Tag: the

  • Poem: Hats On for the Happy

    Hats On for the Happy

    We couldn’t go in person
    since the car had grown moss inside.
    So we sat on Zoom in Birmingham,
    between a Dublin screen
    and one in the south of Chicago.

    We were silent, serious. Our separated frames fused
    to witness the in-person
    rejection of otherlessness. Two Canadians
    entered the gallery, laughing under starry pointed hats.
    Were they suggesting

    we far-flung wedding guests, fixed
    to the wall, watching and waiting, might have a party
    of our own? Dublin man
    fetched himself a sunhat. He handled
    his brim a lot. I left the screen and found my bonnet –

    orange felt, with a yellow
    flower, in a cupboard I never use.
    The Canadians waved me back to my chair.
    The Chicago Mississippi-
    Bankside lady pierced the screen

    with solemnity – who would not be solemn
    at the imminence of such
    vows – then disappeared behind
    clouds of simulated background.  She came back
    Queened, in a boat of black

    hat, that was tulled and beaded
    and pinned tight to her slowly unsombreing stare.
    Our four tiny head-high squares
    of life sparkled over the grey room. We
    made champagne-rich speeches about commitment

    to wear and be worn by, to cover
    and to be covered by. My partner was bare-
    headed. He never wears a hat, only a sun visor
    that shades his sight
    when the heat-sapped tryst of eye

    and sky is painful. The bride folded her veil back
    into a hood. The groom
    meditated on her draped hair
    and then on her naked face. Say it, whispered each
    brimmed and muted heart.

    Feature Image: Daniele Idini

  • 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.

  • Podcast: ‘Inside the Belly of the Beast: Reporting on U.S. Foreign Policy from Washington D.C.’ with guest Anya Parampil

    Listen to the second half on Apple Podcasts

    or

    Patreon

    As a journalist, Anya Parampil is unafraid of rattling the cage. She now writes for the Grayzone, founded by her husband Max Blumenthal in 2015, an online publication which aims to ‘break through any narrative of the day that is pushing the United States’ public in support of war.’ Previously she worked as a producer and broadcaster, then an anchor correspondent, for Russia Today (U.S.), from which she was fired, after refusing to accept restrictions on her reporting of U.S. foreign policy.

    In this podcast Anya likens writing about U.S. foreign policy from Washington D.C. to working inside ‘the belly of the beast’. Her work charts the policy machinations emanating from what she describes as a ‘deep state’ whose power, she argues, exceeds democratically elected politicians.

    Anya is the author of Corporate Coup – Venezuela and the End of US Empire (Or Books, New York, 2023), which dissects the motivations of the U.S. government, under the presidency of Donald Trump – directed in particular by figures such as John Bolton and Eliot Abrams – to sponsor a shadow government of Venezuela under Juan Guaído to challenge President Nicolás Maduro.

    As we approach another Presidential election, Anya sees little hope of a change in approach from the U.S. towards a country containing greater oil reserves than any other country on planet Earth. She maintains hope, however, that an alliance that includes isolationist supporters of Trump and progressive elements within the Democratic Party could in time tame the beast of this seemingly permanent government, and retains a faith that the First Amendment of the U.S. Constitution on free speech will allow her to continue her work.

    Episode Credits:

    Host: Frank Armstrong

    Music:

    Loafing Heroes – ​​https://theloafingheroes.bandcamp.com

    Produced by Massimiliano Galli – https://www.massimilianogalli.com

  • The Relevance of Jurisprudence to Law Part 3

    The remains of unquestionably the greatest intellect of the nineteenth century, Karl Marx, are buried in Highgate Cemetery in London. I recently tossed a red rose on the site. I doubt whether Judge Gerard Hogan, to whom I have addressed previous articles in this series, or any other legal positivist, would do likewise.

    While positivists often engage, though disagree, with rights-based -thinkers such as Ronald Dworkin, most exhibit a level of incomprehension, and often outright hostility towards certain forms of Radical Jurisprudence. No doubt the often unclearly expressed ideas of late Marxism, structuralism and post structuralism often are a factor, but that is only a partial excuse.

    Noam Chomsky – himself a linguistic positivist – once made a comment to the same effect on these authors, exempting Michel Foucault. He had developed a rational understanding of Foucault, but none for example of Derrida, who many including myself regard as largely intellectually fraudulent. Indeed, many Cambridge University philosophers objected to the conferring of an honorary degree on him, although I believe there is an element of truth to his babbling on relative truth or foresight.

    This plan of Jeremy Bentham’s panopticon prison was drawn by Willey Reveley in 1791.

    Panopticon

    It is, nonetheless, easy to see why, as far as my harsh assessment of post-structuralism Foucault is exempted. Foucault makes very relevant contributions to Jurisprudence and the practice of law.

    First, the transplantation of Jeremy Bentham’s idea of the panopticon – the all-seeing surveillance prison such as Kilmainham in Dublin – is in Foucault’s view a depiction of modern society, where a uniform doctrine is enforced in schools, law courts and hospitals, leading to blind conformity.

    Foucault presaged the age of Surveillance Capitalism and 24-hour data surveillance in Ireland, achieved in camera in the Quirke Case through the representations of the Minister for Justice Helen McEntee. Thus, we have a global panopticon wherein the value of privacy and freedom is thrown to the wolves.

    Now our judges aside from Hogan, most recently in the Dwyer Case restricting the privacy right, ignore ECHR and EU law. This undermines an ideal of liberty, at least as old as J.S. Mill in modern times, and in fact going back to the Greeks. So, Foucault’s insight is not about postmodernism. It translates into the destruction of rights under Article 3 of the Irish Constitution and 8 and 5 of the Convention.

    The second of Foucault’s contribution is his book on madness in the age of reason. The fundamental tenet is that the Enlightenment / Age of Reason involved the necessity, intellectually and then institutionally, to confine the unreasoned – those who were called mad – into asylums. Well, who is mad and who is clinically insane?

    The recent US Democrat convention, with the rather wonderful Mr Walz speaking from the heart on middle-class US conservatism about banning books and depriving choice stands against that Twitter conversation between Musk and Trump.

    The problem of reason and madness is also clear earlier in Ken Kesey’s masterpieces ‘One Flew Over The Cuckoo’s Nest’ (1962). What happens when the lunatics have taken over the asylum and a dissident voice says no? What of when the man or woman of reason, the pursuer of nuance and grey, the boy who cries wolf, the creature of the Enlightenment is locked up by those who are in fact self-interestedly insane.

    Foucault was apparently not on the UCD Jurisprudence syllabus in the late 1970s. A short journey to the Arts block to encounter Richard Kearney’s expertise in Continental Philosophy would have been beneficial.

    Marx and Engels in the printing house of the Neue Rheinische Zeitung. E. Capiro, 1895.

    The Crucial Figures

    The crucial figures of radical jurisprudence are not the structuralist, even Foucault, but the great Marxist theoreticians. For Marx law was a mirage, an ideology upholding the interests of the bourgeoisie, He considered it a mere superstructure determined by the economic base. Law, he observed, served the interests of the ruling class.

    Thus, in Marxist terms Hogan’s analysis of Kelsen is a form of intellectual masking or ideology justifying a form of state authoritarianism, which Marx would surely have interpreted precisely as the Populism of the petit bourgeoisie. No judicial deferral should be granted to the popular sovereignty of the mob.

    Marx though is not consistent about law. He argues that in the properly ordered Communist society there would be no need for laws, as we would spontaneously co-operate in our Communist Nirvana. But at times he concedes, inconsistently, that law is not always bad, and a close textual analysis of his views on property rights, and the freeing up of the alienation of estates to facilitate greater capital, shows that sometimes the superstructure can influence the base, and thus influence economic relations.

    So, what of Ireland controlled by a landlord class achieving nothing and facilitating careers going nowhere except to Microsoft and criminal banks, or the legal service class who act like vultures preying on the vulnerable on behalf of the powerful?

    The legal realist Oliver Wendell Holmes in his famous rebuke to unregulated free market economics in Lochner (1905) said the Fourth Amendment does not enact Mr Herbert Spencer’s social statics, and nor should the Irish Supreme Court enforce the interests of the commercial fat cats of Aran Square or elsewhere.

    Many Marxists, such as Lenin, saw the necessity for rules in a never-ending interregnum on the way to a Communist Utopia, which is never to be achieved. More pragmatically, the fundamental question for any judge which the Marxists pose is: whose interests do the rules serve?

    The Marxists influenced the critical legal studies movement, which to some extent educated me, adopting the radical indeterminacy thesis, an idea borrowed at one level from the legal realists. They argue that given the plasticity and malleability of rules, legal outcome can be very unpredictable and in fact subjective.

    There really is no such thing as a ‘plain fact’ or literal interpretation of almost any legal text. To avoid nihilism we should invoke moral principle as a corrective.

    Alienation

    The term alienation coined by Marx more generally to describe exploitation of workers serves as a warning as to how our government is destroying both the working and middle classes,

    Subsequent Marxist have been more approving of law. The legendary Antonio Gramsci, while imprisoned by Mussolini, adopted the phrase ‘hegemony’ to suggests as necessary a form of co-operation in law, politics and culture between the proletariat and the bourgeoisie. Now this coalition argument suggests law can be used as an instrument of social change. That depends on a desire to change for the good.

    One wonders whether the new, petite bourgeoisie-aligned Keir Starmer government in the U.K. should be a source of optimism or seen as a false dawn? More taxes on the wealthy, or further savage austerity for the poor?

    The Rule of Law is a central concept in jurisprudence, though hotly contested, and Marx aside, it has dominated the thinking of some of the main Marxists thinkers of recent vintage.

    In his codicil to Whigs and Hunters (1975), E.P. Thompson expressed a view on the Rule of Law as an unqualified good, which at times could check arbitrary authority. That of course assumes the Rule of Law exists in an ethical polity. It is not that evident in Ireland today as core principles are violated or improperly implemented.

    Thus, the independence of the judiciary is not obvious in Ireland, the use of in camera proceedings, akin to the promulgation of secret laws, is a cardinal violation of the notion that justice must be carried out in public. We also find an apparent tolerance of police corruption, the abandonment of substantive rather than formal equality, and indeed the abandonment of constitutional rights.

    Thompsons argument is premised on the idea that the judges are willing to enforce the rule of law, often with the effect of unsettling vested interests, as in the recent, painfully prolonged, Assange case. Irish judges are more likely to do the opposite.

    Jürgen Habermas

    Habermas

    Jürgen Habermas is, as ever, a crucial contemporary thinker, and, with all due respect to Gerard Hogan’s veneration of Kelsen, he is not just the world’s leading intellectual figure but the towering German intellect along with Thomas Mann and Kafka of the 20th century.

    Since Habermas abandoned the Frankfurt school, and thus post-structuralism, he has become, for over fifty years, one of the great proponents of the Rule of Law and legalism. He stresses the importance for judges not to subvert rights and parliamentary laws protecting civil liberties including the right to protest, viewing civil disobedience as central to revitalizing democracy.

    In contrast, the knee jerk reaction in Ireland and the UK has been to give more powers to the police to regulate dissent.

    Habermas’ other idea of communicative action, borrowed at one level incidentally from the arch positivist Austin, is the elaboration of the idea of ideal speech. His ideal for the vindication of speech rights is the eighteenth century salon. The ideas of communicative action in legal and judicial terms blends into the ideas audi alterum partem (‘listen to the other side’), and the obligation not to be either subjectively or objectively biased.

    Ideology, a term adopted by Marx, has been reinterpreted by Slavoj Žižek, drawing on another Marxist in Lacan, as ideological misidentification. In both instances, and applied to law, there is the sense that the bureaucratic class are engaged in false consciousness or deceptive ideas.

    Lon L. Fuller, who is not a Marxist but a natural lawyer, argued that once a legal system has not a tinsel of legality left, but enforces barbarism, it is no longer a legal system.

    To round the series off, a Marxist would fully understand the rage of Populism, but not necessarily approve of it. Of course pure Communist societies do not work, but nor does pure neo-liberalism. Indeed, Ireland is not working except for the landlord class.

    What does work legally ethically and morally is a social democratic Just Society advocated by the master John Rawls. What does work is Sweden, Denmark, Norway and much of northern Europe, where people are not in Marxist terms commodified and viewed as product, but in the moral Kantian sense things in themselves.

    John Rawls intellectually speaking would never have existed but for Karl Marx and a difficult thing for a legal positivist practitioner to realise is that Marx is in fact the greatest of all legal, political and economic philosophers. This is not to say he is entirely correct or a model to be followed in overall societal regulation, but a useful corrective to interpret laws and asses whose interest they serve and, if necessary, to bend rules to achieve socially just outcomes.

    Dworkin in fact argued that the South African judges during Apartheid should potentially have lied about the content of a racist law. I also agree or rather at the very least that they should have interpreted it to bring about socially just outcomes.

    Marxism at its best focuses on civil and in particular social and economic rights, and the judiciary responsibility to enforce them into the law and the Constitution, to the extent that this is consistent with the Rule of Law.

    Feature Image:Tomb of Karl Marx, East Highgate Cemetery, London.

     

  • Substituting Memory for History in the (Mis)information Age

    History, Stephen said, is a nightmare from which I am trying to awake.
    James Joyce, in ‘Nestor’, from Ulysses (1922)

    If there is any substitute for love, it is memory. To memorize, then, is to restore intimacy.
    Joseph Brodsky, in ‘Nadezhda Mandelstam (1899-1980) An Obituary’, from Less Than One: Selected Essays (1986)

    One of the more contentious trends in contemporary historiography, and philosophy of history, is the weird juxtaposing of memory and history, with the latter being privileged (perhaps unsurprisingly, by professional historians) as somehow superior, or more objective. This is evident, for example, in the work of Roy Foster (e.g. ‘Sorry is not enough’, London Independent, 17/07/1999), and of David Reiff (‘The cult of memory: when history does more harm than good’, The Guardian, 02/03/2016). This tendency may have partly originated in a reaction against the work of French historian Pierre Nora, who, in his efforts to define what constitutes a ‘true’ history, instigated this opposition between history and memory. Because outright political agitation and national imperatives dominate readings of history, he argued (see Realms of Memory (1996/1998), therefore there is no objective truth to be found there. However, he went further, adopting the nihilistic perspective that because memory, although preferable, is also selective, there is, effectively, no such thing as a recoverable past. In his somewhat opaque attempt to reconcile Marxist dialectics with an underpinning theology, ‘Theses on the Philosophy of History’ (1940), Walter Benjamin took a more measured, if equally audacious approach. In Thesis VI he wrote:

    To articulate the past historically does not mean to recognize it the way it really was’ (Ranke). It means to seize hold of a memory as it flashes up at a moment of danger. Historical materialism wishes to retain that image of the past which unexpectedly appears to man singled out by history at a moment of danger.

    But how exactly has memory come to be viewed as the poor relation of history? For what else is history, ultimately, but the product of memory? Or, at the very least, a consequence of the urge to memorialise? If only because Memory (Mnemosyne) is the mother of History (Clio), as she is of all the muses.

    This shift in status is compounded by the current fearmongering panic and paranoia about the threat to humanity and the humanities by the dreaded Artificial Intelligence. While AI is NOT nothing to worry about, it should be remembered that narratives of conflict in contested spaces have always been distorted by misinformation: it is known as ‘the fog of war’ or, more commonly, ‘propaganda’. All that has improved (or disimproved, because of the uses to which it is put) is the technology. As the great Irish essayist Hubert Butler wrote in ‘The Sub-Prefect Should Have Held His Tongue’:

    Speed of communication has increased, and we are expected to have strong feelings about an infinite series of remote events. But our powers of understanding and sympathy have not correspondingly increased. In an atmosphere of artificially heated emotionalism truth simply dissolves into expediency.

    That was in 1956. It was ever thus. Whatever the contemporary concerns about manipulation by A.I., data harvesting, algorithms and bots, it seems to me that digitally native under-30s are more than capable of dealing with the vagaries of the media with which they have grown up and are therefore adept at handling because of easy familiarity. When it comes to being duped online, the kids are savvy enough. It is the supposed adults in the room you have to fear for and keep an eye on.

    Perplexity as to the status of historiography as a somehow tainted literary representation or a scientific unbiased recounting is nothing new, with E. H. Carr’s What Is History? (1961) provoking fierce responses like that of Geoffrey Elton’s The Practice of History (1967), because of Carr’s relativism and his rejection of contingency as an important factor in historical analysis; that is, his almost proto-Baudrillardian notion of history as a partisan pursuit, a simulacrum written by the winners, or at least by those whose relative perspectives are skewed by vested interests or their own agendas. Elton, on the other hand, was a strong defender of traditional modi operandi and was appalled by postmodernism and multi-narrative histories, seeing the duty of historians as empirically gathering evidence and objectively analysing it.

    Thucydides Mosaic from Jerash, Jordan, Roman, 3rd century AD at the Pergamon Museum in Berlin.

    Herodotus vis-à-vis Thucydides

    The Carr/Elton debate can be seen as a more recent reenactment of a controversy which has reoccurred throughout (as it were) history, for example in relation to perceptions surrounding the virtues and drawbacks of Herodotus vis-à-vis Thucydides as historians of Ancient Greece, or of Suetonius in contrast to Tacitus of Ancient Rome, the methodology espoused by each echoing the practice of their predecessors. Thucydides and Tacitus may be more analytical and less anecdotal than Herodotus and Suetonius, but their histories are still based on interviews with participants and eye witnesses, and then drawing their own conclusions. How do we know if these interviewees were telling the truth, or if their memories were accurate or faulty? They could be deliberately lying, or accidentally misremembering. Plus, these informants are rarely named. Then there is the question of how much bias effects the reliability of Herodotus’ Histories and Tacitus’ Annals of Imperial Rome, given their respective Athenian and Roman sympathies, which they freely admit. Herodotus may have been accorded the accolade the ‘Father of History’ by Cicero, but at least as early as Plutarch’s pamphlet On The Malignity of Herodotus, he has also been known as the ‘Father of Lies’. When introducing his English translation of the Annals, Michael Grant even refers to Tacitus’ ‘mask of austere impartiality’. Meanwhile, much of Plutarch is pure entertaining hearsay. Furthermore, it is worth remembering that the Greek word Ιστορία (historia), from which our own specialised meaning is derived, meant ‘research’ or ‘inquiry’, rather than the definitive account, and is how Herodotus’ titled his work.

    So, while from an early twenty-first century perspective, Herodotus may seem more like a chronicler rather than an analyser, it is important to remember history’s origins in storytelling, and the influence of Homer’s Iliad and Odyssey – the stories from both of which were recited orally long before they were ever written down – on Herodotus’ mindset and methodology. Indeed, in an echo of those tales told around a campfire, which rhymed to facilitate ease of memorisation, it is believed that Herodotus would have given public readings from his Histories in Athens. For this reason, we may find it more understandable that he is nebulous about the differences between tradition and history, and that he did not always realise that eye witness accounts of the same event can vary. If literature is what is written, and Herodotus was writing history, we should not forget the debt both literature and history owe to the oral tradition.

    Of course, professional historians will argue that historiography has come a long way since antiquity, especially through the use of documentary evidence – inscriptions, manuscripts, treaties, newspaper and (latterly) television and radio reports, court records, archival material and archaeological discoveries, etc. But all of these (un)reliable sources are, finally, human products and personal artifacts, and thus subject to the fallibility of the species – certainly in their interpretation if not equally so in their inception. Just because something is written down does not make it true, or even representative. What pressures were being exerted on those doing the writing and signing, and what did they stand to lose or gain by their acts of scrivening – their Oaths of Allegiance and their Declarations of War? How far can we even rely on those who observed them, or who claim to have done so? Indeed, overreliance on these constituent parts privileges literacy over the oral tradition, one which Herodotus (influenced as he was by the Homeric epics) came out of and which historians have always relied upon – however unreliable it, in turn, may be, based as it is on folk memory. To favour the written over the spoken word does a great disservice to so-called ‘ordinary’ people, and smacks of a ‘made by great men’ approach to historiography. In this prejudice originates the elevation of History over Memory.

    History Faculty building on the Sidgewick Site of the University of Cambridge.

    Worthwhile Academic Pursuit

    None of the foregoing is intended to denigrate the study of History as a worthwhile academic pursuit. But one has only to trace the history of nationalist, revisionist and counter-revisionist narratives of past events on our own island over the preceding century or so to glean an inkling of the fluctuations of fashion in how history is done and disseminated, and to be aware that all readings of history, whatever the original sources or new evidence which come to light, are necessarily provisional. Plays by Brian Friel like Translations and Making History engage with how this history has been made, and remade. The presentation of the past, whether in memory or history (or historical memory), and the relation of both forms of presentation to the ideal of an unmediated past – that is, to an account of the past not distorted by the medium in which it is presented – is illusory. In this regard, every form of (re)presenting the past is a construction and an attempt to pass on something that is already forever lost.

    The concept of historiography as representation, which can easily shade into fiction, while being presented as factual truth, has correlatives in our own time. Herodotus’ treatment of the Persian invasions under Darius and Xerxes implies an underlying conflict between the absolutism of the East and the allegedly free institutions of the West, between Persian monarchy and Athenian democracy. The fact that we have no Persian record of the Persian Wars is down to the fact that Persia was an oral culture, and their version has been lost in the mists of time. In this case, written words would have proven useful. Herodotus’ contention that democracy was the cornerstone of Athenian superiority, and his praise of it as responsible for Athens’ pre-eminent position, might make us mindful of the justifications invoked for the 2003 invasion of Iraq by the United States and Britain. While bringing the benefits of democracy and freedom to a former dictatorship was the general goal of the invasion, the proximate goad was the supposed presence of weapons of mass destruction within the jurisdiction of that regime, a piece of ‘intelligence’ which was subsequently exposed as a faulty, if enabling, fiction. However, that the reason for going to war ultimately proved to be another instance of imaginative invention, every bit as much a representation (or spin) as elements of Herodotus’ Histories, did not bother the advocates of that invasion unduly after it was discovered, evidence that people are still as enthralled by mythic embroidery masquerading as objective fact as they ever were.

    To be sure, in Herodotus’ day it was the Persian Empire which was the aggressor, looking to colonise Greece, and the united city-states, including Athens, were merely defending themselves. The notable difference in our day is that it is the democrats who are doing the invading, with the sanctioning intention of toppling an absolute ruler, or eradicating terrorism. Again, how often today do we hear the sound bite, employed not only in defence of Israel’s right to defend itself, but also in support of its continued existence, that it is ‘the only democracy in the region’? Without too much of a stretch, it could be argued that Herodotus was indulging in an early version of what Edward Said subsequently termed, in the title of his masterly book which almost single-handedly founded postcolonial studies, Orientalism (1978). Having initiated the debate, Said developed it further in Culture and Imperialism (1993), sensitising the average western reader to this strange and sinister colonialism of culture. Sadly, these tropes will not cease, for obscurantism is not the sole prerogative of any epoch, or political grouping.

    Said’s originality was evident in the way he defined the subject of his book.  Orientalism is, first, an academic specialisation: a topic studied by archaeologists, historians, theologians and others in the West who are concerned with Middle Eastern and North African cultures. But Said added two further meanings to the term. Orientalism is also something more general, something that has shaped Western thought since the Greeks: namely, a way of dividing up the world between the West and the East. What appears to be a simple geographical fact is, says Said, actually an idea. The division of the world into these two parts is not a natural state of affairs, but an intellectual choice made by the West in order to define itself. The third meaning for Orientalism is more historically specific. Since the latter part of the eighteenth century, when European colonialism in the Middle East developed most fully, Orientalism has been a means of domination, a part of the colonial enterprise. Said argues that colonialism is not only about the physical acts of taking land, or of subjugating people, but is also about intellectual acts. The academic study of the Orient is unthinkable outside its colonial context and vice versa. So, rather than just an innocent scholarly topic, Orientalism is a general way of imagining the world’s divisions and a specific mechanism for furthering the colonial quest.

    Following Foucault, Said describes the Orient as a product of discourse; that is, not as something in the world that is discovered and analysed, but as something created by Western institutions and ideas. The definition of the Orient is a means of regulating it; the apparent truths discovered are in fact ideas circulated and accepted as part of Western colonial activity in the Middle East. The sense of the Orient as a discursive construct, in turn, enables Said to make one of his most important and striking arguments: what the West believed it had discovered about the East tells us little about the colonised cultures, but much about the coloniser’s. The texts and disciplines that comprise Orientalism – historical narratives like that of Herodotus, analyses of religion, travel writing, etc – reveal the values and preconceptions of the West, of the way people in Washington or Paris or London, or indeed fifth century Athens, wanted to see themselves, their fears and ambitions and prejudices. In particular, the image created of the East is used as a means of constructing one’s own identity. The picture of the East functions as a distorting mirror image, enabling the West to say that whatever they are, we are not. This emphasises the way in which a duality, often referred to as a dyad, is set up: West and East, us and them.

    In spite of the growing influence of Asian nations and the recent ‘Easternisation’ of international politics and trade, such exclusively Western- or Euro-centric readings still predominate our understanding of global history. This is a mindset which has been challenged, in what can be seen as a continuation of the Orientalism project, by Peter Frankopan, in his The Silk Roads: A New History of the World (2015), and The New Silk Roads: The Present and Future of the World (2018). One would do well also to have a look at Palestinian-American Rashid Khalidi’s books Palestinian Identity: The Construction of Modern National Consciousness (1997) and The Hundred Years’ War on Palestine (2017), in which he depicts Israel as a settler-colonial state, and argues that the modern history of Palestine can best be understood as ‘a colonial war against the indigenous population’.

    Bakhmut_during_the_battle_(2023-04-05).

    Proxy Wars

    Both of the ongoing international conflicts which dominate the news cycle in these times, the Russian invasion of Ukraine, and the Israeli-Hamas hostilities, are in truth complex proxy wars. Appeasement, or its more recent first cousin, conflict management, does not work. As Professor Yossi Mekelberg, of the venerable Chatham House Think Tank, has written:

    One conclusion from the collapse of the status quo between Israel and the Palestinians is that conflict management is a fallacy that has failed time and again. As a long-term instrument it at best buys time until the next round of violence begins. More than 75 years of conflict between Israel and the Palestinians have seen periodic outbreaks of hostilities and periodic efforts to bring peace based on a two-state solution. For most of this time the focus has been on managing the conflict. This exposes a lack of belief that a peace agreement laying to rest the differences between the two peoples can be reached. It also shows that the international collective security mechanism set up after the Second World War has failed in its mission to peacefully settle conflicts.This conflict does not need management, it needs its root causes to be addressed.

    The Northern Ireland Peace Process, which culminated in the Good Friday Agreement of 1998 (‘Sunningdale for slow learners’), provides some hope that reconciliation is possible in ‘lost cause’ situations, even if underlying tensions still persist. At least it put an end to what were euphemistically termed ‘The Troubles’, with their violence and loss of life. A United Ireland will happen sooner or later, and it will be an economic problem, much as the reunification of Germany was: Britain does not want to continue footing the bill for the statelet, and the Republic of Ireland is charry of taking it on. Meanwhile, most of those resident in the territory – from whatever side of the Unionist/Nationalist sectarian divide – are more preoccupied about having to pay for G.P. visits and prescriptions, should they find themselves in a New Republic.

    The Russian/Ukrainian stalemate might be resolved if Putinistas were to be purged of their nostalgia for the Russian Empire and the former reach of the U.S.S.R., and had their fears over N.A.T.O. encroachment addressed; and if Zelenskyyites were not so ardent in their pursuit of N.A.T.O. membership. The Russian invasion was not, as is routinely heard in Western governmental and media discourse, entirely ‘unprovoked’. As Professor Jeffrey D. Sachs of Colombia University has written:

    A far better approach for Russia might have been to step up diplomacy with Europe and with the non-Western world to explain and oppose U.S. militarism and unilateralism. In fact, the relentless U.S. push to expand NATO is widely opposed throughout the world, so Russian diplomacy rather than war would likely have been effective. […] The key to peace in Ukraine is through negotiations based on Ukraine’s neutrality and NATO non-enlargement.

    As for the seemingly intractable Israeli/Palestinian conflict, with its attendant apartheid, ethnic-cleansing and genocide on the part of the more powerful and well-resourced combatant: if Israel were suddenly left to fend for itself, without being massively underwritten by the U.S. and the E.U., it would soon have to start behaving itself, and acting in a civilised manner with its neighbours – just as a reduction in Iranian (bankrolled by Russia), Qatari and Yemeni support for Hamas would greatly alleviate tensions in the zone. Alas, this is not going to happen, given the North American imperative for a strategic foothold in the region and Zionist funding of their politicians through AIPAC, coupled with German Holocaust guilt, and the onus on oppositional sympathisers to provide some sort of counterforce. The only difference between the I.D.F.’s war crimes and those of Hamas is that the latter lacks the technology to do as much extensive damage, because the former enjoys such disproportionately huge investment, and impunity.

    History makes no mistakes because it has no purpose – that much Hubert Butler must have known by that time (1930s and 40s) if only because at Oxford he read the Greek and Roman classics. In any case, the dishonesty, self-deception and self-aggrandizement of those evoking history to pull the trigger didn’t escape him, not did their utter humanness. His knowledge of Russian…and of Serbo-Croatian,not to mention his French and his German, helped him along the line, no doubt, enormously. The detection of humanness in those whose words and deeds obscure it is, however, his own feat. On the other hand, this must have been easier for him, an Irishman, since schizophrenic uncertainty is humanness’ integral part.

    So wrote the great Nobel Prize-winning Russian poet Joseph Brodsky in ‘On Hubert Butler’ (1994). In what could be read as a corrective to the notion of this blind, ahistorical history, he also gave this insight in his essay on the work of the great Greek pre-Modernist poet, Constantine Cavafy, ‘Pendulum’s Song’ (1975): ‘The only instrument that a human being has at his disposal for coping with time is memory, and it is his unique, sensual historical memory that makes Cavafy so distinctive.’ However, if the school principal in the ‘Nestor’ episode of Joyce’s Ulysses, Mr. Deasy, is blatantly antisemitic in his exchanges with Stephen Dedalus, Brodsky, in another essay, ‘Flight from Byzantium’ (1985), is patently Islamophobic, displaying a smug ignorance and revulsion of ‘the East’. Indeed, so vitriolic is his repugnance, it is tempting to speculate that he is intentionally verging into parody:

    The delirium and horror of the East.  The dusty catastrophe of Asia. Green only on the banner of the Prophet.  Nothing grows here except moustaches. A black-eyed, overgrown-with-stubble-before-supper part of the world.  Bonfire embers doused with urine.  That smell! A mixture of foul tobacco and sweaty soap and the underthings wrapped around loins like another turban.  Racism?  But isn’t it only a form of misanthropy?  And that ubiquitous grit flying in your muzzle even in the city, poking the world out of your eyes – and yet one feels grateful even for that.  Ubiquitous concrete, with the texture of turd and the colour of an upturned grave.  Ah, all that nearsighted scum – Corbusier, Mondrian, Gropius – who mutilated the world more effectively than any Luftwaffe! Snobbery?  But it’s only a form of despair.  The local population in a state of total stupor whirling its time away in squalid snack bars, tilting its heads as in a namaz in reverse toward the television screen, where somebody is permanently beating somebody else up.  Or else they’re dealing out cards, whose jacks and nines are the sole accessible abstractions, the single means of concentration.  Misanthropy?  Despair?  Yet what else could be expected from one who has outlived the apotheosis of the linear principle? From a man who has nowhere to go back to?  From a great turdologist, sacrophage, and the possible author of Sadomachia?

    Brodsky even goes on to argue that: ‘By divorcing Byzantium, Western Christianity consigned the East to non-existence, and thus reduced its own notion of human negative potential to a considerable, perhaps even a perilous, degree.’ He also implies that: ‘…the anti-individualistic notion that human life is essentially nothing – i.e., the absence of the idea that human life is sacred, if only because each life is unique’, originates in the East, and that Western Christianity’s neglecting the experience supplied by Byzantium is the reason why college campus killers are classed as mentally ill, and presumably suicide bombers are labelled religious fanatics, as opposed to just plain evil. If supposedly enlightened classical humanists can harbour such sentiments, what hope can there be for reconciliation and mutual understanding?

    Interestingly, in ‘A Man Must Not Be Too Moslem’ (1953), Paul Bowles (while admittedly, no friend of Said – See Hisham Aidi, ‘So Why Did I Defend Paul Bowles?’, New York Review of Books, 20/12/2019) took entirely the opposite tack, and was so prescient that the ideas contained therein could have been ripped from today’s headlines. He wrote:

    Rationalizing words like ‘progress’, ‘modernization’, or ‘democracy’  mean nothing because, even if they are used sincerely, the imposition of such concepts by force from above cancels whatever value they otherwise have. There is little doubt that by having been made indifferent Moslems, the younger generation in Turkey has become more like our idea of what people living in the 20th century should be. The old helplessness in the face of mektoub (it is written) is gone, and in its place is a passionate belief in man’s ability to alter his destiny. That is the greatest step of all; once it has been made, anything, unfortunately, can happen.

    Mit Gewalt aus Bunkern hervorgeholt (‘Forcibly pulled out of bunkers’)

    Victims of Oppression go on to Oppress

    It can be argued that what Israel is doing in Gaza, and has done to the countries which surround it since its foundation, partakes of the classic pattern of abusive behaviour, on a national rather than an individual level. ‘Those to whom evil is done/Do evil in return’ as W. H. Auden had it in ‘September 1, 1939’. It is not unheard of that victims of oppression go on to oppress even more. The Jewish people, who were victims of a genocide perpetrated by the Nazis during the Second World War, are now themselves perpetrating a genocide against the Palestinian people. Perhaps Brodsky’s Jewish ancestry accounts for his self-advertised blindspot: he was merely conforming to stereotype. But the Children of Gaza by now far outnumber Butler’s ‘The Children of Drancy’ (1968/78) – with the added developmental difference that now the whole world is watching their slaughter. Yet the majority of Western leaders persist in standing staunchly by Israel and its policies, paying mere lip service to popular calls for a ceasefire while continuing to supply the weapons used for the razing of Gaza and the annihilation of its people. The last thing our planet needs in this day and age is the continued endorsement and maintenance of yet another theocratic ethno-state. We in Ireland should know this all too well. George Santayana’s famous aphorism is usually misquoted as ‘Those who do not learn from history are doomed to repeat it’, but in its original form read, ‘Those who cannot remember the past are condemned to repeat it.’ Unfortunately, no one learns any lessons from history, and remembers only what suits them, which is why it constantly repeats itself – first as tragedy and then as farce.

    Bad things undoubtedly follow when any ethnic or national or religious grouping (often a toxic concoction of all three) claim to have all the answers, and so start getting notions that they are The Master Race, or The Chosen People, or undertake Crusades against the Heathen or Jihad against the Infidel, or any convenient Evil Other. Note that I include here such secular religions as Fascism and Communism, which too frequently manifest as latter-day utopian belief systems which can be used to sponsor mass murder.

    All wars are, at root, economic. The geopolitical importance, the religion and the patriotism, the toppling of tyrants and establishing of democracy, are just the attendant window dressing. (Doubtless, all those anti-materialists who would prefer to forget, or only remember in an approved way, will here dismiss my arguments with the classic cheap insult of ‘vulgar Marxist’ – incidentally, a phrase Foster has appropriated from Benjamin’s Theses, although used there in an entirely different context. Apparently, there exist kosher, refined Marxists, and objectionable, vulgar Marxists. Thus, E. P. Thompson is deemed acceptable within the academy, despite the fact that he expressed sentiments such as, ‘so great has been the reaction in our time against Whig or Marxist interpretations of history, that some scholars have propagated a ridiculous reversal of historical roles: the persecuted are seen as forerunners of oppression, and the oppressors as victims of persecution’ (from The Making of the English Working Class (Penguin, 1978).) Yet all wars also end eventually, if only for longer or shorter periods, either through disengagement, conquest, de facto surrender, formal surrender or negotiated peace agreement. The means of disseminating misinformation may be more covert, efficient and persuasive, but what does not change is human nature. The apportioning of blame, who has right (or God) on their side, is in most conflicts a question of ‘How far back would you like to go?’ (which is, in turn, a slightly more grown-up rendering of the childish playground staple, ‘You started it’). Would that be the first incursion or the latest atrocity, or any point on the calendar in-between?

    At some point, the origin of the primordial offence recedes from history into myth – found in sacred books and the stories people tell. Sometimes it is even, conveniently, the Word of God (be it Yahweh or Allah). Arguably, memory is more historically accurate than lots of competing histories. Indeed, as has been demonstrated, many of those histories, official and unofficial alike, are based on recollections after the fact. Ultimately, history is nothing more or less than memory. Yet memory fades, unless it is recorded – however rigorously or haphazardly – in history. We currently stand as helpless as we ever were when The Sleep of Reason Produces Monsters, as Goya had it, and Voltaire’s admonition, ‘Whoever can make you believe absurdities can make you commit atrocities’ is still, sadly, applicable.

    Feature Image Otto Dix, Sturmtruppe geht unter Gas vor (“Stormtroopers Advance Under a Gas Attack”), 1924.

  • Musician of the Month: Finn Doherty

    Early Influences

    I tend to cite the same small handful of artists as my early influences, but I always find myself defining the difference between ‘influence’ and ‘inspiration.’ As a kid, I was really inspired by bands like Green Day, and I loved Arctic Monkeys, but that doesn’t necessarily reflect the music I make now.

    You could probably draw comparisons between some of my songwriting choices and Alex Turner’s, but these bands were probably more ‘inspirations’ as opposed to ‘influences.’ In many ways, it was more about wearing a leather jacket and slicking my hair back, or pairing black eyeliner with shirts and ties, than it was about the music.

    I grew up in North London, going to a lot of sessions with my parents, and I think trad music played a big part in the way I write melodies. Trad tunes are so much about repetitive phrasing and short motifs, which I think has ultimately translated into me writing music that is pretty hooky and catchy. Also, learning to play Irish music is a lot about learning tunes by ear, and I think that influenced the way I write, where melody often comes first and is generated really quickly.

    Current Practice

    I just released an EP called ‘if you’re bored of this city’. It’s a project about desire, obsession, and self-destruction. It’s kind of a personal exploration of my own identity, and about how relationships can become complicated by self-discovery.

    I had a very complex relationship with a friend a few years ago, and that was a big drive behind the narrative of this project. Musically, I looked to the songs and sounds that were soundtracking my life at the time of that experience, so it was a lot of dark pop music off the back of the first Billie Eilish album, and the production on the early Chance The Rapper projects, and the breakout of hyperpop.

    I was also really inspired by Son Lux’s soundtrack for ‘Everything Everywhere All at Once’, which I saw while I was mapping out a lot of the production for the EP. I think that had a big influence on the project, especially when I listen back to ‘Figure It Out’.

    I made a whole series of videos to accompany the project, which string each song together and use the music to soundtrack this night of partying and recklessness. The project tells the story of such a pivotal time in my life, and I wanted to retell that story to the fullest extent through this lens of the art I was into at the time.

    I think that’s why the videos are such an essential part of this EP. I’m really proud of what my friends and I managed to achieve with the visual side of this project, as it was all produced independently. It’s all available to watch for free on YouTube.

    Future Plans

    I’m really only just getting started. Right now, I’m focusing on ways to bring ‘if you’re bored of this city’ to more people, so I’m working on new shows and various other projects.

    I think it’s so important to experience music in face-to-face environments with other people, and I want my work to be a catalyst for those kinds of experiences. I love creating and engaging with content online, but live events are really where I thrive, and playing my songs live is the reason I do what I do.

    I think through playing more shows and being at more events post-pandemic, I’ve also found myself considering how the music I’m making will work in a live setting, and I’m really enjoying being out, and dancing, and just having a good time.

    I’m always working on new music, so it’s only a matter of time before the next project clicks into place in my mind and I start rolling out the next thing…

    Spotify: https://open.spotify.com/artist/2e3gFNiRxdNMh5TaVNwUHF?si=Ocqg4oaqRr6oGib1VRVMlQ

    Apple Music: https://music.apple.com/gb/artist/finn-doherty/1211574396

    YouTube: https://www.youtube.com/@finndoherty_/

    Instagram: https://www.instagram.com/finndoherty/

    ‘if you’re bored of this city’ EP: https://hypeddit.com/finndoherty/ifyoureboredofthiscity

    All Images Simon Jafrato

  • The Synaptic Twerking of Consciousness

    Life, as we find it, is too hard for us; it brings us too many pains, disappointments and impossible tasks. In order to bear it we cannot dispense with palliative measures… There are perhaps three such measures: powerful deflections, which cause us to make light of our misery; substitutive satisfactions, which diminish it; and intoxicating substances, which make us insensible to it. 
    Sigmund Freud from Civilisation and its Discontents (1930)

    One sees it traversing through the garrulous troughs on social media, particularly X (formerly known as Twitter), and in the comments section on YouTube. For example, ‘Dads car,’ and, ‘Mums SUV’, rather than ‘Dad’s car,’ or ‘Mum’s SUV.’

    It is time-consuming to learn how to punctuate and, thus, write correctly – adhering to the rules. Many find concentrating on this to be a chore. One comprehends, but… it is unadulterated, plaintive laziness.

    This is not ‘Grammar-Nazism’ as the meme-led, cultural clichéd term goes. This is about improving one’s writing, working harder, avoiding inertia and Mediocrity. Many prefer verbal communication and visual stimuli to sitting down to write – in a chair ‘old school’, the traditional way.

    An instantaneous gratification culture is alive and well. It descends into a podgy finger flicking on a dimly lit screen of an evening, absorbing those dopamine hits. Bobbing and weaving through the electronic morass. Jiving and twisting. The synaptic twerking of consciousness.

    We, as human beings, have become slovenly. Infantilised, as we pig out on junk food. Recumbent and ‘comfy’, as we wade through the internet’s offerings. Night after night.

    WALL-Es

    That scene in the Disney Pixar movie WALL-E with overweight patrons onboard the flying-in-space cruise ship on hover chairs flying around onboard, never walking, watching big screens that tell us when to eat and when to chill. These humans reflect what we have become: our seemingly ambiguous comfort in this obesity has been normalised.

    This is where the capitalist market has led us. There is profit in wanton laziness for those who make the products of greed readily available and easy to consume. They do not want to give up that income stream, and into the troughs come the snouts that munch, munch, and munch amidst the squeals.

    Shucking up gallons of fizzy drinks. Snuffling down handfuls of sweets and munching upon oil-laden fries. Scoffing on crisps, cakes, and biscuits to fill that sugar, fat, and salt desire, with little or no real nutritional value to help our brains and bodies function.

    This writer has been guilty of the above, overeating junk food. It leads to diabetes, heart disease, high cholesterol, and long-term health complications. It is a work in progress to avoid being bowled out at fifty, succumbing to gout, fat-infused valves, and diabetes.

    The idea of spending, as one young person informed me of late, ‘the evening/night scrolling through TikTok,’ is a sad indictment of where many have arrived. We delight in the displayed lives of others on the smartphone’s small screen. But is there anything to be learned from this narcissistic intrigue and fascination?

    This writer believes there is a correlation between poor diets and sedentary lifestyles. It is about accepting banality as the status quo and not desiring to work harder.

    Image: Maria Geller

    Mediocrity

    Mediocrity, as a movement, is parasitical. It moves onto a host, infects it with its form of banal idealism, and then moves on to the next victim, where it implements the same process. Replication. A bacillus of sorts.

    Mediocrity feeds into apathetic mindsets that have been taken over by the synaptic-feed outlay. It encompasses newspapers, mainstream media, and much of what is posted on the internet. It promotes and projects an idealistic self-image. Differences are highlighted and ultimately vilified – leading to racism – day in and day out.

    Terms such as ‘Shock’ and ‘Fury’ in online news articles feed into that visceral, tribe-on-alert, emotive response that keeps people in that Sartrean fear of ‘the Other’, compounding accepted, interjected biases.

    We are also constantly exposed to false standards of measurement. There is a multitude of inane, beige, loquacious, naive, idealistic, and elegiac minds all desiring the same thing – to be rich and famous.

    As Freud states in the opening paragraph of Civilisation and its Discontents: ‘It is impossible to escape the impression that people commonly use false standards of measurement – that they seek power, success, and wealth for themselves and admire them in others, and that they underestimate what is of true value in life.’

    Having a million social media followers does not generally bring financial success – it is illusory. These individuals, who are generally beneficiaries of marketing campaigns, have become false prophets. Mediocrity is a virus, burning through media outlets, claiming there is only one way.

    Because of its extensive reach and influence, Mediocrity is not readily noticed and thus rectified. It has become entrenched. The indomitable rise of Mediocrity coincides with a fall in proper adherence to punctuation and grammar rules.

    Titivillus, a demon said to introduce errors into the work of scribes, besets a scribe at his desk (14th century illustration),

    Punctuation in History

    As far back as 260 BCE (Before the Christian Era) in China symbols were being used as full stops on bamboo texts to indicate the end of a chapter. Around this time, Western scholars used scriptio continua, text with no separation between the words. The Greeks were using punctuation marks consisting of vertically arranged dots from the 5th century BC as an aid to oral delivery. After 200 BC, the Greeks used Aristophanes of Byzantium’s system (called théseis) of a single dot (punctus) to mark up speeches.

    In addition, the Greeks used the paragraphos (or gamma) to mark the beginning of sentences, marginal diples to mark quotations, and a koronis to indicate the end of major sections.

    To take two forms of punctuation, the comma and the semicolon. The comma is widely attributed to Aldus Manutius, a 15th-century Italian printer who used a mark now recognized as a comma to separate words. The word is derived from the Greek koptein (literally ‘to cut off’).

    Meanwhile, the semicolon is first attested to in Pietro Bembo’s book De Aetna (1496). In English it is most commonly used to link (in a single sentence) two independent clauses that are closely related in thought, such as when restating the preceding idea with a different expression.

    Among great exponents of punctuation, essayist Thomas Carlyle’s 1829 paper ‘Signs of the Times’ employs commas, semicolons, and dashes to break up his sentences and usher in and connect content. Similarly, Herman Melville’s divine usage of the semicolon in his seminal 1851 is evident throughout his almost biblical, classic Moby Dick.

    A semicolon can waver back and forth like the tail of a young fry salmon, or a whole raft of them can glitter and flip like sardines caught in a net. A semicolon can work like a wooden gate, allowing the woolly sheep of greater meaning to enter greener pastures, enhancing the experience of reading.

    I notice online that some scholars believe that semicolons are pretentious and overactive. So, is this writer just cribbing the numbskulls of opacity? Are we in a fugue state?  A place of unlimited bohemianism. Or am I mixing aphorisms?

    There are rustling hedgerows of commentators who draft in writers such as James Joyce, saying he ‘kept punctuation usage to a minimum.’ Maybe for Ulysses, but please do not allow yourself to be locked up in the one house of another writer’s style for justification and throw away the key. This is how a particular style becomes overgrown, with mossy banks, thorny thickets, and crabgrass obscuring the view.

    I recall a history lecture where the American lecturer said that commas in an academic essay amounted to a crime. This may be true of an academic paper which is dedicated towards a particular arguments that employs texts to make it, but not in a more literary style.

    Gertrude Stein seemed to take umbrage at ‘unwarranted’ punctuation with her grandstanding as a grammarian. She was the one who did the heavy lifting in terms of criticism – employing an academic register in her prose to disenfranchise good punctuation usage further. Stating: ‘I really do not know that anything has ever been more exciting than diagramming sentences.’

    If we embark upon this model, this mentality, we enter a Stygian process – one that slips off the banks and bobs on down to the underworld – into a void of immutable darkness and further self-perpetuating ignorance.

    You see punctuation can give writing its function. That is a litany of small symbols denoting how that particular nuanced form acts or functions. A sentence can be a sentence, but punctuation can jolt it into life. Some may say it is a question of style. I say it is a question of slovenliness in an age of electronic meandering.

    Feature Image: Roman Odintsov

  • 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.

  • Poem: ‘The Longest Day of the Year’

    THE LONGEST DAY OF THE YEAR

    Lucky gull chicks on a city roof
    take food from their parents and snuggle for warmth;
    for them, life has begun as well as it could.
    The flightless chick who fell from its nest above
    and is abandoned by its parents
    on a hostile gull family’s roof
    is shut in a large, bright, open room
    and soon learns that fear is a nail
    that fixes the whole being to a hard board.

    The lost chick can hear its family above
    and calls to them, looking up to a place
    it cannot reach and from which no helps comes;
    flight is weeks away. The enemy adults attack
    and the refugee huddles in a corner
    watching the privileged chicks eat well,
    all because the spots on its head
    are not in the correct pattern.
    Sometimes it cannot resist any longer
    and rushes forward to try and share the food,
    but is driven back by sharp, flashing beaks.

    The fallen one must somehow hang on,
    surviving on forgotten scraps
    until its feathers are ready
    and a new phase of life begins.
    The prisoner walks around and around,
    the will to live fighting the hunger,
    but it cannot escape for now, no matter what.
    Living in terror in this rooftop hell,
    every day is the longest day of the year.

    Feature Image: Magda Ehlers

     

  • The Relevance of Jurisprudence to Law Part 1

    This article is a response to Supreme Court Justice Gerard Hogan’s Annual Hale Lecture in Trinity College, Dublin in November 2023 on the on the topic of: ‘Grundnormen in UK and Irish Constitutional Law,’ and I thank him for sending it to me.

    The grundnormen is a creation of the legendary Austrian jurist Hans Kelsen. He is viewed by many as the greatest figure in Jurisprudence of the 20th Century. For his own part, in the mould of Justices Niall McCarthy, Adrian Hardiman and Declan Costello, Gerard Hogan is, in my view, our only current top class Irish judge, and a man for whom I have great respect.

    However, Hogan’s paper, although a brilliant piece of work, is profoundly unsettling not as such in what it is right about, but in terms of what it is wrong about, largely by omission or occlusion, i.e. what it does not say.

    He frankly concedes that the UCD lectures he received in jurisprudence failed to equip him with an understanding of the relevance of John Rawles or even The Natural Lawyer, John Finnis, nor does he reference radical jurisprudence, or indeed the éminence grise of 20th century legal philosophy, Ronald Dworkin. Thus, Hogan emerges as an arch positivist – as of course was Kelsen – a literalist and strict constructionist. It is fair to describe him as a black letter lawyer.

    Kelsen was the purest and most consistent of the positivists in emphasising the precise distinction between law and the domains of politics and morality, with one significant aberration on which more later. It is called a pure theory of law, Kelsen argued, because it only describes the law and attempts to eliminate from the object of this description everything that is not strictly law: Its aim is to free the science of law from alien elements. This is the methodological basis of the theory.

    Hans Kelsen 1881-1973.

    Kelsen: The Pure Theory of Law

    It is perhaps unsurprising that one of Hogan’s instructors in jurisprudence while in UCD, Professor John Kelly, in a superb posthumous A Short History of Legal Theory (Oxford University Press,1992), expresses equally bafflement with post-positivism. It is merely an afterthought in that book. Well that is UCD.

    Likewise, consider Adrian Hardiman’s apparent chastisement of John Rawls in his judgment in the seminal 1991 Sinnott case for viewing political philosophy as a branch of jurisprudence:

    [t]heorists of this view consider that they can provide a body of principles which can be interpreted and applied by courts, to the virtual exclusion or marginalisation of the political process…I[f] judges were to become involved in such an enterprise, designing the details of policy in individual cases or in general, and ranking some areas of policy in priority to others, they would step beyond their appointed role.

    Also, the reference to Lord Denning’s subtle dismissal of jurisprudence at the outset of Hogan’s paper is at one level a revelation of the standard wisdom of practising lawyers that only positivistic jurisprudence is relevant to court cases.

    When the U.K. Supreme Court overturned Boris Johnson attempt to suspend parliamentary scrutiny by proroguing it, Lord Pannick KC, the advocate in the case, gave a most revealing and rare interview after the event. In a sense Hogan’s argument is about where they stretched matters too far. I disagree.

    The problem with Hogan/Kelsen, and positivism more broadly, is, fundamentally, the cleavage between law and morality and/or law and politics, which are treated as if they are separate domains and not relevant to the subject of jurisprudence.

    Hogan also purports not to understand the Natural Lawyer. When it comes to John Finnis I agree. Finnis argues unconvincingly that the law should reflect self-evident goods such as marriage involving sexual congress, which has as its aim the production of children. In short sex for the sake of sex, not for conception, is not good, because it does not conform to the common good of friendship, which is intrinsic to heterosexual congress within marriage, or the good of parenthood.

    Jeremy Bentham like many positivists regarded natural law as ‘nonsense upon stilts;’ or as the other positivist John Austin suggested: if you invoke in a court room that an act is contrary to natural law a judge will indicate the inconclusiveness of your reasoning by hanging you. Many are also sceptical, as they ought to be, of inserting the values of The Iona Institute into the Irish Constitution.

    But that does not answer the question of morality or politics as an aspect of jurisprudence by a process of legitimate legal interpretation. This is the interpretation of texts in the sense of the grand style judge, mentioned by Karl Llewellyn, who defers not just to literalism, but also to policy and principle.

    Thus, Hogan effectively dismisses John Rawls and Ronald Dworkin, Marx’s Grundrisse and the legal realist perspective on policy from legal interpretation. Hogan also falsely invokes Oliver Wendell Holmes as a positivist. He was in fact the founder of legal realism – the forerunner to Llewellyn – who said, ‘The prophecies of what the courts mean in fact are what I mean by the law.’

    It is, however, brave of Hogan to attempt to define the mystical grundnorm. In Ireland it can be interpreted as the Constitution, based on popular sovereignty, or parliamentary sovereignty in the UK. But at its most abstract level the grundnorm is that which is responsible for the historically first constitution, in Kelsen’s own words.

    So, why does that create problems? First, and not least, the concept of original intent and the intentions of the Founding Fathers, is intrinsic to US jurisprudence, especially through the likes of Amy Coney Barrett. This involves a deference to long dead people or long dead intentions in different historical circumstances, an approach which Ronald Dworkin has rightly criticised.

    Kelsen, like indeed Hogan, was in an extracurricular sense far from apolitical. He was a Jewish intellectual and supporter of Weimar Germany. However, he believed, as Hogan does, in the essential goodness of the state. Although, in fairness Hogan has sagely warned about the denudation of due process by the Irish judiciary. In my opinion Kelsen was, and Hogan is, over-wedded to the view that states have duties to allow rights, but only on its conditional fiat. I cannot accept that at face value for it assumes the state apparatus in its present incarnation protects rights, which in the case of Ireland it clearly not the case.

    It assumes the Irish state has a tinsel of legality. Yet with our corrupt police force, dysfunctional justice department, populist leadership, and compliant judges we are entering a period of anarchy I fear.

    The Nuremberg Trials.

    Nuremberg Trials

    Curiously, Hogan does not mention Keisen’s famous moral detour, where he contorted positivism to justify the jurisdiction of the Nuremberg War Crimes Tribunal. Although Kelsen fundamentally disagreed with the legal basis for the assumption of authority and the way in which individual responsibility was not more differentiated, he defended the Nuremberg Trials. Contorting the principle of retroactivity, he argued the Nazis knew at the time what they were doing was immoral and not innocent. Thus, he created an exception to retroactivity, which is a cardinal violation of positivism, and indeed that amorphous notion, the Rule of Law; for which he has been heavily criticised by other positivists such as Joseph Raz.

    Hogan quotes another positivist, Jonathan Sumption at length in dissent at the prorogation of parliament case around the necessity to defer to parliament and the Rule of Law, or ‘the people’ as in Ireland. This should apply only if parliament is entitled to deference, which it is not in my view in Ireland, and only marginally so in the UK.

    Judicial review should protect against executive action or ouster clauses removing the jurisdiction of the courts, as in the UK. The Irish courts do not apply judicial review with rigour, and certainly not in a fashion similar to the mandatory orders in South African or India to enforce shelter, housing and health care rights. They also defer to the notional expertise of immigration tribunals and police decisions.

    Hogan has previously referenced the obliteration of due process in Ireland, and indeed the constitutional dispensation has provided scant support for those whose privacy rights have been violated.

    It is also notable that Hogan discusses the jurist, Carl Schmitt. Schmidt famously argued against emergency power clauses and secret laws, and yet our courts in camera last year approved of twenty-for-hour surveillance of the entire population, and we await the extension of the Special Criminal Courts. An unspecified emergency has been referred to by Minister Helen McEntee. Perhaps Hogan knows what this is.

    John Rawls 1921-2002.

    John Rawls

    In my view, the most important book of political philosophy since Karl Marx’s Grundrisse is John Rawls A Theory of Justice (Harvard University Press, 1971).

    The Rawlsian approach is to pose a question: where people are placed behind a veil of ignorance wherein they cannot know what their personal circumstances will be, how would they chose to order their society?

    He suggests that most people would choose the maximum number of liberties, as they would not enjoy living in a society where civil liberties are not adequately protected. Secondly, he argues that most would choose some measure of wealth edistribution in favour of the disadvantaged.

    If you were to be born a sub-Saharan Africa, or Ireland for that matter, you would surely want some measure of social protection. This principle is despised by neoliberals, and is central to the arguments in favour of housing rights, health care rights, food rights and a civilised society.

    Thirdly, Rawls argues for equality of opportunity and the elimination of self-advancement based on birth, family ties or social position.

    Rawls adds an additional idea, The Just Savings Principle, wherein we cannot denude the Earth for future generations. However, Amartya Sen, in The Idea of Justice (Harvard University Press, 2011) argues that Rawls fails to address the reality that the achievement of a Rawlsian society is resource dependent. Clearly, we need to build a just society based on our capacities and needs.

    Ireland is among the richest countries in Europe, yet successive governments have permitted rampant homelessness and moveable refugee shelters. Surely these ongoing violations require mandatory orders?

    Codicil

    As a codicil, Hogan references the Irish Constitution, and has written the definitive text on the subject, but at this stage all that wonderful analysis seems to amount to a Tristam Shandyesque cock-and-bull story. The problem is positivism: positivism in an age of draconian laws; positivism in a crypto-fascist age.

    Thus, when Hogan suggests popular sovereignty as a grundnorm, he should look squarely at the Gorgon’s Head and the rampant Populism that neoliberal policies have produced.

    Populism is not an acceptable juridical dispensation when all civility is lost, as in fact Sumption hitherto argued. The law becomes, as the jurist Eugen Ehrlich argued, in a criticism of Kelsen, a mask for brute force. We are right because we are powerful: macht geht vor recht as Bismarck put it.

    The fundamental questions are whether the gatekeepers, including the judges, are really aware of the social realities, and are they attempting to achieve a just and decent society. Gerard Hogan should bone up on Rawls, Dworkin, Legal Realism and even Marx’s Grundrisse, in my view a far more convincing abstract analysis of the role of law in society than Kelsen’s Grundnorm.