Cassandra Voices

Tag: David Langwallner

  • Gerry ‘the Monk’ Hutch Challenges Gangsters Inc.

    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 Cuckoo and 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.

  • On the Question of Immigration

    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

    — CassandraVoices (@VoicesCassandra) January 3, 2026

    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.’

    Image: Matt Barnard

    Vexed Question of Our Age

    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
    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.

  • Distortions Of Language

     

    What tangled web we weave when our intention is to deceive?
    Sir Walter Scott

    The distortion of language lies at the heart of the greatest of threats to human civilisation. It now effects all aspects of the public and civic sphere, from court rooms to journalism to the expression of corporate-political elites. It is what allows atrocities to be sanctioned or airbrushed.

    The distortion of language fundamentally undermines the idea of shared and purposeful communication, whether interpersonal or societal. This is what Jurgen Habermas, in a different context, referred to as Communicative Action – a term borrowed from John Austin’s idea of ideal speech language – effectively purging it of ideology and taint. Distortion undermines the use of language in terms of truth-saying or truth-telling propositions.

    Theodor Adorno famously argued that after Auschwitz to write a poem was barbaric, implying that nothing could conjure up or express in human terms such atrocities. Nevertheless, various accounts by Primo Levi as a survivor in books such as If This Is A Man (1947)  and The Truce (1963) did poetically express the horror and show how human resilience endured. Language survived in a humanistic age to express the terms of the horror, but we are now in a more obviously trans-humanist age, and remnants of civilisation are not as obviously influential or vocal.

    The propaganda and euphemisms leading up to the Holocaust involved the use of language as a masking device to conceal different meanings and agendas.

    Although I am wary of structuralism, I do believe it is often necessary to deconstruct meaning. That occurs when an expression is being used to conceal an ulterior purpose, or to make a horror more palatable. The object of euphemisms, buzz words and jargons is often to distract, deflect and misdirect.

    Kenneth Branagh’s film Conspiracy (2011) effectively depicts the use by the Nazi High command at the Wannsee Conference chaired by Heydrich of the term evacuation, which of course really meant extermination.

    The phrase more typical of our age since Srebrenica has been ethnic cleansing, which is an opaque word for genocide, which at least has been used expressly in response to the actions of the Israelis, but even the utilisation of the appropriate word in a world of distorted coverage invokes fake well-financed indignation.

    In war or military matters historically, other euphemisms are collateral damage, friendly fire, or my favourite crew transfer question – meaning coffins for the dead bodies from the space shuttle.

    George Orwell.

    Orwell

    Any discussion of language in the context of war and politics leads inevitably to George Orwell.

    The term Doublespeak has been culled from Orwell’s 1984 (1949), although it was not used in the text where expressions like Doublethink and Newspeak perfectly express the nature of propaganda.

    In our time, political speech and writing are the defence of the indefensible… Thus, political language must consist of euphemism, question-begging and sheer cloudy vagueness… the great enemy of clear language is insincerity. Where there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms…

    Orwell elaborated on these themes earlier in his magisterial essay The Politics of the English Language (1946). He piquantly observed of political language that it ‘is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.’ The essay chastises vagueness and prioritises clarity and simplicity over euphemisms.

    Thus, when defenceless villages are destroyed it is called pacification, and the plunder of property is called rectification of frontiers. One might think of other euphemisms in use today, such as affordable housing or even debt relief.

    Orwell’s essay is not confined to political language but includes all forms of distortion of language:

    The great enemy of clear language is insincerity. When there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink.

    Though he saw a terminal decline in the England of his time. He did suggest certain remedies well worth citing:

    1. Never use a metaphor, simile, or other figure of speechwhich you are used to seeing in print. (Examples that Orwell gave included swan song, and hotbed. Such phrases are dying metaphors which a present speaker does not understand the context of, and the original meaning rendered meaningless because those who use them did not know their original meaning. The historical interpretation of the US Constitution by such as Scalia is like this.
    2. Never use a long word where a short one will do.
    3. If it is possible to cut a word out, always cut it out.
    4. Never use the passivewhere you can use the active.
    5. Never use a foreign phrase, a scientific word, or a jargonword if you can think of an everyday English equivalent.

    And the last canonical rule:

    1. Break any of these rules sooner than say anything outright barbarous.

    Linguistic Distortion

    Albert Camus is the great prose master both in terms of precision and sensuality. He can be quoted endlessly, but with respect to doublespeak there is this quotation from The Plague (1949) elaborating on Animal Farm (1950):

    There will come a time in human history when the man who says two plus two equals four will be sentenced to death.

    The criminally underrated Ernest Hemingway wrote a little known, but invaluable text called On Writing (1984), containing his observations about his craft, which curiously mirror that of Orwell.

    He advised writers to cut out the scrollwork of ornament. Stick to what is true and cut out the superfluous. Write about what you know. Like Orwell, he emphasises the active verb and the shortest word possible.

    With respect to the issue of immigration the word removal is now used without elaboration or explanation, notably at the recent Tory conference. The word disposal invokes similar considerations. Again, this involves a form of distortion and side-tracking of reality.

    A real problem occurs when bureaucratic language or legalese conceal infamy. People often buy into it for ease of mind, or owing to a blinkered or cognitively dissociated sense that nothing is happening – or that it suits their interests. This theme is beautifully expressed in the Oscar-winning film The Zone of Interest (2023).

    In terms of the precise use of language to explain horror we have the Martin Niemoller parable during the rise of Nazism:

    First, they came for the socialists, and I did not speak out—because I was not a socialist. Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist. Then they came for the Jews, and I did not speak out—because I was not a Jew. Then they came for me—and there was no one left to speak for me.

    Contrast the clarity and sincerity of that with this from Donald Rumsfeld:

    Reports that say that something has not happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; we know there are some things we do not know. But there are also unknown unknowns—the ones we do not know we do not know.

    Rumsfeld comments are wrought with care and are lying to serve a purpose or engaging in deception to so do. That is the point St. Augustine condemned in his categorisations of lying as the truly venal lie.

    Other awful phrases now creeping into our world of sound bites and doublespeak include the new normal. This is effectively a plea to accept degradation and Chinese corporate capitalism, as well as to be controlled and shrivelled in an Age of Surveillance Capitalism. Compliance is another dangerous euphemism.

    We have, conversely, also become obsessed with hygiene and health and are preyed on in that respect. Stay safe. Oh, and take our drugs. The slightest cold sets people off into hysteria, leading to limited physical contact and an increasingly asexuality.

    This new form of social hygiene divides the world into the pure and the impure. Corporate and advertising interests are adept at this. Virtually any episode of the Madmen series set in the 1950s demonstrates that. In legal terms there is always a degree of tolerance of puff and blow to use the contract law term until the disparity between claim and exaggeration meets the reality of what is being done. Simply the best. Largest in the industry.

    Advertising and politics are now so co-mingled, and have been for some time in the interests of big business, that there is now little difference between winning an election and selling tinned beans. Make the product be the change.

    Sadly, such approaches have also crept into the criminal justice system. Thus we find slogans such as no excuse for abuse, while in sex abuses cases the phrase there is no smoke without fire is migrating into closing speeches.

    Political correctness is the ultimate destruction of language, providing an excuse for no platforming people and undermining freedom of expression.

    Malcolm McDowell in Clockwork Orange.

    Simplicity has its Drawbacks

    But with all respect to Orwell and Hemingway simplicity has its drawbacks. Camus was never simple.

    Thus, in Anthony Burgess’ A Clockwork Orange reveals a universe of gobbledygook, much in evidence in social media, reducing language to that of Alex the Droog. The compression of meaning into shorthand symbols or abbreviations is a return to the planet of the apes, creating simplistic misleading forms of communication such as the flawed Me Too movement.

    In my view we should reformulate the legendary text by Flaubert, The Dictionary of Received Ideas (1911-13) and Ambrose Bierce’s The Devils Dictionary (1911), filtered through the legendary dictionary of Dr Johnson in terms of providing more amplified definitions of some of the distortions of language in our age. The expression used to be followed by the real meaning.

    As in the definition of ‘Pension’ in Dr Johnsons’ dictionary: 

    In England it is understood to mean pay given to a state hireling for treason to his country.

    Or ‘Faith’ from The Devils Dictionary:

    Belief without evidence in what is told by one who speaks without knowledge, of things without parallel.

    Or Flaubert’s definition of sex as ‘Intimacy occurred.’

    I thus suggest a new dictionary of the real meanings of the doublespeak of our time, and indeed a reversion to old patterns of behaviour. This requires us to read books leading to an enhanced form of comprehension relying on clarity and simplicity.

    In this respect, self-reportage or sincerity can also be bullshit and ought to be treated with scepticism. Sincerely adopting your own euphemism can lead you to condone atrocities. It is precision and adherence to the facts that is crucial, certainly in political and civic discourse, which is not always easy.

    As Samuel Beckett, the master of succinctness once put it:

    Ever Tried. Ever Failed. Never Mind, Try Again. Fail Again. Fail Better.

     

    Feature Image: Tamás Mészáros

  • Public Intellectuals: Voltaire

    Voltaire (1694-1778) is the self-invented name of François-Marie Arouet, riffed on a childhood description of him as a determined little man. He belongs in the Panthéon in Paris, old wise and wizened, but eyes sharp and gleaming through the stone. The central figure in the Enlightenment, Voltaire’s legacy is now being systematically dismantled worldwide.

    It is notable that Black Lives Matter sought to desecrate his statue despite condemnation of slavery in his most famous book Candide (1759). It was an unjust attack, even allowing for his occasional ambiguity as a product of his times. Why not go to Monticello and attack icons of Thomas Jefferson? John F Kennedy famously said in a meeting of Nobel Prize winners in the White House: ‘there is more intellect in this room except when Thomas Jefferson dined alone.’ We may not simply be desecrating statues, but also those who brought Enlightenment to the human soul.

    Voltaire’s work is eclectic and difficult to classify. His plays are rightly disparaged, though these were often his main source of income. They also brought a lengthy stay in the Bastille, as well as forced exile for over two years in London, where he got to know among others Newton and Swift. There, he wrote a celebratory text on the English, famously describing them as a nation of one hundred religions but only one sauce. He went on to popularize Newton, and is attributed with spreading the story of the apple tree.

    So, using quotations from the man himself let’s explore his central contribution.

    Voltaire was imprisoned in the Bastille from 16 May 1717 to 15 April 1718 in a windowless cell.
    1. Freedom Of Speech

    I disapprove of what you say, but I will defend to the death your right to say it.

    If we resort to ‘no platforming’ or censoring people for saying things we disagree with then all is lost. Sadly, we no longer have a polity dedicated to ideal speech, the utopia envisaged by Habermas, via Jeremy Bentham. Instead, we find a uniform, soporific social media blandness.

    Ronald Dworkin  towards the end of his illustrious career, and in response to the Danish Cartoon incident, wrote a nuanced defence of the right to offend, saying:

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

    So, in a democracy no one, however powerful or important, can have a right not to be insulted or offended.

    Thus, for example, in 2015, when 12 journalists from satirical paper Charlie Hebdo were shot in a terrorist attack, Voltaire’s Trait sur la tolerance/ Treaty on Tolerance (1763), which defends freedom of speech was drawn attention to. Protesters marched down the Boulevard Voltaire in Paris brandishing images of the great man shouting: Je suis Charlie.

    In the treatise he argued: Oh, different worshippers of a peaceful god. …love God and your neighbour.

    Christoper Hitchens Oscar Wilde, along with others such as the English judge Stephan Sedley, have in substance also remarked that the freedom to speak inoffensively is a freedom not worth having  They are merely his intellectual offspring.

    Voltaire with Denis Diderot, Jean le Rond d’Alembert, Marquis de Condorcet and Jean-François de La Harpe.
    1. Religion

    If God did not exist, it would be necessary to invent him.

    The problem in this post-truth-transhumanist zeitgeist is that there exists a moral vacuum. Moral relativism and the structuralists have destroyed community, sociability and the Aristotelian tradition of the virtues. The death of God in people’s lives has undermined society and social ordering. Habermas‘ most recent text in effect says so. Voltaire agrees.

    Voltaire was actually an atheist but deliberately circumspect. On his death bed he was asked did he want the services of a priest for the last rites and renounce Satan. His Delphic response was: ‘This is no time to be making new enemies.’

    Thus, the arch-rationalist and pragmatist recognised the need for doubt. He understood the need for Christian compassion and religion as a source of social order. Indeed, he famously was sceptical of certainties.

    On the brink of the destruction of the ancien regime, he spent his final twenty-five years in Ferney, a fabulous estate near the Swiss border at Geneva. It was built to some extent on the proceeds of winning the French lottery. He treated his workers admirably and built a model town, which I have had the privilege of visiting.

    Luckily, he was not around to witness the descent of the French Revolution into barbarism and terror ushered in by virulent atheists such as St Just and Robespierre.

    Indeed, Thomas Paine, the author of The Rights of Man and co-author of The French Declaration of The Rights (1793) narrowly avoided the guillotine by a mark on the wrong door at the height of the Terror.

    In the interests of balance it was worth recalling another of his aphorisms on religion:

    I have never made but one prayer to God, a very short one: Oh Lord, make my enemies ridiculous. And God granted it. (Letter to Étienne Noël Danielsville, May 16, 1767)”

    and

    God is a comedian playing to an audience that is too afraid to laugh.

    Voltaire at Frederick the Great’s Sanssouci, by Pierre Charles Baquoy.
    1. Miscarriages of Justice

    It is better to risk saving a guilty person than to condemn an innocent one.

    In the summer of 1765, in the little town of Abbeville in Picardie in northern France, three young men, Franzoi’s-Jean Lefebvre, chevalier de La Barre, Gaillard d’Alene and Charles Moisnel, were accused of sacrilege, blasphemy and irreligion. A crucifix had been damaged on a bridge leading to Abbeville. The three young men had been observed failing to doff their hats as a religious procession passed. They had been heard singing songs with pornographic allusions to the Virgin Mary. Shocking and libertine books were discovered in La Barre’s room, among them Voltaire’s Dictionarie Philosophique, printed anonymously in Geneva in 1764.

    On July 1 1766, La Barre was tortured and beheaded. His body was burnt on a pyre together with Voltaire’s Dictionary. Voltaire heard about the case in his retreat at Ferney, when the first accusations were made.

    At first, he was hopeful that the death sentence would be commuted. Later, when he learned that the execution had taken place, he was horrified. In a letter to a friend, he expressed his horror at the strange combination of frivolity and cruelty he observed in the French. After the burning and symbolic execution of his Dictionary he felt indirectly targeted and under genuine threat. Extradition in fraught times was a possibility.

    He retaliated brilliantly. In the 1769 edition of the Encyclopaedia entitled La Raison par alphabet, Voltaire includes an article on torture in which he relates La Barre’s ordeal. The prosecution mentioned this scandalous book which was later put on the Vatican’s Index Libro.

    He wrote initially in the hope of achieving a retrial. With each new attempt to intervene on behalf of the accused, Voltaire goes back to the documents, re-reading and cross-checking. As new information comes to light, he modifies his arguments, considering the potentially biased nature of the “facts” that had been presented to him.

    Noticeably Voltaire scatters them throughout his letters to friends, but also circulates them among important members of the judiciary. Luckily, he had the privilege of being on friendly terms with the powerful. Thus, he enjoyed a volatile lifelong relationship with Frederick the Great of Prussia and Catherine the Great in Russia as well as the King of France. This saved his skin.

    In the Le Barre case what was at issue was not the legality of the proceedings, but the legitimacy of the judiciary.

    A crucial text Prix de la justice et de humanity (1777), describes the French justice system from the point of view of a Swiss protestant traveller in France. Yet, the last important text Voltaire wrote on the case was Le Cri du sang innocent (1775), a letter addressed to the King of France, Louis XVI, and signed by La Barre’s co-accused who had escaped to Prussia. It was a decidedly brave stance.

    He also intervened famously in the Calas affair, involving a Protestant merchant who was sentenced to death on the Wheel by the Parliament in Toulouse. and executed on March 10th, 1762 after being convicted of murdering one of his sons who had openly converted to Catholicism. Voltaire wrote to the Comte argental and Memo la Comtesse:

    …You will ask me, my divine angels, why I am so interested in this merchant of Toulouse who has been broken on the wheel. I will tell you. First, it is because I am a man. Then it is because I see how foreigners in discussing this affair condemn us. Is it necessary to make the name of France stink all over the continent…. which dishonours the whole of human nature?

    Voltaire was contacted about the case, and after initial suspicions that Calas was guilty of anti-Catholic fanaticism were dispelled by his investigations, he began a campaign to get the sentence overturned, claiming that Marc-Antoine had committed suicide because of gambling debts and being unable to finish his university studies

    Voltaire’s efforts were successful, and King Louis XV received the family and had the sentence annulled in 1764. The king fired the chief magistrate of Toulouse, and in 1765 Jean Calas was posthumously exonerated. There was also the posthumous pardon of the Comte De Lally, which led to a comment from a Swiss functionary with whom he maintained cordial but confrontational relationships: ‘You seem to attack Christianity but do the work of a Christian.’

    Portrait of Voltaire in the Palace of Versailles, 1724-1725.
    1. Post Truth

    Those who can make you believe absurdities can make you commit atrocities.

    and

    It is forbidden to kill; therefore, all murderers are punished unless they kill in large numbers and to the sound of trumpets.

    Is there a more apt comment on the way our post-truth disinformation society justifies genocide, racism and the exclusion and murder of the other

    Then there is the defining quote representing the motif of his career: It is dangerous to be right in matters on which the established authorities are wrong.

    1. Self-Care

    We also find him dispensing advice that is superior to any self-help books currently on the market, and certainly a lot better than Jordan Peterson’s

    The more I read, the more I acquire, the more certain I am that I know nothing.

    and

    Let us cultivate our garden.

    And he did so for twenty-five years.

    So, what if he was a bit of a libertine. The alt right and indeed puritanical left are very adept at confusing sexual licence with immorality.

    He also wrote science fiction. In Micromegas (1752) fiction aliens visiting earth learn that a theologian Thomas Acquinas said the universe was made uniquely for mankind they collectively erupted in laughter.

    He is really the creator of all that is now being lost. The father of constitutionalism, the rule of law, decency and anti-extremism, a hater of superstition. His scepticism still stares down from the Panthéon.

    Feature Image: Voltaire’s tomb in the Paris Panthéon

  • A Visit to the Hague

    Late last year HHJ Gumpert KC – one of the judges in the formidable fortress that is Woolwich Crown Court the flagship anti-terrorism court in the U.K. – kindly secured for me a visit to the ICC out of court time. The tour was given by a former member of the team he led in the Congolese prosecutions.

    The ICC issued its first judgment in 2012 when it found Congolese rebel leader Thomas Lubanga Dyilo guilty of war crimes related to his abuse of child soldiers. Lubanga was sentenced to fourteen years’ imprisonment. Gumpert also successfully prosecuted Dominic Ongwen, who was sentenced to twenty-five years for myriad crimes.

    The Rome Statute, which entered into force on 1 July 2002, established the International Criminal Court, though Israel voted against it, after murmurings on the transfer of populations that is the resettlement programme. The court works on the principle of ineffectiveness, where national courts have been derelict. It lacks universal territorial jurisdiction, and may only investigate and prosecute crimes committed within member states, crimes committed by nationals of member states, or crimes in situations referred to the Court by the United Nations Security Council.

    On 17 March 2023, ICC judges issued arrest warrants for Russian leader Vladimir Putin and the Presidential Commissioner for Children’s Rights in Russia for alleged child abductions in the 2022 Russian invasion of Ukraine. Putin was charged for actions against Ukraine, which although not a party to it, has accepted the authority of the court since 2014. Should Putin travel to a state party to it, local authorities can arrest him. Later in 2023, Russia’s Ministry of Internal Affairs retaliated by placing several ICC officials on its wanted list. On November 21 last year, when I was in Gompert’s court in Woolwich, warrants were formally issued for the arrest of Benjamin Netanyahu.

    It occurs to me that an informal journalistic war crimes court was initiated by Christopher Hitchen, whose book The Trial Against Henry Kissinger (2001) accused Henry Kissinger of war crimes. This led to a Parisian judge issuing an arrest warrant and Kissinger hopscotching it back to the safety of Fox News. So, Netanyahu will no doubt control his foreign trips, and Ireland is clearly out of the question. Mr Putin does not seem to need to travel to enemy states.

    The process to establish the ICC district may be “triggered” by any one of three sources: (1) a state party, (2) the Security Council, or (3) a prosecutor.

    So, there is huge independence in that there is a self-originating prosecutor jurisdiction. though he needs the approval of Pre-Trial Chamber to initiate the investigation. The factors listed in Article 53 are a reasonable basis for a prosecution. These include whether the case would be admissible, or whether there are substantial reasons to believe that an investigation would not serve the interests of justice (the latter stipulates balancing against the gravity of the crime and the interests of the victims).

    Brumandinho Dam Disaster, Brazil, 2019.

    2016 Policy Paper

    During my visit there was much talk about the Policy paper on case selection and prioritisation published in September 2016, indicating that the ICC would focus on environmental crimes when selecting cases. According to this document, the Office will consider prosecuting Rome Statute crimes that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.

    Richard A. Falk coined the phrase Ecocide as a Crime Against Humanity in 1974. In my view we should also include Economicide, when one deals with the illegal dispossession of land. What about bringing banksters or hedge fund managers (including through NAMA) to justice? And what about no longer drawing a distinction between the Kinahan gang and Goldman Sachs? Or is it time bring a case against Bill Gates or Elon Musk?

    It should be born in mind that, alas, having someone prosecuted by the ICC is a tricky exercise. The Israelis clearly breached international law when they bundled Adolf Eichmann onto a plane in Argentina in 1960. How do you get Netanyahu to court? Or Putin? Or what if one indicted Trump or Bannon? A real danger is that the present U.S. administration will directly or indirectly withdraw funding for the court, even though the U.S. is not a signatory. They might even undermine American officials for working against the interests of Israel, or any of its allies in this dangerous world.

    The core concept of Crimes Against Humanity had its first incarnation during the Nuremberg Tribunal, but its inception may derive from the discourse in Sophocles ‘Antigone’ as to whether an immoral law is a law. In that play – the Rosetta stone of modern natural law – the heroine Antigone observes to the harsh, positivist Creon, King of Thebes, who will not allow her brother, who has fought against him, to be buried with the proper rites, that natural law has been breached.

    Yes; for it was not Zeus that had published me that edict; not such are the laws set among men by the justice who neither dwells with the gods below; nor deemed I that thy decrees were of such force, that a mortal could override the unwritten and unfailing statutes of heaven. For their life is not of to-day or yesterday, but from all time, and no man knows when they were first put forth…

    From the great Roman statesman Cicero’s perspective, an unjust law is not a law: ‘Those who formulated wicked and unjust statutes for nations, thereby breaking their promises and agreements, put into effect anything but laws.’

    Most famous of all, early Christian lawyers, St Augustine of Hippo said: ‘lex iniusta non-Est lex’ – an unjust law is not a law.

    Radbruchs’s Formula

    A crucial juristic figure was the German Gustav Radbruch (1878-1949), both a law professor and a government minister during the Weimar Republic. In Radbruchs’s Formula he argued that where statute law was incompatible with positivist law to an intolerable degree, and where it negated the principle of equality, which is central to justice, it could be disregarded.

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

    For him justice (Gerechtigkeit) was linked to human rights. Thus, in Funf Minuten Rechtsphilosophie he contended that there was a law which was above statute: ‘However one may like to describe it: the law of God, the law of nature, the law of reason.’

    It is important to note that his views were followed in various German cases after the War and was part of the discourse that led to the Nuremberg war crimes tribunal.

    Historically much later, in the 1992 cases of Strelitz, Kessler and Krenz, former East German Border Guards were convicted of offences despite section 27/2 of the East German Border Act that indicated that the protection of the border outweighed the right to life. The German Supreme Court in endorsing Radbruch indicated that:

    [A] justification available at the time of the act can be disregarded due to its violation of superior law if it shows an evident and gross violation of basic principles of justice and humanity… The contradiction of the positive law to justice must be of such unbearable proportions that the law must yield to justice as incorrect law.

    A group of Bosniaks from the Lašva Valley close by Travnik, Bosnia and Herzegovina that were forced out of their homes and villages by Croat forces in 1993. Photo: Mikhail Evstafiev.

    Ethnic Cleansing

    The Nuremberg Court and The European Convention on Human Rights were set up with the idea that the cataclysms of the past must never happen again. Sadly more have come to pass. In Bosnia we witnessed the arrival of a modern variant: ethnic cleansing. In 1992, the United Nations General Assembly deemed ethnic cleansing to be a form of genocide stating that it was:

    Gravely concerned about the deterioration of the situation in the Republic of Bosnia and Herzegovina owing to intensified aggressive acts by the Serbian and Montenegrin forces to acquire more territories by force, characterised by a consistent pattern of gross and systematic violations of human rights…. controlled areas of concentration camps and detention centres, in pursuit of the abhorrent policy of ‘ethnic cleansing’, which is a form of genocide.

    In 2001, the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was genocide though the Court had no authority to determine whether it amounted to war crimes and Crimes against Humanity. A kind of fore runner of the ICC though ad hoc.

    The court concluded by seeking to eliminate a part of the Bosnian Muslims, the Bosnian Serb forces had committed genocide. They targeted for extinction the 40,000 Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general.  They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them, solely on the basis of their identity.

    Slobodan Milosevic, the former President of Serbia and of Yugoslavia, was the most senior political figure to stand trial at the ICTY. He was charged with having committed genocide. The formal accusation accused him of planning, preparing and executing the destruction of the Bosnian Muslim national, ethnical, racial or religious groups, as such, in named territories within Bosnia and Herzegovina.

    He died during his trial, on 11 March 2006, and no verdict was returned. Ten years later, Radovan Karadzic was found guilty of genocide in Srebrenica, war crimes and Crimes against Humanity, ten of the eleven charges in total, and sentenced to forty years’ imprisonment.

    Morality of the Law

    The natural lawyer Lon Fuller, in supporting Radbruch, argues that the German courts were correct in striking down the Nazi laws and that a legal system must have certain characteristics if it is to command the fidelity of a right-thinking person. Fuller, in The Morality of Law, (1964) argues that Nazi law did not have coherence and goodness and instances the use of retroactive legislation, such as the Rohm purge of 1934. Further, for Fuller, the Nazi laws were deeply immoral for a variety of procedural reasons. They were not published, they were vague, and they could not be interpreted in a congruent fashion.

    We are now entering such a dangerous universe. In camera, unpublished surveillance laws are violating privacy, and retroactive and overly broad legislation erode free expression. The anti-immigration hysteria and the rise of the far right may lead to de facto ethnic cleansing. The control of the world by transnational corporations has occurred through violations of privacy, data mining and economic crime.

    The real concern in northern Europe and in Brussels also is around how AI will not be controlled by a corporate economy. Why is that? Considerations of profit will ensure, as the former head of AI in Google recently argued, that within thirty years there is a ten to twenty percent chance of human liquidation. It trespasses in an unbridled way on boundaries.

    The question of compensation and reparation also arose in our discussion at the ICC, and I mentioned that the Innocence Project in all its conferences has a separate stream for the exonerated. So does the ICC. Thus, surely it is time the Irish government finally to deliver on its Magdalene Laundry promises, and compensate those disposed by banksters? Fat chance.

    The concept of obligations ergo omnes needs to be extended to new challenges. The ICC needs to be supported to extend its jurisdiction. They seem beleaguered but to quote Halldor Laxness they are at least Independent People. Independent People are important. Thus bankers were jailed in his native land Iceland when Independent People prevailed.

    Feature Image: The premises of the International Criminal Court in The Hague, Netherlands. The ICC moved into this building in December 2015.

  • The Austrian Mind

    There still exists – even today – a yearning, a nostalgia for European solidarity, a solidarity of European culture. Regrettably, solidarity itself no longer exists, except in hearts, in consciences, in the minds of a few great men at the heart of each nation. European consciousness – or what one might call a ‘cultural European awareness’ – had been on the wane for years ever since the awakening of national identity. You could say that patriotism has killed Europe.
    Joseph Roth, On the End of the World (first published in 1933).

    Late last month 28.9% of Austrians voted for the Freedom Party (FPÖ) led by Herbert Kickl, an avowedly anti-migrant, anti-Islamic party, founded in the 1950s by former Nazis. The governing conservative Austrian People’s Party (ÖVP) gained 27.5% lost 20 seats, while its coalition partner, the Greens received 8.2%, losing 10 seats. In third place, the centre-left Social Democratic Party (SPÖ) received 21.1%, marking its worst result ever. In fourth place, the liberal NEOS increased its share to 9.1%.

    We can only hope that the conservatives do not enter into a coalition with Kickl’s party as Hindenburg did with Hitler’s Nazi party. Perhaps a Dutch solution will at least dilute the forces of darkness. Kickl was formerly the speech writer of the now-deceased long-time leader of the Freedom Party, Jörg Haider, but Kickl is far less ambiguous in his pronouncements than his former boss.

    What’s clear is that the far right is on the rise across Europe, Ireland and the world. My own childhood in Ireland, as a half-Austrian, not unlike Hugo Hamilton’s experience as recounted in his autobiography The Speckled People, involved casual racism and bullying on account of my background.

    At one level Austria is among the most cultured of nations.  So, I defend it. Ma Vlast as Smetana said about Czech Bohemia, albeit a defensive posture often leads to a failure in understanding. Why Kickl? What is the Austrian Mind that has created this?

    Mozart family, c. 1780 (della Croce); the portrait on the wall is of Mozart’s mother.

    Mozart of Salzburg

    My family, who I am close to, hail from Salzburg, home of the Fespiele. Mozart was, of course, born in Salzburg where a little museum glorifies his brief tenure on Earth. Mozart’s music combines lyricism, frivolity and profundity in equal parts. What it points to in the human condition is not just chocolate-box fripperies, or the texture of lightness that is Eine Kleine Nachtmusik, but the darkness therein. Darkness threads through the Austrian mind, juxtaposed with light.

    Thus, Don Giovanni is about the destructive powers of rakish satanism, also evident in Stefan Zweig’s arguably best book beautifully filmed by Max Ophuls’ Letters from an Unknown Women.

    In Mozart also the incomparable Magic Flute splendidly rendered into film by Ingmar Bergman, is in effect about the dubious justification of freemasonry to which Mozart belonged; and also, a cri de coeur, in praise of enlightened and benevolent monarchism against the vectors of state and, in particular, church authoritarianism. This assertion of a wise moderation against extremism resonates today.

    The great enfant terrible of Austrian letters and its greatest post-war writer Thomas Bernhard was gloriously insulting about Austria. His masterpiece Woodcutters (1984) is about a man in a chair at a party sipping Champagne. Letting fly at Austrian bourgeois hypocrisy, he says:

    Everything about you, everything you are, has always been pretence, never genuine, never real.

    In his will, Bernhard ordered that none of his works should be performed in Austria. This has been deliberately avoided. All cultures have their tropes.

    The Merry Widow: https://www.youtube.com/watch?v=tv1GNZCyL64

    Austrian Kitsch

    Culturally, Austrians, along with the Irish and British, have far too close a relationship with kitsch. The Merry Widow light operetta, like a jaded ritual, is still performed in the Lehrer Theatre in Bad Ischl and elsewhere. The Blue Danube is not unlike a classic Britpop song.

    The great Herman Broch was fascinated by kitsch, linking it correctly to a decline in values:

    The maker of kitsch does not create inferior art, he is not an incompetent or a bungler, he cannot be evaluated by aesthetic standards; rather, he is ethically depraved, a criminal willing radical evil. And since it is radical evil that is manifest here, evil per se, forming the absolute negative pole of every value-system, kitsch will always be evil, not just kitsch in art, but kitsch in every value-system that is not an imitation system.”

    In some respects, the triumph of kitsch paves the way for Nazism, as Broch and indeed Robert Musil have both argued. Radical evil and bad art is evident in our age too. This is a kind of camp fascism which Susan Sontag also identified.

    Beethoven was of course German, but lived and died in Vienna. His darkness is a counterpart to Mozart’s light. His deafness influences the isolated pessimism of the later atonal dark sonatas, and are close to the finality of expression in musical terms that Beckett created in language.

    His final string quartet is integral to Dr Faustus by Thomas Mann, where the satanic composer, modelled on Heidegger, sells his soul to the devil.

    I have found that it must not be. The good and the noble, what they call the human, even though it is good and noble, what men have fought for, have stormed citadels for, and in their moment of fulfilment, have jubilant proclaimed it is not to be. It is not to be, it will be taken back. I will take it back.

    Mann, the great German conservative, had the moral integrity to decamp to the U.S. and to Switzerland, but a crucial point to appreciate is that conservatism is not all bad if it conserves the good and the ethical too. So, the Christian Democrats in Austria have a stark choice, whether to embrace satanism or not.

    Sleepwalkers

    The rise of Nazism is also anticipated brilliantly in Broch’s The Sleepwalkers, one of the great novels of Austrian heritage. In the character of Hugenau, a man solely motivated by profit – homo economicus to use the term favoured by the nefarious law and economics movement in Chicago – we have a real sense in 1918 of a brutalised generation containing the seeds of fascism. The book culminates in the murder of a journalist and the rape of his wife.

    This is akin to neoliberal Europe today where meaningful journalism has been effectively killed and defiled, as state-sponsored criminals launch hatred at ‘the other.’ Off with their heads, or to Rwanda, or now Albania.

    The legendary Austrian filmmaker Michael Haneke in The White Ribbon, based in pre-war Germany at the turn of the twentieth, demonstrated how damage had been done to a whole generation by a cruel form of authoritarianism. Today, social media has augmented the problem of semi-literacy. Strange fruit, as Billie Holiday would say, is ready for demonisation. In Ireland the neoliberal governing parties have generated the social conditions for riots and a new decadence.

    As for Italy, the land of Fellini and Da Vinci, where the far-right mayor of Monfalcone near Joycean Trieste has banned cricket as she does not like Bangladeshi people in her town; they only play cricket she says and contribute nothing. The fact that such football clubs as AC Milan was originally a cricket club seems lost on her. Mayor Anna Maria Casing, elected on an anti-immigration platform is now an MEP. Her far-right colleague, prime minister Meloni prosecuted Roberto Saviano the legendary journalist for calling her a bastard over her immigration policies.

    So, Austria is not alone in its infamy.

    The darkly pessimistic Herman Broch shows how the far right and populism go hand-in-hand with hatred:

    It is always he, unfortunate wretch, who assumes the role of executioner in the process of value-disintegration, and on the day when the trumpets of judgment sound it is the man released from all values who becomes the executioner of a world that has pronounced its own sentence.

    The Rathaus (City Hall), the seat of the local government.

    Golden Age

    The golden age of Vienna ended peremptorily with the dismembering of the Austrian empire, after the assassination of Archduke Ferdinand at Sarajevo sparked the inferno of World War I, when leaders sleepwalked into war. This is the state of somnambulism that Broch also identified evident in Musil.

    The word Kaakinen is Broch’s playful word for Vienna which, in effectively means shit. Thus, he writes in The Man Without Qualities:

    Stupidity is active in every direction and can dress up in all the clothes of truth. Truth, on the other hand, has for every occasion only one dress and one path, and is always at a disadvantage.

    In Zweig’s retroactive memoir The World of Yesterday there are references to Freud and Herzl (one of the founders of Zionism), among the titanic intellectual figures of pre-war Vienna. These are curiously name-dropped like the celebs of our time, but in a curious state of derealisation of how history is closing in. Freud, who was Austrian, died as an emigre from fascism in the U.K..

    Whether the concept of hysteria is sexual or not, no doubt this is a hysterical age where all sorts of fantasises are being sublimated into nefarious activities and agendas – and indeed where persecution delusions are omnipresent. This leads to the scapegoating of immigrants.

    Ludwig Wittgenstein, 1930.

    The Sound of Silence

    Ludwig Wittgenstein is central to our age of distortion and manipulative language. The fundamental achievement of his Tractatus is a recognition of the limitations of language. It can only show and represent, he argues, and, within limitations, clarify. Thus, language is context-specific, self-limiting and denuded of ethical and moral context.

    Reading Wittgenstein, like reading Hemingway, Camus, and Beckett, clarifies how language should be used clearly, and is most useful for everyday life, but not ethics. The final line of the Tractatus has acquired a mythical status: ‘What we cannot speak about we must pass over in silence.’

    Silence is important, but when we can speak let us speak out ethically. A recent Austrian Nobel laureate is Peter Handke is a great writer, though not in Thomas Bernhard’s league. Handke’s flirtation with the Serbian cause, however well-intentioned and misconstrued, leave a degree of doubt, given the Austrian mindset, but there is a rich warm humanism in his work.

    Handke argues you must create silence or, rather, the effect of silence, through words. A Sorrow Beyond Dreams his recent recollections of his mother’s suicide is jaw-dropping, and among the best books published in the last ten years. So let us create the silence of words, before it is too late.

    Feature Image ‘Avenue in the park of Schloss Kammer’ produced by Austrian artist Gustav Klimt in 1912 whilst he was living near the village of Unterach on the southern shore of lake Attersee in Austria.

  • The Relevance of Jurisprudence to Law Part 2

    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 Positivism that 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 book Free 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 process and 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 the hate 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.

  • Guilt and Innocence in the Criminal Justice System Part 2

    As the founder of the now seemingly inactive Irish Innocence Project, and co-founder of The European Innocence Network, I staunchly oppose the death penalty, with exceptions for certain Crimes Against Humanity. I have personally visited and represented individuals on death row in Kenya and the U.S.. This underscores the critical need for our legal system to exercise caution, and precision, to avoid wrongful convictions.

    Recently, I have condemned in a Cassandra Voices Podcast the inhumane prospect of Julian Assange enduring indefinite incarceration. This stance does not, however, imply a belief in universal innocence, or countenance a dismissal of deserved punishment. Rather, I advocate for a measured approach to justice, echoing Shakespeare’s notion of ‘measure for measure’ in determining appropriate consequences for actions.

    Following an ethical determination of guilt, the central question revolves around what form of punishment is suitable. But before delving into punishment, we must first address the concept of guilt, and whether the guilty evade accountability.

    Unfortunately, instances abound of individuals with power or wealth evading justice through various means. Examples include former President Trump and Clinton’s long list of pardons on leaving office, and instances of state officials abusing their authority, as depicted in literature such as Klima’s 1991 novel Judges on Trial. These cases underscore the danger posed by those entrusted with upholding the law manipulating it for personal gain.

    The Worst Criminal

    A state or judicial criminal is often the worst criminal. They have subverted the Rule of Law and the processes they were appointed to uphold. They are professional hypocrites.

    In his 1971 detective novel Equal Danger, Leonardo Sciascia demonstrates how in Italy judges may become, by stages, complicit in murder. Chillingly, the President of the Supreme Court intimates to the investigating detective that in condoning murder the judiciary are incapable of error.

    Sciascia also documented the complicity of the mafia and Christian Democrats in the murder of God’s banker Roberto Calvi in 1982, and of course the kidnap and murder of the progressive, or incorruptible, Christian Democrat Aldo Moro in 1978.

    In Ireland the incident that primarily gave rise to Conor Cruise O’ Brian’s immortal phrase GUBU (grotesque, unbelievable, bizarre and unprecedented) was the murderer of the nurse Bridie Gargan and the farmer Dónal Dunne in 1982. The murderer Malcolm McArthur was discovered on the private property of then Attorney General Patrick Connolly.

    Not uniquely in Ireland, the powerful avoid and do not accept responsibility for their actions and may resort to framing others. Voltaire, the earliest expert in miscarriages of justice coined the phrase per encourager les autres, to deal with the scapegoating of Admiral Pyle by the establishment.

    Political criminals also enact laws to protect their interests. The new Hate Crimes Bill in Ireland is finally being opposed by SF as they have recognised the danger it poses.

    Foundational Tenet

    The legal principle of ‘presumed innocent until proven guilty beyond reasonable doubt,’ as established in the case of Woolmington v DPP (1935), serves as a foundational tenet. Yet, challenges arise, particularly regarding the interpretation of evidence and credibility of assessments.

    In every case I have recently conducted the same question is asked by jurors: “is sure the same as beyond all reasonable doubt?” Judge rightly say yes, and try to avoid further questioning to avoid being buried in semantics.

    Of course, the crucial point is that unless someone tells a defence lawyer he or she is guilty – in which case you either withdraw or can only defend by challenging the prosecution evidence without asserting innocence – you cannot know definitively.

    Cognitive bias cuts all sorts of ways. A defence lawyer should be timorous about getting a client to plead guilty if there is any doubt. Not least, many clients are vulnerable and inclined to please authority and, as has happened in my experience, defendants may seek to change their plea.

    The intersection of morality and legality further complicates matters. It is essential to caution against conflating moral judgment with legal culpability. Instances of moral condemnation influencing legal proceedings – as seen in the admission of bad character evidence – highlight the need for a nuanced approach.

    A feature of my speeches is to caution a jury not to confuse morality with legality. Moral condemnation is often used by the prosecution to smear the accused, and the previous bad character admissions ushered in by Blair in the U.K. opens that gateway.

    In Ireland, however, the exclusion of bad character is not a good idea. Evidence of bad character is only inadmissible in certain defined exceptions, such as if one puts one’s good character in evidence. There should be more of a halfway house.

    Despite efforts to discern guilt, the process remains fraught with challenges. Guilty individuals often resort to elaborate tactics to obfuscate the truth, necessitating a vigilant approach from their lawyers. Additionally, societal biases and institutional pressures can influence witness testimony and judicial outcomes.

    In the pursuit of justice, it is crucial to distinguish between genuine miscarriages of justice and rightful accountability. While liberal objections to wrongful convictions are warranted, there are instances where the punishment must align with the severity of the crime. The case of the Moors Murderers 1963-65, Ian Brady and Myra Hindley, serves as a poignant example of criminals rightfully facing lifelong imprisonment.

    Reluctantly, it must be conceded many are guilty. And it is sometimes very difficult to get them to accept their guilt. Even my great hero Clarence Darrow ‘Attorney for the Damned’ represented Leopold and Loeb, who in a nihilistic fashion attempted to kill another young man simply to prove they could get away with it. As in the Jamie Bolger case. Darrow knew they were guilty and avoided an insanity plea. Instead, he made the greatest plea in mitigation in the recorded legal annals to avoid the death penalty. But they did do it.

    Lucy Letby mugshot.

    Nurse Letby Case

    The recent case of Nurse Lucy Letby who was found guilty of murdering seven infants in Manchester crown court in 2023 is instructive.

    She is not the first Mancunium serial killer. Between 1963-65 in Saddleworth Moor near Manchester Mancunians Ian Brady and Myra Hindley murdered innocent children. It is noticeable that they were also influenced by the film ‘Compulsion‘ documenting the Leopold and Loeb case.

    Working on a recent case in Manchester, I resisted the temptation to visit the moors, but did pass by Market Street, Cheshire where another notorious murderer, the serial killer and doctor, erstwhile respectability known as Harold Shipman had his surgery. In this case a later inquiry revealed the police should have acted sooner. So, one should not always attack the police.

    And there is some evidence in Nurse Letby’s case that the NHS, in collective group think, buried their heads in the sand as the evidence accumulated. They were protecting the guilty through cognitive bias. A consultant who gave evidence in her case said lives could have been saved if there was not a cover up to preserve institutional reputation. Thus, in fairness, state officials, doctors and police officers are often hit from both sides: damned if they do; damned if they don’t.

    I have represented clients in several cases where due to witness reluctance or external pressures, the police have taken the action of NFA (No Further Action), which they have come to regret.

    The cheaper the crook…

    So, what are the hallmarks of guilt? It is surprisingly difficult to work out. One crucial sign is perhaps, as the American actor Humphrey Bogart said: ‘the cheaper the crook the gaudier the patter.’ Overly complex explanations are often a sign of guilt.

    The patter includes: convoluted challenges to police evidence gathering and exercise of due diligence on instruction; excessive casting of doubt on overwhelming expert evidence; elaborate excuses for extreme violence based on self-defence; and inappropriate allegations of police misconduct.

    Now the process must be tested and many wish to save their skins. Those who are desperate will often resort to anything, and the defence lawyer on instructions often must facilitate this.

    I remember how both myself and Adrian Hardiman were tarred with damnation, overlooking constitutional niceties, in the constitutional challenge to The Proceeds of Crime Act as lawyers for Gilligan by the Sunday Independent.

    A trial process weighs up whether evidence is relevant or not, and whether there is a case to be answered. The question of whether a case should have been brought in the first place is a different matter.

    Legal representatives may also argue over whether there has been an abuse of process through non-disclosure, non-compliance or a fit up. In this respect the absence of video or phone evidence is crucial. Once confronted, a guilty person may tangle themselves up in lies, which affects their credibility when giving evidence

    A witness who is lying must avoid the truth and is often lulled by persistent questioning into the trap of telling the truth by indirection.

    Thus, the prosecuting barrister Edward Carson, after listening to days of Oscar Wildes’ ridicule at his trial for gross indecency in 1895, popped the surprise question – a deadly weapon to be sparingly used in the barrister’s art – about the boy Grainger.

    Did you Kiss him?

    The answer which leads to the Reading Gaol and early death in Paris was:

    Oh no he was far too ugly.

    It must be stressed that the credibility of a witness must be read in the context of the vulnerable person they may be. Some suffer from addiction and mental health issues, which is not to say they are not telling the truth.

    Sadly, in a world of increasing subjectivism and loss of truth those who lie may have been telling the truth as they see it, or as they remember it, but not as a fact. Witnesses for defence and prosecution also have intellectual masking to justify in their own mind what they have done. Everyone, as Voltaire indicated, has their reasons.

    Anti-social Media

    In our time, text evidence from social media and other digital uploads such as chat lines are often very incriminating. The utilisation of social media can have disastrous consequences as historic texts and chats can come back to haunt you. They might demonstrate a propensity as a prelude or aftermath to an incident, and they often show planning, ostensible grooming or worse still acceptance. But comments of a salacious nature in isolation can be magnified by unscrupulous prosecutors.

    Scurrilous tactics are never justified, but tarnished evidence is often admitted. I am no fan of racist vigilante groups or engaging in quasi entrapment, but I recognise that sometimes they catch people who are guilty, or, more ambiguously, exhibit certain traits.

    Video evidence often confronts someone with what they really did under the influence and normally leads to a quick acceptance of responsibility.

    What happens next has been characterised by Oliver Wendell Holmes as the ‘bad man’ of law:

    If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, and not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.

    The legal process is often unforgiving, albeit this is necessary at times.

    I do not believe in punishment as denunciation, or retribution where guilt and sin are confused, such as occurred in the sentencing of Roger Casement to death.

    With respect to what the British call just and proportionate punishment, I had the privilege of inspecting a Norwegian prison when attending a death penalty conference in Oslo. The tennis courts, swimming pools, private rooms discourage recidivism and potentially rehabilitate criminals.

    The Court of Appeal in the UK in R v. Ali (2023) is actively discouraging judges from sending people to prison, not least in congested post-Covid times. Most come out not wiser, but weaker.

    But let us also be conscious of the appropriate punishment for the massacre of the innocents.  Not all who claim a miscarriage has occurred are victims. There is a time for a liberal objection to a miscarriage of justice, and a time for when the punishment should fit the crime. Even the Norwegian prison system struggled with the serial killer Anders Breivik, who they had to build a special facility for.

    I wonder will certain lawyers, businessmen or lawyers ever see justice? Not likely, apart from a few subordinates thrown to the wolves. This was the pattern of our banking prosecutions. The rich can retain the best lawyers and engage in plausible deniability, and a chain of command.

    Thus, corporate lawyers, judges and businessmen, as well as puppet politicians, have the justice game rigged, up to the point where they commit murder. Then of course the system must react? This may become a pertinent question for Ireland in the coming months.

    Feature Image: Christian Wasserfallen

  • We are in a new dark age: David Langwallner on Julian Assange


    David Langwallner is a barrister working in the U.K.. He has written numerous articles for Cassandra Voices, and was a natural choice to speak to about the Julian Assange case, which shows every sign of drawing towards a dénouement in a London courtroom.

    Between Tuesday, February 20 and Wednesday, February 21, a strange scene played out before the High Court. As the judges listened to Assange’s lawyers and to American envoys advance contrasting arguments about the case, outside the chamber protestors demanded freedom and clemency for the Australian journalist. Facing a 175-year custodial sentence in the U.S. in what could be a CMU (a Communications Management Unit), Assange must struggle with the possibility of a future that could mean death – or even worse.

    The CMU, as we discuss in conversation with David, represents a carceral system many degrees more cruel than the Belmarsh Prison where he has languished for half a decade.

    In places like the Terre Haute, Indiana facility or Colorado’s Supermax, inmates typically enjoy nine hours of visiting time per month, and CMU prisoners are barred ‘from any physical contact with visiting friends and family, including babies, infants, and minor children.’

    However, Assange’s lawyers may have a compelling argument to work with in this respect, as Britain, despite Brexit, still adheres to the European Convention on Human Rights. A U.K. Court must still follow judgments of the European Court of Human Rights. Assange’s lawyers based their arguments on his current condition, and the probability of torture and death resulting from the extradition.

    Over the two days – with their client unable to attend due to physical weakness – Assange’s lawyers pushed back against the U.S. argument that Assange and Wikileaks committed harmful acts of espionage when they published huge tracts of confidential material, as America’s post-9/11 wars were raging across the Middle East.

    The publication of diplomatic cables revealed the casual corruption of many regimes, not only the U.S.. Videos like ‘Collateral Murder’ showed U.S. war crimes – revelations that were surely in the public interest. Indeed, the U.S. Espionage Act, with the severe punishments it entails, has never before been used to prosecute a journalist.

    The Court’s decision on whether to grant a final appeal hearing in this case is expected in the coming weeks. For David Langwallner, while he did entertain a number of options – including one whereby Assange might be publicly condemned but eventually released after informal, behind the scenes diplomacy – Assange’s fate, and the state of the world more broadly, looks increasingly dark.

    He argues that a ‘New Dark Age’ may be upon us, whereby authoritarian dictatorships and Western democracies alike are emboldened to fling their truth-telling critics into the oubliette with impunity.

    Citing the proposed ‘Hate Speech’ bill in Ireland as an example of creeping authoritarianism in the digital age, he condemned the clear hypocrisy:

    We’ve reached a world where a subversive is what you designate to be a subversive… Under the Hate Speech bill in Ireland, which is totally ludicrous in my view,  we are going to have the criminalization of offense. As long as you offend them. They can offend you by locking you up, but if you offend the establishment they’ll prosecute you… Also, with the notion of taking rigorous actions against hackers who may not have done anything criminal, it is the slippery slope to ‘pre-crime,’ and guilt by accusation.

    The interview began with a question about the prison where Assange is being held – His Majesty’s facilities at Belmarsh, a place with which David Langwallner has an interesting history. It was apt to start by discussing complex questions of fundamental rights and justice systems in democracies, and our ability to trust the behaviour of technocratic leaders in this digital age.

    The brutal treatment of an increasingly frail Julian Assange is diminishing any trust in the rule of law, natural justice and freedom of speech.

  • Lessons From the Great Depression (I)

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

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

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

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

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

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

    The New Deal

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

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

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

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

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

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

    Studs Terkel

    Hard Times

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

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

    And another describes a scene of acute desperation:

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

    Image (c) Daniele Idini

    Worse Still?

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

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

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

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

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

    Artistic Response

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

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

    Two crucial quotes from The Jungle are as follows:

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

    And

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

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

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

     

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

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

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

    It’s A Wonderful Life

    Austerity

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

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

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

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