocaust or Shoah.
Moreover, our age of chaos and uncertainty allows strongman leaders like Viktor Orban (whose Hungary signed this document) to assert as policy demonization of the other. If you listen carefully enough you will recognise that the Social Darwinism of another age is also the rallying cry of neo-liberalism, as an age of cartels and select groups brings exclusion and enforced conformity against others.
It hardly matters to racists, who do not believe in science or empirical evidence, that there is zero evidence for the concept of race, as geneticists have worked out that every person on Earth can trace a lineage back to a single common female ancestor – a Mitochondrial Eve – who lived around 200,000 years ago.
Franz Fanon
Reproducing Colonialism
Who is not a foreigner and what the hell does that mean? In works such as Culture and Imperialism (1994) and Orientalism (1978) Edward Said argued that ‘Patriotism, chauvinism, ethnic, religious and racial hatreds can lead to mass destructiveness.’ He also cites our very own Conor Cruise O’Brien to the effect that Imagined Communities of identity are hijacked by the petty dictators of state nationalism.
Meanwhile, Frantz Fanon’s seminal anti-colonial text The Wretched of the Earth (1961) demonstrates how the indigenous population is required to pay the debts of the occupying powers.
This is now being reproduced in our own societies in the form of austerity. The occupying powers are now the corporatocracy, or those with inherited wealth. The only difference from the colonial period is they no longer exclusively come from a distinct ethnic group. In fact, a veneer of diversity is achieved with the promotion of a few specimens with varied pigmentation. Leo Varadkar comes to mind. As long as they embrace safe, politically correct policies that ignore structural racism they become one of us.
What Fanon said is true both of former colonialism and now internal colonialism by corporate vulture and hedge funds with politicians as puppets: ‘The people’s property and the people’s sovereignty are to be stripped from them.’
Furthermore, with respect to the assault on Article 3, certain Irish nationals might nativistically welcome this without understanding that its denudation, in conjunction with the already denuded due process, ushers in the potential Article 3 violation of Irish citizens in Ireland.
We are on a slippery slope to a larger police state.
The previous site of the heavy gang on Harcourt Street may already be equipped with physical and newly given psychological torture techniques derived from American institutions. Be careful what you wish for citizens.
Thus we find an increasing differentiation between ‘them’ and ‘us’, involving unedifying forms of class warfare and demonization of those outside the dominant culture, whether foreigner, migrant or displaced. ‘Killing an Arab’, the central theme of expurgation of ‘the other’ in Albert Camus’s L’ Étranger is now writ large in our culture.
Camus, in my view the greatest writer, humanist and intellect of the 20th Century with his Shakespearean mixed-race native ambivalence is a ghostly prophet of the way we live now.
Well before fascism there was of course widespread hatred of the wandering and or wealthy jew. The rebranding of Herzog Park in Dublin might be part of a resurgent anti-Semetism. Why not rebrand it Wittgenstein Park, after one of the great intellects of the 20th century, who is merely awarded a humble plaque in the Aishling Hotel.
Albert Camus in 1957 by Robert Edwards
End of an Era
We are seeing a growing hostility towards miscegenation, mixed marriages and corruption of bloodlines. Members of the blue-blooded, ‘Anglo-Norman’, Fine Gael party display an absurd sense of entitlement, while many Fianna Fáil members appear to be card-carrying racists, while a vigilante Catholic Right inveighs against alleged paedophiliac Asian men, while ignoring the litany of its own abuses.
All is not lost in Britain, though the rise of Tommy Robinson and co does not augur well. Even in the polyglot cosmopolis – the ultimate melting pot that is London – the sense is that multicultural tolerance has been eroded substantially, and is being replaced by fractious intolerance, racism, class warfare, intimidation and social fragmentation.
The Post Second World war humanist consensus is almost gone.
The words of Stefan Zweig, who committed suicide in Brazil after fleeing Hitler’s Europe are returning to haunt us: ‘I feel that Europe, in its state of degeneracy has passed its own death sentence.’
Feature Image: Syrian and Iraqi migrants arriving in Lesbos, Greece, in 2015 seeking refuge.
As I sauntered from the Old Bailey past the RCJ the Banksy painting caricaturing a judge attacking a protester was no longer even a ghostly shadow, but it very much remains in the public domain, after reports emerged that it had been reported as criminal damage.
On September 25, on Old Brompton Road, a comprehensive exhibition of Banksy’s work opened, which brazenly included the mural stencilled onto a different surface. This raised all sorts of issues about the commercialization of art and the edge of protest, not to mention whether or not he should be prosecuted.
Based on Fiat Justicia, Mr Bansky faces prosecution for the recent RCJ Mural as criminal damage. I also hear he may be charged with being in contempt of court, leading to his long anonymity being exposed. Being named and shamed is another feature of our hysterical times.
Recently, a bit like the opening to a P.J. Wodehouse novel, an erudite discussion was held among learned friends in the robing room of Hove Crown Court, steered by the most venerable member, as to whether the t-shirts, now selling fast, of this auspicious work should be deemed the proceeds of crime. The consensus was that in the U.K., post-conviction, the seller is responsible. Perhaps that is fanciful, but you never know.
Policy considerations were also broached, such as whether in prosecuting him would you create a martyr that would lead to more t-shirts being sold? Would the state then be complicit in facilitating crime not least by increasing his revenues.
Charles Dickens, his work the subject of many copyright violations and thieving particularly by Americans in his lifetime, expressed the view in Bleak House that it was far, far better to have nothing to do with the law. Well, it is certainly far better for the law to have nothing to do with Banksy, or is it?
The consensus in the robing room was that given he is profiting from the mural, there was a strong argument for a significant fine, with the trial perhaps being conducted through in camera proceedings, preserving his anonymity, with any receipts being diverted back into the criminal justice system.
Further, the venerable member concluded that he was inciting protest. The discussion took place over an entire lunch, and if any of us were briefed it would have occupied many days of court time, but should it occupy any court time at all is the real question?
Mr Banksy, I am reliably informed, arrived at around 4-5am masquerading as a delivery truck driver. There was just enough light to use his meticulously prepared stencil. It is not now simply guerilla art, but increasingly reflective on worrying times. Many people are in on the act.
The recreated version of the mural by Diiego Rivera, known as Man, Controller of the Universe.
Diego Rivera
Among the greatest painters of murals was Diego Rivera. His famous mural in the Rockefeller Center in New York was taken down because of his cheeky insertion of Lenin contrary to the edicts of one of the citadels of world capitalism. They destroyed it in violation of copyright law. An integrity right protects a work from being destroyed, mutilated or defaced or put it in an inappropriate setting.
Examples of violations include colorizing a black and white film such as The Maltese Falcon (1941), or including ad breaks during the Monty Python parrot sketch, or inserting cover ups of nudity, such as even in the Sistine Chapel, but outright destruction is rare. Indeed, there was uproar in Berlin when some of the murals on the Berlin wall were destroyed.
The Banksy mural was an insertion of overtly political content in a work of art, and the destruction or censorship of protest art has always been a feature of oppressive regimes. So, was the reaction disproportionate or ill-thought out?
Mr Banksy is a national treasure, and frankly as great an artists as any in England since Lucien Freud. I suspect any prosecution will backfire or has, revealing institutional incompetence and hubris.
The Banksy mural has significant political implications and presents authoritarian judges and the state cracking down on protest, not least in response to legitimate public outrage over Gaza, but what’s good for the goose is also for the gander. It is legitimate political art, but the regulation of protest as opposed to protest art is more complex now.
Jasper Johns’s ‘Flag’, Encaustic, oil and collage on fabric mounted on plywood,1954-55.
Protest Rights.
The flag of St George is also copyright protected, and very similar to the flag of Switzerland and indeed the Red Cross, but it has been traduced by maniacs spreading hatred and division. The visibility of the flag has increased significantly across England.
It is now the case that English, Irish and indeed American national identity is as fragile as the American flag fractured and loose as in the Jasper Johns painting. The Irish tricolour is also a symbol of unity of green and orange, but is now potentially divisive. Extreme nationalism, along with racism, is one of the scourges of our time. It is a reversion in my view to the 1930’s – symptomatic of a new dark age.
There is, of course, a marked distinction between genuine patriotism and the revival of tribalistic, exclusionary and racist nationalism. Not all patriotism to reference Jeremy Bentham is the refuge of the scoundrel.
But racism and chauvinistic nationalism go hand in hand and generally morph into fascism. The target is the excluded other, now the immigrant. Nigel Farage is now proposing to remove those without a settled status.
Timothy Snyder recently came off the fence in On Freedom (2024) labelling the alt-right fascists, after considering the etymology of the term. But is he also an enabler given some of the neoconservative views he has expressed?
Let us cease bandying about anodyne terms like crypto-fascism and use language with precision and exactitude. There are now fascists and a gathering mob, but this has been engineered by, and is under the control of, others. Who then are the enablers is the crucial question?
Is Banksy an enabler? I am not so sure
Source: BBC.
London Protests
On the streets of central London recently I was reminded of three things: John Reed and Ten Days That Shook the World (1919), his blow-by-blow account of the Russian Revolution; the scene in Cabaret (1972) where, semi-fictitiously, Christopher Isherwood decides to leave Berlin after hearing a version of Horst Wessel being sung. Finally, surveying the hate-filled eyes I was also reminded of Leni Riefenstahl’s Triumph of the Will (1935).
I would argue that a similar species of Irish hatred is more vicious but far less powerful in electoral terms, bu there is now a real danger of the extreme right winning power in the U.K..
Dozens of police officers were injured at the protests, yet only twenty-five arrests were made. The counter demonstrators, understandably smaller in number, were non-violent, and let us be clear that a right to protest is intrinsic to democracy. Peaceful protest that is, an idea as old as Gandhi or Martin Luther King. Yet there were 500 arrests made at the peaceful Gaza protests in early October.
This casts the right to protest into doubt, or at the very least demonstrates a need for greater regulation and proportionality. The insurrectionist riots and arson attacks on accommodation related to asylum seekers in Ireland in recent times is also a case in point, demonstrating the necessity of regulating (violent) protest.
The Just Oil protesters, with others to come, were convicted under the Police, Crime, Sentencing and Courts Act 2022(PCA) of conspiracy to cause a public nuisance, in response to the M25 motorway disruption in November 2022. Judge Hehir dismissed the defence of mere political opinion and belief as excluded from the present English legislation.
That decision undoubtedly opens a dangerous vista, but the crucial question is that of whether a demonstration potentially causes harm, and that one clearly could have caused harm, and it certainly caused a significant furore and inconvenience.
“Lilies that fester smell far worse than weeds.”
Orange lily
In the famous common law prosecution orange lily case Humphries v O’ Connor (1864) plucking an orange order lily from a woman in the nationalist area of Belfast was deemed a justifiable police act and regulation of protest, as the offending lily had the potential to cause a breach of the peace. This occurs when an individual causes harm, or if it is likely that they will cause harm to another individual or property, or if it puts another person in fear of being harmed.
As Shakespeare put it in Sonnet 94:
For sweetest things turn sourest by their deeds;
Lilies that fester smell far worse than weeds.
But what harm or public nuisance has Banksy caused? He has frankly adorned RCJ with better artwork outside than there is inside. Is it really an incitement to protest in contravention of the law or a protest to survive?
Ronald Dworkin, towards the end of his career, wrote an article on the Right to Ridicule peculiarly appropriate to Banksy. There are, for sure, limits, such as Enoch Burke silently or not so silently protesting outside his school. He is not an artist and most decidedly frankly a nuisance, disturbing children being educated. So perhaps certain forms of protest should be consigned to Mountjoy. But there are also demonstrators from Stop Oil, Gaza Extinction Rebellion residing, perhaps excessively, in custody in the U.K.. Now, perhaps a great artist in will be in there next. But that mural was created before 150,000 people turned up in central London.
The great political artist of our time, a private and ostensibly decent man, should not be publicly prosecuted for making legitimate points of criticism, with a drawing that Goya Picasso, Schiele or indeed Hergé would have been proud of. Hergé’s TIN TIN books were about the Manichean divide between good and evil. So who is the demon today, the contemporary Captain Haddock?
Banksy deserves an anonymous knighthood not public humiliation. He should be known by his self-designation and not outed by a magistrate’s court.
Whether he should pay a fine for profiting commercially from the mural is a different question. After all, would he not approve of charges being pressed against the fascist mob that attacked the police? Perhaps any proceeds should go to police wellness programmes?
In the film Cabaret the Isherwood character says: “do you really think you can control them?” Well, Banksy do you? And are you encouraging them or inciting the mob, the robbing room sagely discussed.
It is crucial to realize that the Populist alt-right and indeed at times the extreme left have served to reduce speech and protest rights in an increasingly vigilante age, and now use protest to destroy democracy. So be careful about admonitions of judicial crackdowns even through art. For many are using democracy to destroy the social democratic consensus. And fringe leftist protests such as Just Oil are not much better.
So, the legal arguments about disproportionately cracking down on violent or even peaceful protests certainly are no longer as clear-cut as the mural might suggest.
In the robing room the venerable member concluded that perhaps an arbitral solution might involve a private settlement, i.e. a charitable gift. But none of that settles the regulation of the right to protest, which is now increasingly fragile.
What makes for fine rhetoric in an age of disinformation? Clearly, this is distinct from the techniques employed by corporate motivational speakers, tele-evangelists or self-help gurus. A useful starting point is to examine Aristotle’s views on Rhetoric, who argued that speech can produce persuasion (pistis) either through the character (êthos) of the speaker, the emotional state (pathos) of the listener, or the argument (logos) itself. Artistotle divides rhetoric into three branches. Deliberativespeech that sets out to persuade or dissuade. Judicialspeech that accuses or defends, and Epideictic speech that praises or blames.
He sub-divides this into deliberative speech, where there is advice to do something or a warning. Churchill from the back benches warning about the rise of Hitler is a good example of this form. Furthermore, a judicial speech which is intrinsic to the advocate is what he terms an epideictic speech. These include, among others, funeral and celebratory speeches. Abraham Lincoln’s speech Gettysburg Address a good example of the last.
In his dialogue’s, Plato, Aristotle’s predecessor, was primarily responsible for bringing the founder of all philosophy Socrates to the world. Unlike Aristotle, however, Socrates was deeply sceptical of all sorts of rhetoric. The Socratic method invites scepticism and ultimately may perhaps lead us into an intellectual dead end, in so far as it never answers anything but questions everything. Thus, the dark arts of rhetoric were despised by Socrates, which may have been a contributory factor to his conviction and execution for impiety, not least as a result of the play The Clouds by Aristophanes which satirises him.
The Socratic method, however, largely ends in aporia, meaning a matter being unresolved. Interestingly, discrediting arguments is crucial to an advocate raising doubts before a jury. The Socratic method also utilises elenchus which discards unsustainable arguments one by one. Sherlock Holmes in Arthur Conan Doyle’s The Casebook of Sherlock Holmes (1927) puts it this way: ‘When you have eliminated all which is impossible, then whatever remains, however improbable, must be the truth.’
The Death of Socrates, by Jacques-Louis David (1787).
Stunned and Possessed
Socrates was obviously a very effective persuader in the Aristotelian sense, or as another great orator Alcibiades put it, all who listened were ‘stunned and possessed.’ Nevertheless, he clearly had a point about the dangers of rhetoric. He encapsulated this beautifully at his own trial, which is referenced in Plato’s Apology
How you have felt, O men of Athens, at hearing the speeches of my accusers, I cannot tell; but I know that their persuasive words almost made me forget who I was – such was the effect of them; and yet they have hardly spoken a word of truth. But many as their falsehoods were, there was one of them which quite amazed me; – I mean when they told you to be upon your guard, and not to let yourselves be deceived by the force of my eloquence.
Used for a just cause rhetoric can be highly effective and great force for the good, either in the Aristotelian sense or in Aquinas’. Yet it can also be used for nefarious purposes. That distinction ought to focus the mind on what is good and bad rhetoric, or oratory, and indeed whether it is only good if the motivations behind it are good. Clearly bad rhetoric in the moral sense can be effective. Propaganda is probably best illustrated by Goebbels. This is what he said about the burning of the books before some 40,000 people in Berlin:
No to decadence and moral corruption … The future German man will not just be a man of books, but a man of character. It is to this end that we want to educate you. … And thus, you do well in this midnight hour to commit to the flames the evil spirit of the past.
Notably, in my last piece for Cassandra Voices I recalled the focus of Karl Kraus’ final anti-fascist text Third Walpurgis Night (1933) not on Hitler but on his rhetorician facilitator Goebbels. Or consider the facility with words of another satanic figure Aleister Crowley even in text:
I am gold, I am God, Flesh to thy bone, flower to thy rod.
With hoofs of steel I race on the rocks
Through solstice stubborn to equinox.
And I rave; and I rape, and I rip, and I rend
Everlasting, world without end Hymn to Pan (1913)
Unfortunately, practitioners of witchcraft, magic, or sorcery often seem drawn to the dark arts. In this respect the conventional definition of a warlock (a male witch) is an oath breaker, and no great orator or advocate intentionally misleads. There are other gradations of rhetoric as a dark art. Sorcery is low grade. Magic a higher form. Sorcery is merely results-driven. There is no consultation of principle. It has often been termed a crime against God and humanity. Thus, Goebbels and Crowley are examples of effective but morally bad oratory but given different moral positions in my view, distortion comes first as inappropriate oratory.
Aleister Crowley.
Legal Ambiguity
Judicial or legal speech is ambiguous, and is capable of distortion, as when Cicero the great orator and trial lawyer defended Murena for bribing an electoral outcome against the highly ethical Cato. Cicero knew he got an obviously guilty man off for political reasons.
As Aristotle recognised, however, any speech involves the effect on the listener. Thus, in Leni Riefenstahl’s classic documentary The Triumph of the Will (1936) the spellbinding oratory of Hitler is amply demonstrated, crucially with brilliant cross-cutting to the starry-eyed admiration of those choosing to believe. The film is not unlike watching an American evangelical Christian meeting.
So, who were the great orators? Excluding examples from Classical Antiquity such as Pericles I discuss a few:
Aneurin Bevin
Aneurin Bevin was the architect of the NHS, who became the most loathed and loved man in England. This socialist gadfly with the sharpest of tongues engaged in a long-term sparring match with Winston Churchill. He was also intrinsic to Atlee’s resignation and Churchills appointment. Churchill once called him ‘a squalid nuisance’ not least when he was appointed Minister for Health in 1945. He was biased by a typically inappropriate Bevin question in 1942, at the nadir of the war: ‘The Prime Minister wins debate after debate and loses battle after battle.’
He was also remarkably acerbic in exposing stupidity. About his political opponent Anthony Eden he said: ‘Beneath the sophistication of his appearance and manner he has all the unplumbable stupidities and unawareness of his class and type.’ He described the Tories more generally as ‘worse than vermin.’
Benjamin Disraeli
Then there was the great adversary of Gladstone and architect, along with Metternich of peace in Europe, the Sephardic Jew Benjamin Disraeli, who also a great novelist.
Disraeli loathed the puritanical Gladstone, who was also a great orator. Unsurprisingly, the feeling was mutual. At one point he differentiated between the words misfortune and calamity with reference to his foe: ‘If Gladstone fell in the Thames, that would be a misfortune. But if someone fished him out again, that would be a calamity.’
Moreover, Mark Twain attributed a crucial phrase applicable to our age to the British politician: ‘There are three types of lies — lies, damn lies, and statistics.’
He was also a master of rebuttal, a crucial skill for an advocate. A fellow M.P. once said to him: ‘Sir, you will either die on the gallows or of some unspeakable disease,’ to which he replied: ‘That depends Sir, whether I embrace your policies or your mistress.’
Furthermore, he was acutely conscious of stupidity and pettiness, saying: ‘To be conscious that you are ignorant is a great step to knowledge;’ and ‘Little things affect little minds.’
He also displayed a degree of Socratic self-reflexiveness stating that
One of the hardest things in this world is to admit you are wrong. And nothing is more helpful in resolving a situation than its frank admission.”
Winston Churchill
The historical ledger reveals his role as First Lord of The Admiralty in causing the disaster that was Gallipoli, while the people of Dresden, who took seventy years to rebuild the Fraenkische, have never forgiven the actions of Bomber Harris, which admittedly Churchill was contrite about. Hitler’s great opponent was responsible for a long list of war crimes, not least a certain blindness to the welfare of other races – just ask the Bengalis – but as an Orator in a time of great crisis he was unparalleled.
In his first speech upon uniting Labour and Conservatives against a common foe he said: ‘I would say to the House, as I said to those who have joined this Government I have nothing to offer but blood, toil, tears and sweat.’ And after the near-disaster at Dunkirk he said:
This is the lesson: never give in, never give in, never, never, never, never—in nothing, great or small, large, or petty—never give in except to convictions of honour and good sense.
Also, memorably after Montgomery’s victory at Tobruk, when the tide had turned he said:
Now this is not the end. It is not even the beginning of the end. But it is the end of the beginning.
He was also given to witty if chauvinistic asides, sometimes difficult to disentangle from his evil doppelganger F.E. Smith, particularly with respect to Lady Astor the first female member of parliament. The following statement is said to have occurred with another M.P. Bessie Braddock. ‘Sir’ she said, ‘you are drunk,’ to which he replied: ‘And you, Bessie, are ugly. But I shall be sober in the morning, and you will still be ugly.’
Clarence Darrow
Clarence Darrow was the greatest trial lawyer that ever lived in my view, but also an inspiration behind progressivism, a desire derived from a group of like-minded people, including Oliver Wendelll Homes to improve society. His career is littered with triumphs, including the greatest plea in mitigation ever in Leopold and Lowe and his staunch defence of anti-racism in the Scottsdale case. Often considered merely a sophisticated country bumkin lawyer, he was in fact an incredible orator.
This is what he had to say about criminal defence lawyers:
To be an effective criminal defense counsel, an attorney must be prepared to be demanding, outrageous, irreverent, blasphemous, a rogue, a renegade, and a hated, isolated, and lonely person – few love a spokesperson for the despised and the damned.
And in The Scopes Trial we find the greatest cross-examination ever of his opponent the prosecutor William Jennings Bryan, three-time presidential candidate and religious fundamentalist:
Bryan: A witness had testified on Bishop Ussher’s theory that the Earth was formed in 4004 B.C.
Darrow: That estimate is printed in the Bible?
Bryan: Everybody knows, at least, I think most of the people know, that was the estimate given.
Darrow: But what do you think that the Bible itself says? Don’t you know how it had arrived?
Bryan: I never made a calculation.
Darrow: A calculation from what?
Bryan: I could not say.
Darrow: From the generations of man?
Bryan: I would not want to say that.
Darrow: What do you think?
Bryan: I do not think about things about which I do not think.
Darrow: Do you think about things about which you do think?
Above all there is the famous peroration in that case
If today you can take a thing like evolution and make it a crime to teach it in the public school, tomorrow you can make it a crime to teach it in the private schools, and the next year you can make it a crime to teach it to the hustings or in the church. At the next session you may ban books and the newspapers. Soon you may set Catholic against Protestant and Protestant against Protestant and try to foist your own religion upon the minds of men. If you can do one you can do the other. Ignorance and fanaticism are ever busy and needs feeding.
Darrow’s agnosticism, incidentally, may be attributed to a sense of doubt intrinsic to trial lawyers. Indeed, he wrote extensively about Voltaire, who was also a man of doubt, reason and with a sensitivity to miscarriages of justice.
Martin Luther King
First there was his description of wisdom: ‘In the end, we will remember not the words of our enemies, but the silence of our friends.’ And on the subject of tolerance he said: ‘There is some good in the worst of us and some evil in the best of us. When we discover this, we are less prone to hate our enemies.’ Also a common theme evident in all the great orators, was his hatred of ignorance: ‘Nothing in the world is more dangerous than sincere ignorance and conscientious stupidity.’ But let me sign off this article with perhaps the greatest public rhetorical statement ever, which remains apposite to our age:
I have a dream that my four little children will one day live in a nation where they will not be judged by the colour of their skin but by the content of their character.
Feature Image: A fresco by Cesare Maccari (1840-1919) depicting Roman senator Cicero (106-43 BCE) denouncing Catiline’s conspiracy to overthrow the Republic in the Roman senate. (Palazzo Madama, Rome).
In his last great novel The Plot Against America (2004) Philp Roth posited plausible circumstances where President Franklin D. Roosevelt, the great social democrat, could be dislodged by the proto-fascist Charles Lindbergh.
Sadly, a failure to understand history bedevils our time. We have sleepwalked into a similar scenario after the last U.S. Presidential election. Now I fear it is too late. A fascist leader appears to have been re-elected President.
In 1935, as much of Europe was succumbing to fascism, Upton Sinclair penned his dystopian novelIt Can’t Happen Here in which Senator Berzelius “Buzz” Windrip enters the presidential election campaign on a populist platform. He promises to restore the country to prosperity and greatness, offering each citizen $5,000 per year. Portraying himself as a champion of ‘the forgotten man’ and ‘traditional’ American values, Windrip defeats incumbent President Franklin D. Roosevelt for the Democratic nomination, and then goes on to beat his Republican opponent.
It can happen here and now. Trump is emblematic of how, worldwide, a new form of corporate fascism, or corporate communism, has become dominant. So let us examine the initial pronouncements.
Inauguration Day
What did his flurry of executive orders mean, apart from braggadocio and sabre rattling? This is quite apart from the caveat that executive decrees short-circuiting the legislative process are the hallmarks of fascism, as Carl Schmidt the legendary jurist argued. American democracy appears to be in tatters.
In an inaugural address that was remarkably coherent and lucid in conceptual terms, Trump invoked President McKinley (1897-1901). The implications are clear. McKinley colonised Hawaii, Puerto Rico, Guam, the Philippines and Cuba, and was also hostile to global cooperation.
So, resignations from the admittedly corrupt WHO and the revocation of the Paris Climate Change Agreement are the first two steps. Now, all directly or indirectly funded citadels of world governance are under siege if they oppose or sanction American interests.
Danish author Peter Høeg penned a famous bestselling book Miss Smilla’s Feeling for Snow (1982) about Greenland and more precisely the Danish government’s treatment of the indigenous Inuit community The engine of the plot is the concealment of a state secret: a lethal meteorite and a parasitic worm that serves as an existential threat. The ruling Danes are not portrayed sympathetically with respect to Greenlanders. Indeed, according to a recent poll Greenlanders aspire for autonomy, but not another external coloniser.
Yet Donal Trump wants Greenland and seems prepared to invade. Thus, he sent his son to a resort in the island’s most populous town Neuk armed with the slogans about making Greenland great. The thought did occur that Inviting homeless people into a 4-star hotel, albeit accidentally, is a policy he could replicate in his domestic policies, though I doubt he will. The whole staged visit was of course bellicose posturing, and the shape of things to come.
Why then the sudden interest? Well, it’s not so sudden frankly, but it’s most revealing. The interest stems from what is apparent in the Trump regime’s agenda: a zero-sum game of competition between nation states, leading to a global competition for diminishing resources. Texan and indeed Arabian oil supply may run dry and is certainly being exhausted at current consumption rates.
Greenland is terra nullius or virgin territory, unspoiled in one crucial respect. It is among the last outposts where the riches of the earth can be extracted – to enrich the few and destroy the planet. More to the point, it will soon be exploitable given that climate change is overwhelmingly likely to cause the glaciers to melt.
Black Gold
Oil! (1927) is the title of Upton Sinclair’s epic novel about American greed, which was adapted into the film There Will Be Blood (2007). Today, American capitalist colonialism wants not just Greenland, but the Northern Territories of Canada. Drill Baby Drill.
The Northern Territories of Canada are also an Arctic landmass of untapped resources. In his speech, he specifically mentioned tariffs – incidentally also a Mckinley policy – and tariffs were only just averted from coming into force against Canada and Mexico. China was also hit with retaliatory measures. Yet, it is the plain people of America who voted for him who will pay the bill, only after he has fired half the federal government.
Thus, invocation of McKinley in his speech is also the invocation of a solid hard currency President that is for the few, not the many.
The concept in international law of domestic jurisdiction is to respect national sovereignty, and only where there have been systematic human rights abuses to interfere in the domain reserve of a state. The justification of a breach of an obligation ergo omnes or a Crime Against Humanity is, ideally, filtered and ratified by the U.N.. This has often occurred in a bogus fashion, such as the dodgy dossier that led to the Bush-Blair war on Iraq. Trump also wants oil, but is going about it in a different way.
So, he will not accept any international sanction or control, and will move with autocratic impunity. Play ball or we will invade, or refuse to recognise the UN, or perhaps force it to decamp from New York. Should the General Assembly object to any of this it may simply be liquidated. The statement above might seem alarmist but there are few checks and balances left.
That seems to me to be what is happening is with the division of the world into trading blocs or sectors. Trump does not want to spend hard dollars on wasteful wars in the Ukraine or Gaza but that is not to say he gives a rat’s arse about human rights. Instead, he aims to establish a profit-driven North American confederation, to include Canada and Greenland, and, of course, reclaim the revenue of American businesses.
Hi ally, or puppet master, Elon Musk, also has limited respect for national sovereignty, but a different mechanism of attack. He destabilizes through funding political actors such as the ADF in Germany and agitates online against the Starmer administration.
America wants pliant co-operative regimes, with Musk acting as a modern-day Kissinger-without-portfolio. Trump has no doubt suspended the ban on Tik Tok to allow his bestie to buy it up and pollute the minds of an entire generation. This is Freedom of Expression if we will tell you what to say.
ICE and Department of Homeland Security agents detaining a man.
Ethnic Cleansing
We will also see de facto ethnic cleansing, as in his proposal that two million Gazans should vacate their land to make way for a new Riviera. Also, the removal of undesirable aliens, even those for whom America is a birthright, and the development of a Mexican Iron Curtain.
The new form of cleansing is akin to the McCarthyite Red Scare, given the removal of employment rights of those who are opposed to his interests and thus by definition seditious. Most of this action will be upheld by a compliant and docile judiciary. In short federal employees with even a trace of Red will be summarily dismissed.
And what of Ireland? The extension of American trade will surely lead to the decamping of multinational corporations. American hedge funds already enjoy a dominant interest in our domestic housing market. Nevertheless, I predict tariffs will be employed against Ireland and Europe if regimes are less than favourable towards the United States.
Further, the entire liberal WOKE agenda, which in my view has been deeply troublesome and counterproductive, is being dismantled. ‘His Christians’, as he calls them, form the Bible Belt will see a return to very traditional female and male roles. This is of course after his Supreme Court overturned Roe v. Wade. His Defense Secretary Pete Hegseth also has very extreme views on homosexuality, so watch this space.
There were also pardons for far-right protestors after he lost the last election, and a promised investment in more lethal injections and an escalation of the death penalty. The previous few years have seen the US Supreme Court block off appeals for ineffective assistance of Counsel. One senses that his emergency powers remit of executive action will not be confined to the Mexican border, but the legislative remit will be much wider and internal, and will be upheld by SCOTUS.
It is apparent that the worldwide human rights post-Second World War consensus is over save for a few enclaves. State authoritarianism – with his acolytes in Argentina and Italy present at the inauguration – will now increase at a rapid pace.
More fundamentally, if American democracy doesn’t survive this then all democracies are threatened. We all contract pneumonia, politically speaking, when they catch a cold.
Karl Kraus
The legendary Austrian journalist Karl Kraus died in 1936 after editing Die Fackelfor thirty-seven years, shortly after Hitlers ascension to power in Germany. At the height of collapse, and after a self-enforced interregnum of nine months he published one last edition that included the extended essay ‘The Third Walpurgis Night’.
The essential argument is that with their devotion to palaver and tactics, the Social Democrats facilitated Hitlers rise. He despaired at their belief that ‘they could break [the] magic circle [of Nazism] by means of the Constitutional Court.’ Consequently, the essay supports the Austrian Christian-Democratic Chancellor Dollfuss as anything other than Hitler was needed. Well, the lunacy of liberal political correctness and their failure to focus on real issues facilitated misguided Populism.
The opening paragraph of the extended essay is devastating in its implications for today:
As to Hitler, I have nothing to say. I am aware that as the upshot of extended reflection, of repeated efforts to grasp the phenomenon and the forces driving it, this falls far short of expectations. They were, after all, pitched higher than ever before at a polemicist who is popularly—but mistakenly—expected to take a stand; and who, when confronted by any evil that appeals to his temperament, has indeed been prepared to “stick his neck out”. But there are evils which not only make the neck cease to be a metaphor…
The best reading of Walpurgis Nacht, as Patrick Healy has suggested, is that satire should point not only in the direction of rhetorical agility – use of mockery, insult, indignation etc. – but also to its fusion with the voice of the moralist, employing the skill of a standup comic. The word has also a meaning of stew bringing all ingredients together. However, just as with Hitler, so with Trump, we are now beyond satire. At one level we must remain silent, or use words sparingly.
Kraus, in his masterly analysis of Goebbels (a precursor to Musk), accepts that so deeply clever and embedded is the propaganda – and the appearance of culture and progress – that we forget that they intend to do what they are going to do.
The reaction to the camp fascist Nazi salute by Musk is a clear indication that seriously cultivated people should not take these barbarians seriously, but they ought to be taken seriously, as globally, in a state of collective hysteria, people are voting for them into office. So, is it that we, the civilised, are no longer to be taken seriously?
Watching this shit show unfold is like being the Isherwood figure in the film Cabaret at the German been garden as he hears a version of the Horst Wessel being sung.
Trump, unlike nativistic Greenlanders, wants ownership of land and people’s minds, but in a very unstable situation there is an alternative. Remember what happened to President Mckinley.
In an age of unrestrained Russian-bashing, the figure of Fyodor Dostoevsky might seem a provocative choice for this Public Intellectual series. He remains, however, in my view, the greatest writer of prose fiction who has ever lived. His greatest novels The Devils/Demons (1872) and The Brothers Karamazov (1880) are, frankly, unsurpassed in world literature.
As I see it, other great Russian novels of his time, Fathers and Sons (1862) by Ivan Turgenev and Anna Karenina (1878) by Leo Tolstoy are just a notch below; perhaps reaching the heights of Crime and Punishment (1866) or The Idiot (1869), the two lesser of his four great novels.
This is to assume that his other works are of lesser value. Yet in the novella Notes from an Underground (1864) as well as White Knights (1848) Dostoevsky surpasses The Death of Ivan Illich (1886) by Tolstoy.
The anti-hero of Notes from an Underground anticipates a form of government where:
All human actions will then of course be calculated, mathematically, like logarithm tables up to 108,000, and recorded in a calendar; or even better, well-intentioned publications will then appear … in which everything will be so precisely calculated and recorded that there will no longer be deliberate acts or adventures in the world.
This he suggests would create a reaction, in the form of a dictator:
I, for example, wouldn’t be at all surprised if, in the midst of all this reasonableness that is to come, suddenly and quite unaccountably some gentleman with an ignoble, or rather a reactionary and mocking physiognomy were to appear and, arms akimbo, say to us all: ‘Now, gentlemen, what about giving all this reasonableness a good kick with the sole purpose of sending all those logarithms to hell for a while so we can live for a while in accordance with our own stupid will!
In fact, across Russian literature only Nikolai Gogol and Anton Chekhov wrote better short story writers. Besides being a master of the short story form, Chekhov was primarily a playwright. Unprecedented in world letters, he is almost the equal of Dostoevsky, but not quite!
In Russian letters thereafter only the great novels of Mikhail Bulgakov, The Master and the Margarita (1967) and The White Guard (1925) the latter of which perfectly encapsulates – unlike our official media – the reasons for Putin’s ‘special military operation’ in Ukraine. Many Russians (and indeed some Ukrainians) view what was the breadbasket of the Russian empire as integral to and inseparable from Russia itself.
Portrait by Vasily Perov, c. 1872
Tolstoy or Dostoevsky?
In a famous monograph (1959), Tolstoy or Dostoevsky?, George Steiner argued that the two authors represent polar opposites in the Western canon, the former epic, utopian, and aspiring to achieve heaven on earth – with all its attendant dangers. The latter, for all his peasant Christianity and hatred of nihilism, asserting the pre-eminence of free will, while portraying a world beset by evil, intrigue and deceit.
The great Russian effete of a later era Vladimir Nabokov, lecturing in exile in Columbia University claimed he despised Dostoevsky’s vulgarity and excess. Of course, unlike Nabokov, Tolstoy or Turgenev – the latter of whom Dostoevsky had a fractious relationship – Dostoevsky was not an aristocrat. He was not a blue blood. His father was a ‘mere’ country doctor, murdered after a descent into dissolution and an echo, Freud argues in Dostoevsky and Parricide (1928), of the central theme of The Brothers Karamazov. Moreover, Dostoevsky was profoundly anti-Catholic
It should also be said that Dostoevsky was an editor, journalist, and social critic, which could be a dangerous role to play in Czarist Russia. He was really a philosopher in that all his great books are novels of ideas, and display in all its fullness the eschatological imagination. An intellectual of the highest rank, and superb jurist and penologist, not just in terms of the immense amount of attention devoted to questions of justice and the criminal process in his work – not least the trial of Dmitri Karamazov – but also heavily influenced by his penal servitude in Siberia.
Also, uncomfortably for this writer at least, he was a deeply religious man, and there was no hypocrisy evident in this outlook. He acquired a deep religious faith from his mother during his childhood, quite contrary to the secular temper of his age. While I distrust this, I understand in Freudian terms its aetiology.
He was, however, deeply anti-Catholic. At one point his apparetnly omniscient Idiot, Prince Myshkin exclaims:
In my opinion Roman Catholicism isn’t even a religion, but most decidedly a continuation of the Holy Roman Empire, and everything in it is subordinate to that idea, beginning with faith. The Pope seized the earth, an earthly throne and took up the sword; and since then everything has gone on in the same way, except they’ve added lies, fraud, deceit, fanaticism, superstition, wickedness. They have trifled with the most sacred, truthful, innocent, ardent feelings of the people, have bartered it all for money, for base temporal power. And isn’t that the teachings of the Antichrist?’
Dostoevsky, 1847.
Early Period
In his school years, splendidly documented by his great biographer Joseph Frank he intervened to protect children against thugs. On his way to the prestigious engineering school, where he was accepted in 1831, he was horrified by an act of savage brutality against a peasant he witnessed at a coach station. Later, through his hugely influential periodical Diary Of A Writer – not unlike Charles Dickens’ Household Words or All The Year Round towards the end of his life – he declaimed against a brutal flogging of a serf by an aristocrat, who was put on trial and justly punished. There is no doubt that from the get-go his sympathies were with the little man. Thus, like Charles Dickens he was the chronicler of his time in Time.
Thus, for his entire life no matter how famous he became he was always an advocate for the poor, students if they had legitimate grievances, those falsely accused, unless, unforgivably, they were Jewish. Poor Folks (1845) is of course his first novel and is a huge success and a minor masterpiece. It is, however, an elaboration of that greater Russian work Dead Souls (1842) by Gogol whose awful theme is the purchasing of dead peasants’ souls for profit. The ultimate extension of the landlord class. This is again prescient for our times.
Poor Folks was acclaimed as the first exercise in social realism, and the plight of self-abnegation before corporate feudalism. Here we find words relevant to our neoliberal age: ‘Judge whether one was right to abuse oneself for no reason and be reduced to undignified mortification.’ Today’s serfs are subject to social media targeting in an age of surveillance and consumer capitalism. Our very identities are mined for data.
Poor Folks was followed by The Double (1846), which though not among his great novels expresses the split personality – a dominant theme in his oeuvre to come – as later do Oscar Wilde in A Picture of Dorian Grey (1891), Robert Louis Stephenson in Jekyll and Hyde (1886), and more recently Naomi Kleins’ Doppleganger A Trip into the Mirror World.
Vissarion Belinsky
Belinsky
During this early period Dostoevsky came under the influence of the intellectual Vissarion Grigoryevich Belinsky who was torn between the veneration of the poor – a form of Christian humanism – and an overarching commitment to materialism. The book expresses that conflict.
The success of Poor Folk led him to being welcomed into intellectual circles. An unfortunate association with the Petrashevsky Circle, however, led to him being exiled to Siberia and then conscripted into the army. Moreover, he strongly believed he was about to be executed as the Tsar staged a mock execution of him and his co-conspirators in Samonkey Square. Interestingly, one of those involved in his persecution was Ivan Nabokov, a distant relative of Vladimir Nabokov.
This terrifying event it is said to have turned his head grey. It scarred him for life and was fictionally recreated in The Idiot (1869). We may assume that the description of the plight of a person sentenced to death by the state in The Idiot is biographical, considering his own experience of narrowly avoiding the Czarist firing squad. By comparison with the fate of a person assailed and killed by brigands he says: ‘the whole terrible agony lies in the fact that you will most certainly not escape, and there is no greater agony than that’. He asks: ‘Who says that human nature is capable of bearing this without madness?’
That and Siberia, where he underwent extreme hardship led to the fascination that engendered Crime and Punishment. In Siberia, as diarised by his biographer, he became less interested and mistrustful of the application of the letter, as opposed to the spirit of the law. Dostoevsky was never a literalist in legal interpretation terms, and was acutely conscious of the law’s failings. He was treated barbarically and barely survived. The law and its failings went on to dominate much of the rest of his fiction.
He returned a felon but quickly contributed to Time magazine, along with several other journals thereafter as editor and contributor, and to his next defining book The House of The Dead (1854), which offers a far better examination of the gulags than Solzhenitsyn.
Hans Hobern’s The Body of the Dead Christ in the Tomb.
Nihilism
This period of incarceration led to the development of a complex dialectic through his life. His hatred of nihilism – a phrase actually coined by Turgenev for the character Bazharov in his masterpiece Fathers and Sons (1862), alongside his warm embrace of Young Russia, a movement recalling Thomas Davis in Ireland and Disraeli in Britain. It was a progressive movement for reform in Russia, not least in seeking to ameliorate the conditions of the serfs.
Dostoevsky despised the nihilistic attitude, expressed ironically in Turgenev’s masterpiece: ‘That is not our business let us have a grand clearance first.’
The Russia of his lifetime, from Nicolas I onwards, was a time of great political turbulence and the development of revolutionary cabals often to reform the plight of the serfs. There was also a dialectic perfectly conveyed between Turgenev and Dostoevsky of a need for Russia to become more European. Turgenev, the aristocratic exile, argued for to become more autarchic. Dostoevsky sided with the poor folk and Mother Russia but not in a shrill way. The idea he coined, evident as early as 1861, was Pan Humanism, within a Russia influenced, but not dominated, by Westernisation.
The success led to a degree of European decadence, and for the rest of his life he was often abroad and in debt, though finally happily married after a string of unhappy relationships to Anna, his stenographer who he adored and was most attentive to.
What became a gambling addiction developed during his peripatetic European travels, and put enormous stress on his wife. Yet, in a moment of epiphany, after essentially losing the family silver, he finally gave it all up. His great novella The Gambler (1866) offers a frenzied portrayal of an illness, which destroys lives – as I have witnessed during my professional career. It also provides a lacerating attack on enduring national cultures. Here, Russians are portrayed as gambling riskily and haphazardly, Germans methodically and in a philistine way, while the French display an elegant decadence. How times have changed.
Prior to The Gambler there arrived the seminal existential text, unique in his oeuvre, Notes from Underground (1865), which predates Sartre and Camus by an epoch but is no doubt influenced by Kierkegaard.
The self-reflexiveness of the narrator in that he is both accused and accuser, torn between rational egoism and a concern for others. This is the Dostoevsky dilemma, and a prelude to the themes of the great novels to follow.
So on to Crime and Punishment (1868), written for the establishment Russian magazine Messenger, and a final step towards financial stability. It is his most famous and widely read work. To say it is not his best work would be true, but misleading in that within it scope it remains one of the great works of European literature.
The novel is the prototypical detective novel. Without this there is no Wilkie Collins or Raymond Chandler. The anti-hero Raskolnikov is torn between a nihilism inspiring an Übermensch sense of superiority, and a Christian piety. Here Dostoevsky anticipates the serial killers and corporate monsters of our age.
The prosecutor Petrovich is the voice of atonement and represents Dostoevsky’s sense of guilt before God. The book is also a condemnation of extremism and lawlessness.
When the prosecutor first hauls Raskolnikov into custody he expresses curiosity about an article that Raskolnikov wrote called ‘On Crime’, in which he suggests that certain rare individuals – the benefactors and geniuses of mankind – enjoy a right to ‘step across’ legal or moral boundaries if those boundaries act as an obstruction to the success of their idea. The prosecutor, in a much kinder way than the approach offered by Camus in The Outsider (1942) – who was hugely influenced by Dostoevsky not least in his play of The Possessed/Devils (1959) – finally forces him to confess.
The Idiot (1871) is the book that pleased Dostoevsky the most – and is arguably his most disciplined novel – and there is much of him in it. The central character of Prince Myshkin was much influenced by Dostoevsky seeing Hans Holbein’s Dead Christ (1529) painting. No doubt it expresses his deep faith in the decent and Christian man.
Yet Myshkin’s other-worldliness is the cause of his self-destruction, along with death and chaos wrought on others. The crucible of Russia at that time augments dark Dostoevsky’s mysticism. It is deeply personal and invokes his mock execution and epilepsy. It is a work that is curiously relevant to our time of vaccines, compliance and control, where 90% of humanity are to be treated as cattle, a process which can be achieved through re-education and vogueish Social Darwinism.
This brings us to the great citadel of world literature and in my view the greatest novel ever written The Devils (1868). At the time Dostoevsky was much influenced by the malign neglect of the civilised anarchist Herzen and his criticism that nihilists wished to abandon books, science and instead embrace destruction. Herzen in a famous polemic, echoing Dostoevsky’s own ideas I suspect, argued that Shakespeare and Raphaël were higher in the pantheon than socialism, nationalism or the emancipation of the serfs. The immediate sensation which precipitated the novels was the activities of the real life murderous Nechaev, a model for many of The Devils.
Towards the end of The Devils, one of the conspirators Lyamshin is put on trial and asked ‘Why so many murders, scandals and outrages committed?’ He responds that it was to promote:
the systematic undermining of every foundation, the systematic destruction of society and all its principles; to demoralize everyone and make hodge-podge of everything, and then, when society was on the point of collapse – sick, depressed, cynical and sceptical, but still with a perpetual desire for some kind of guiding principle and for self-preservation – suddenly to gain control of it.
The novel is the greatest condemnation of extremism in the history of ideas, containing his essential credo that once you have rejected Christ it is possible to go to inordinate lengths of evil. The book provides almost a replica of the current political climate where anarchy and extremism prevail, and in the midst of it all is the crucial figure of native Dostoevsky ambivalence, Stavrogin – a man who is torn between good and bad impulses, but the nihilism and decadence prevail.
The essential argument is that materialism, nihilism and decadence will stop at nothing and boundary after boundary will be crossed in the descent towards the personal and societal abyss.
Dostoevsky response, or antidote, is to assert that humanity must take collective responsibility in a Christian way. Thus, when Stavrogin reveals his appalling crime to the elder Tikhon, the latter responds by asking the forgiveness of Stavrogin: ‘Having sinned, each man has sinned against all men, and each man is responsible in some way for the sins of others. There is no isolated sin. I’m a great sinner, perhaps greater than you.’
After its publication, and his resumption of journalistic activities with The Diary of a Writer (1873-1881) he was widely acknowledged as the greatest living writer in Russia. He finally settled in his homeland, holding court both in letter and visitations to an increasingly enamoured public. In essence, he became the moral conscience of Russia.
Though the Diary of a Writer – finally published in totality by Scribner’s – contains some of his greatest short stories. He also rages against injustice and took a keen interest in the criminal process.
Dostoyevsky’s notes for Chapter 5 of The Brothers Karamazov.
The Brothers Karamazov
Thereafter he began his final novel The Brothers Karamazov. His sensitivity to injustice, it must be said, is afflicted with one blind spot, lest this piece be represented as hagiographical! He showed a lifelong hatred of Jews, who he and Turgenev too often caricatured, in the most vicious of terms. When a Jew was correctly acquitted, he bemoaned the verdict. In this sense he a creature of his time, but also trespassed a moral boundary.
His antisemitism was a product of at times, a Little Russian mentality and his sense of the volk, so there is a negative and abhorrent mysticism here of old tensions, resurfacing in our age. Also, his embrace of what might be described as Populism at this stage has dangerous relevance to our time.
Many of his great books were written like cliffhangers under enormous stress explaining the fervid prose, and as every book of his final novel – three years in genesis – came out the public reacted in a way not unlike the London public’s reaction to the death of Little Nell. His work, along with his literary peers, forged Russian consciousness, for better or worse.
This culminated in a famous face off where all the intelligentsia of Russia attended an event to celebrate Pushkin’s anniversary. A feud had been brewing for decades between two opposite visions of Mother Russia, one represented by Turgenev with his condescending attitude towards the poor folk and his internationalism; the other by Dostoevsky who represented the Christian Tsarist nationalist strain.
Dostoevsky’s great speech at the banquet is well worth reading. It effectively destroys the reputation of Turgenev and had the impact at the time of Martin Luther King’s ‘I have a dream.’ It ends in a beautiful expression of compromise and Pan Humanism, envisioning a Christian Russia sympathetic to the poor, but receptive to other cultures, urging respect for tradition but acknowledging a need for reform and tolerance.
It arrived while he was writing The Brothers Karamazov, by which time the debts, the epilepsy, the chaotic lifestyle and huge fame had taken their toll, He was writing around the clock to complete it, with old father time breathing down his neck.
This book is a foundation stone of literate moderate civilisation, containing everything of the selfless Christianity and love he espoused, embodied in the character of Aloysha, who is a more modulated version of Myshkin from The Idiot. It contains some of the greatest passages in literature, including The Grand Inquisitor dialogue, and culminates in over one hundred pages of the trial of Dmitry Karamazov for parricide.
It should be said that like Dickens, Dostoevsky distrusted lawyers, not least their tendency to allow their eloquence to overflow at the expense of the truth, and their blindness to the moral consequences of their action. The representation of the defence speech in Karamazov is deliberately weak. Even though, as the book makes clear, Dmitry is morally guilty for his monster father’s death, he is not legally guilty. Yet the defence lawyers seem to rely on the mercy plea, and on a confused argument suggesting implicitly some people deserve to be killed. Not exactly a full throttle defence, but one recently evident in Ireland.
Dostoyevsky identifies a broad moral continuum between a capacity for the highest and basest thoughts and deeds. If any character represents the views of Dostoyevsky himself it is perhaps the chief prosecutor Ippolit Krillovitch, who, uncannily, like the author, dies within a few months of the novel’s central events: the apparent patricide, and aftermath, of the wily and debauched Fyodor Pavlovich Karamazov. His sons represent different faces of a timeless character, and in the ensuing trial Krillovitch draws attention to the inadequacies of each. So searing are the insights that Dimitri is prompted to thank his own prosecutor, admitting that he: ‘told me a lot about myself that I didn’t know’.
Krillovitch describes those of the Karmazov ilk as having: ‘natures with such a broad sweep… capable of encompassing all manner of opposites, of contemplating both extremes at one and the same time – that which is above us, the extremity of the loftiest ideals, and that which is below us, the extremity of the most iniquitous degradation.’ He adds: ‘others have their Hamlets; so far, we Russians have only our Karamazovs.’ That Karamazov archetype surely extends beyond Russia.
The reception to The Brothers Karamazov was ecstatic, and his finances looked permanently healthy, but accounts of the time show how frail he had become. The multiple social engagement at this stage were not helpful and a stroke occurred after some final pieces in Diary of a Writer, many published after his death.
All of Russia mourned the death of a man who had been sent to Siberia. They had lost their great writer and intellect.
Dostoevsky’s funeral,
Legacy
For our present age there is much to ponder over Dostoyevksy’s legacy. First is the need for the assertion of Christian, or humanist values. This includes the establishment of community, even if, as I would argue, this remains secular in its guidance. Moreover, we must protect the poor, the falsely accused and the defenceless. Moral nihilism in all its guises must also be opposed. And the devastating effect of extremism should be portrayed.
We should also be alive to the excesses of Dostoevsky in a tendency towards Populism, veneration of an abstract volk and the denunciation of minorities, including Jews.
Overall, he stands as the greatest intellect literature has produced, a mystic and theoretician, as well as a practical journalist. Moreover, the novels contain far more insightful philosophy than most arid books of philosophy,
Along with Leonardo da Vinci, and even more so than Shakespeare, I would go so far as to say that he is the greatest genius that has ever drawn breath. I suspect he would have been distrustful of da Vinci’s cosmopolitanism and veneration of science. Sparks will surely fly if they ever meet!
In search of the my favourite troubadour all roads lead to Flanders, Belgium, then on to France and French Polynesia. There, in the obscure cemetery of Atuona Hiva Oa – alongside the impressionist Paul Gaugin – rests the mortal remains of Jacques Brel.
Aged just forty-seven, Brel had been under a settled expectation of death for some time, as a legendary smoker, and been commuting back and forth to the French mainland to finalise his last album.
Belgiums regularly hail Brel as their greatest fellow citizen in opinion polls. For good reason.
I greatly admire the French chanteuse tradition from Maurice Chevalier to Edith Piaf, and on to Juliette Greco. There’s Serge Gainsbourg too, and the recently deceased Charles Aznavour. Yet I regard Jacque Brel as the culmination of that tradition.
It is the sheer volume of great songs that is most remarkable about Brel, and, unlike Gainsbourg, they translate easily, although they are often traduced.
Thus, Les Moribund (1961) is about the ruminations of a dying man: ‘I want them to dance when it’s time to put me in the hole.’ In the Terry Jack version, however, which sold five million copies this becomes: ‘Goodbye my friend it is time to die when all the birds singing in the sky…. We will have joy, we will have fun, we will have seasons in the sun.’ Westlife even covered it. Yet it is a Brel song translated word-for-word with an identical riff. One can only assume copyright was secured.
David Bowie was a huge fan of Brel, and most notably covered the iconic song Amsterdam (1964), as did Scott Walker who penned an album in English called Walker Sings Brel (1981). Brel was above all a performer. Thus, with sweat dripping and emotional grotesquerie to the fore, nothing in performance art history is quite like his live version of Amsterdam at the Olympia Amsterdam 1964. Ms Abramovich eats your heart out.
Brel did live long enough, through terrible illness, to see worldwide acclaim. Many of his songs were respectfully produced through his involvement in one of the great Broadway musicals. Jacques Brel is alive and well and living in Paris (1968). It is a brilliant and haunting introduction to his songs, and an essential purchase for any music lover.
Brel came from Flanders and chronicles the travails of the Flemish bourgeoisie, often with a full frontal attack, as in Les Flamandes (1958) – equivalent in its power to W. B. Yeats’ great poem September 1913, but also filled with charity, tolerance, and humanism.
The apogee of his love/hate relationship with his homeland is the track Fils deor Sons of (1967), beautifully sung in the Broadway musical by Elly Stone. It is a kind of paean to all God’s children. I consider it one of the greatest songs about human aspiration and failure, jaw-dropping in its simplicity and clarity.
Brel migrated to Paris at the age of twenty-four to work in a cardboard box factory, but was quickly lionised for his musical gifts. There was no fall from grace, as he became the totemic figure in French performance culture, and a national icon both in Belgium and France.
Amsterdam is his most famous, although not in my view, his best song. It’s certainly one of the most disturbing renditions of human debauchery and self-destruction ever written, set in that city of contradictions, lovely and decadent in equal measure. Home to Rembrandt’s Night Watch and The Van Gogh Museum, as well as to the drugs trade and prostitution.
Preferably it should be listened to in tandem with a reading Albert Camus‘ novel The Fall (1956), in which the apostate lawyer confesses his sins to all and sundry in a seedy Amsterdam bar. The lyrics are incandescent. Particularly in French and the song builds to a crescendo.
Finally they drink to the ladies
Who give them their nice bodies
Who give them their virtue
For a golden piece
And when they have well drunk
And pin their nose to the sky
Blowing their nose in the stars
And they piss like I cry
On the unfaithful women
In Amsterdam’s port
In Amsterdam’s port
Many of his songs build in a similar fashion fashion. Tempo is crucial, particularly in my personal favouriteLa valse à mille temps (1959). Here, Brel is ruminating on a park bench about life and love’s failings beside a giant Ferris wheel. Imagine The London Eye or The Riesenrad in Vienna. As the song unfolds it mimics the rotation of the Ferris wheel and gathers pace. Incredible, or incroyable. I defy anyone to listen to it and not consider it as beautifully a conceived a song as has ever been written! It is as great as one of Shakespeare’s Sonnets or Love Minus Zero (1964) by Bob Dylan or Dance Me to The End of Love (1984) by Leonard Cohen. Greater in in fact.
Brel like all troubadours, was a great romantic chronicler and penned an enormous amount of great love songs. Ne Me Quite Pas (1959) is one great hush. Although some of its power is lost in translation, that never stopped Frank Sinatra, Dusty Springfield, Barbra Streisand, Neil Diamond to name but a few recording it in English as If You Go Away.
The English title is in fact deceptive, and conditional on some future whim from the object of desire, whereas ‘do not leave me’ is very much an expression of fear of imminent desertion.
Yet, in my view his greatest song of unrequited love is Madeleine (1962). The Godotesque conceit is incredible, as the protagonist awaits Madeleine, who never arrives, outside a cinema. I believe it influenced Kaurismaki 2023 film Fallen Leaves, and is beautifully sung by Ellie Stone and Mort Shuman in the Broadway production.
Brel’s relationship with Flanders was complicated throughout his career. On the one hand he sang lovingly of his flat country homeland, particularly in the extraordinary love ballad Marieke (1961) about a woman and indeed Flanders, but he also poured scorn on what he perceived to be the parochial nature of the Flemish, much like Flaubert’s dictionary of received ideas (1911) pouring scorn on the French bourgeoisie.
So, consider this interview in which Brel said: ‘We have been conquered by everyone, we speak neither pure French nor Dutch, we are nothing’
Les Flamandes, (1958) is a visceral masterpiece, a ribald and derisive music hall number about dancing Flemish women. Brel was unrepentant about its offensiveness , and on his final 1977 album – when at death’s door – he upped the ante with an even ruder song, Les F…, which accuses the Flemish of being ‘Nazis during the war, and Catholics in between.’
It should be said that some of Scott Walker’s versions, Jackie (Jacky) (1959) and My Death (La Mort) (1965) are richer texturally and in many ways more enjoyable than the Brel versions, but when Walker has to reach for dark humour his Next/Au Savant (1963) does not reach near the mordant and sardonic Brel heights of the version. A song about sexual abuse is also covered by Gavin Friday.
Brel was also an expert in pathos and compassion. Consider the wonderful La Chanson Des Vieux Amants. ‘Of course we’ve had thunderstorms,’ goes the first line. ‘Of course, you took a few lovers,’ And candidly in the second verse, ‘time had to be spent well.’ One is reminded of the great French chanteuse Maurice Chevalier and his old muse in Gigi (1958).
We dined at nine.
Not it was eight.
You were on time.
No, you were late.
Oh yes, I remember it well.
Brel was an incurable romantic and indeed a quixotic figure who staged a French version of the musical Man of La Mancha by Cervantes, translated all the lyrics, directed the production, and played Don Quixote himself. Brel’s version of The Impossible Dream takes the mundane words and stokes up the intensity – not unlike Amsterdam – to the point of madness.
His hopes, as he shuffled off this mortal coil, that his final album would slip out with little fanfare were dashed when it shifted 600,000 copies in its first few days. The generally begrudging French literati welcomed him back in a similar fashion to how they had once welcomed Voltaire before the French Revolution. In both cases death followed shortly thereafter.
Commuting between France and French Polynesia, given the perilous state of his health, was hardly ideal. His final work Brel (1977) unsurprisingly deals with themes of death; he had sung enough about it even before he developed terminal lung cancer,
In JoJo, a reflective and tear-stained tribute to an old friend, features the line: six feet under but you are not dead.
‘Of course there are wars in Ireland,’ he sings in the opening line, following up with everything else that is wrong with the world, ‘but to see a friend cry…’ he offers at the end of each verse, as if unable to finish the sentence himself through emotion.
Well know there are wars going on everywhere, but to see a friend cry, a lover depart, someone who fails to meet you outside the cinema, that is the human condition. The focus is on the particular, not the general. He is ever the humanist.
The songs are so incredible lyrically and musically only Dylan with almost four decades more longevity or arguably Paul McCartney or Cole Porter has written as many great songs in the history of popular music. In my view, he is the greatest troubadour of the 20th century, and the Belgians know it.
Feature Image: Jacques Brel in 1962 by Jack de Nijs for Anefo
In the first part of this series, London-based barrister, who taught Jurisprudence for sixteen years in the Honorable Society of the King’s Inns in Dublin, David Langwallner takes issue with Irish Supreme Court Justice Gerard Hogan devotion to Legal Positivism, instead arguing morality and politics should inform the law. He elaborates further on that debate in this article.
This piece details what I believe is absent in the form of Legal Positivismthat has been advocated by Supreme Court Judge Gerard Hogan. Indeed, there is a wider blind spot among the Irish legal establishment on whether jurisprudence should go beyond Legal Positivism, into the territory of Natural Law.
A few years ago this debate might have been confined to the classroom and seminar, but it now assumes central importance.
There is currently a crisis of legitimacy in the Rule of Law worldwide, unprecedented since the 1930s, and Ireland is not exempt. In my view Positivistic limitations on the subject is a sign of intellectual infantilism – an unnecessary curtailment of the boundaries of law, and what it means. Worse still, Legal Positivism contributes to a false assurance of just outcomes.
The Nuremberg Trials.
The Fundamental Question of Jurisprudence
Let us thus address the fundamental question of jurisprudence: what law is, and what that matters in its practice?
For a Positivist, the essence of law is legal fact, if it stems from an authoritative source often referred to as the Sovereign. Or let us call it, as Hans Kelsen and Hogan do the grundnorm (‘basic norm’). Then the law is divided into rules conferring powers on officials, within a given system, to apply them. This process occurs at a remove from politics or morality.
H. L. A. Hart, the other leading Positivist with Kelsen, calls these rules either primary or duty imposing rules, or secondary or power conferring rules, which often rely on enforcement by adjudication by tribunals or courts, but not, it seems, by interpretation. That is the initial fallacy.
Thus, according to Legal Positivism the job of any official is to apply rules literally. Giving, what Ronald Dworkin called, ‘plain facts their plain meaning.’
Yet, very little is ever plain, and as the leading jurist of the 20th century, not Kelsen but Dworkin, maintained law is a question of the interpretation, not the application, of plain facts. It is also about principle not authority. And the texture of law is slippery and often as unclear as mud. Hence legitimate legal interpretation is a matter of law, not purely political philosophy. That is the crucial point and the one Hardiman and Hogan, among other UCD Positivists, fail to understand.
Consider this in a different context. Imagine a witness says someone’s hair is dark, the question becomes how dark on a scale of 1-100, and was there any grey in the darkness? There is invariably a lack of clarity on any matter, and even the arch-Positivist Hart conceded an open texture or fuzziness even to statutory rules.
That concession by Hart – as Dworkin correctly maintains – undermines his whole theory. For Hart, where the rule is fuzzy, he suggests a judge use his discretion. Dworkin correctly queries whether discretion per se should form any part of a legal dispensation.
In fact, given that many rules have an open texture – in that they are capable of various interpretations – the reliance on an untrammelled or open-ended discretion, as Dworkin maintains, undermines Hart’s conception of Legal Positivism. The natural lawyer John Finnis also correctly points out, in parenthesis, a weakness to Hart’s internal point of view, crucial to his Positivist agenda. To save Legal Positivism from morality Finnis points out, by using normative language such as ‘ought’ or ‘should’ Hart is conceding a moral component to law.
Contrary to Hogan’s position on legal interpretation, Dworkin contended that it must involve political and moral interpretation, and not be an exercise in literalism or strict constructionism.
To make sense of law as a corpus and not rely on discretion per se law legal interpretation must be an exercise in principled interpretation. Only then can it create a seamless whole that is not a web of deceit, or draconian rules, but one of justice.
Adolf Eichmann
Slow Train
The abandonment of principle and constitutional rights is a slow train to the sort of cognitive dissonance embodied in the likes of Adolf Eichman, when he argued he was only doing his job. This is the divorce of officialdom from morality.
Such issues led to the famous Hart-Fuller Debate on the relationship between law and morality and to a consideration of retroactive laws. Fuller in effect maintained we owe no obedience to laws without a tinsel of legality. Even Kelsen applied retroactivity exceptionally in the case of the Nazis.
Dworkins progenitor and mentor is John Rawls, who is decidedly back in fashion in the academic community. Not that his ideas have ever gone away entirely, but his critique of neoliberalism and his conception of a just society seems more pertinent than ever,
Daniel Chandler in his recent bookFree and Equal: What Would a Fair Society Look Like? (2023) argues that there is a broad approval among academics around the ideas of the maximisation of liberties; a measure of discrimination in favour of the disadvantaged; and an element of putting money aside for future generations to meet the economic and environmental devastation of neoliberalism. To our power brokers, however, these principles have little or no significance. Seemingly, as Chandler contends, the more Rawls gains traction in the academic community, the less his ideas are implemented by our rulers.
Of course, Rawls is a political philosopher and though he does address law, he does not do so with the precision of Dworkin.
For Dworkin the answer is very clear: our judiciary have a moral and principled obligation to interpret laws in a socially just way to protect the innocent, the disempowered, the accused and sanction the government when required. This also includes the moral obligation not to defer to a Separation of Powers, but to declare a law unconstitutional when it is called for. It also includes a non-textualist approach to read rights into the constitution as a living instrument, to protect the rights of the citizen, and non-citizen.
In Ireland the lure of Legal Positivism and the abandonment of the wisdom of Rawls and Dworkin among the judiciary has led to the non-enforcement of social and economic rights. This has contributed to a housing and homelessness crisis, tearing apart the very fabric of our society and fuelling the rise of the far right.
The judiciary could have easily followed Canadian and South Africa as well as Indian Jurisprudence, which either give vitality to the Right to Life contained in Article 2 of the Constitution, by including the quality of that life. They might have also revived Article 45, and thus the social contract.
Ensnared by banking interests, debt, and agency capture, the courts have failed to intervene. These decisions and non-decisions are unforgiveable, immoral, and even borderline criminal.
Further, In Rawlsian terms They have not maximised rights over absurd limitations on public and common good considerations, thus systematically destroying due processand privacy rights, ignoring or sidelining EU and ECHR law along the way. They have given ever more power to our police forces, standing idly by as 24-Hour Surveillance takes place, with more special courts to come, amidst an unspecified emergency.
The Four Courts, Dublin.
Long Dead Values
Our gatekeepers have deferred to long dead values. They have not utilised the constitution progressively, and failed to protect non-nationals adequately. I suspect they will curtail freedom of speech if thehate speech bill passes.
Since Adrian Hardiman, and indeed before, they have been utterly useless in upholding the constitution.
Part of the Positivist agenda is to focus on Positivistic realism. Realism, though useful in some respects as an analysis of trial practice and what courts do, justifies cynicism and above all Populism. If there is one idea that captures the leading realists Karl Llewellyn’s conception of policy, it is the will of the majority, or what people want. What Hogan terms the grundnorm of popular sovereignty.
The problem with deferring to Populism in our present Dark Age is that we are dealing with agency capture of the media, excessive blind sheep obedience, alt-right mob rule and the enforcement of it through legislation, such as anti-immigrant measures or mass surveillance.
It is in fact important for judges to be, as Dworkin put it, philosopher monarchs, in the sense of vindicating rights against tyranny. Thus, gatekeepers must protect rights against tyranny and realise that, as Hannah Arendt put it, we should have the right to have rights.
In Ireland the judiciary defer to Kesean popular sovereignty and judicial restraint. It is correct to see them as accomplices to evil. Even Hogan, our finest judge, risks selling his soul to the devil.
Justitia in the Superior Courts Building in Budapest, Hungary.
Are Rules Important?
The other fundamental question is whether rules are really that important. The realist scholar Roscoe Pound called them merely pretty playthings. This is the view, commonly held among realists, that a judge reaches the subjective conclusion, dictated by policy considerations and then makes the rules fit the facts. In short, the rule is an intellectual justification of a conclusion. This is a view I have some sympathy with, but it again demonstrates the obsolescence of black letter law.
Crucially, Dworkin gives rules or plain fact more weight, and thus does not undermine legality but argues that a rule or even the plain fact of a rule is subordinate to the interpretation of principle. Thus, the judge is obliged to attempt to achieve the best creative and constructive sense of the law as a matter of principle, where principles have dimensions of weight and importance, and rules do not.
The important point comes where there is a conflict between a rule and a principle. Here the principle, whether legal or moral, prevails.
Dworkin points to the Lord Atkins Neighbour principle in the foundational case in Tort Law Donoghue v Stevenson (1932), to the effect that constitutional values are principles in the law. Indeed, a crucial application of principle is where a law is declared unconstitutional. That is when a Positive law struck down by a principle. Or when the principles of the ECHR are enforced, which we rarely see, rendering our constitution a nudum pactum – a promise that is not legally enforceable.
In this respect by its embrasure of literalism and historicism in judicial interpretation, Legal Positivism negates the spirit of the law, and deems crucial issues non justiciable. It does not protect matters of principle and rights, and fails to develop the constitution as a living instrument to adapt to changing circumstances.
The negation of this development of constitutional rights has led in America to the justification of handguns, in that they were commonly in use at the time of the American Revolution by the historicist Scalia, and the over-ruling of Roe Versus Wade, as inter alia in a specific context it sought to graft a non-literal privacy right into the constitution of the US.
Dworkin’s principled interpretation, unlike Legal Positivism, takes rights seriously and takes issue with legal realist premises, based on majoritarianism, that rights are subservient to policy consideration.
