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Forward into the 14th century!

Such is the changing nature of that world and the ferocity of those forces, we need to adjust, to reclaim the system and thereby the street for the law-abiding majority.

That means not disrespecting civil liberties but re-assessing what respect for them means today and placing a far higher priority, in what is a conflict of rights, on the rights of those who keep the law rather than break it.

This is not the argument of the lynch mob or of people who are indifferent to convicting the innocent, it is simply a reasonable and rational response to a problem that is as much one of modernity as of liberty. But such a solution will not happen without a radical change in political and legal culture and that is the case I make today.

– Tony Blair MP, June 23 2006

As ever, the pretext is “modernity”… odd how that trope of Marxian theory crops up all the time. Things have changed, we are told. Rebalancing is imposed upon us by the sudden new wickedness of the world.

But read this in the context of other recent statements by Blair and his coterie and you can see that the PM is propounding a double fallacy in order to persuade us make a great leap backward. Ossa is the false dilemma between victim’s rights and suspects’ liberties; Pelion is the great mandarin standby, seeking ‘a balance’ – conceptualised as some mid-point between where we are now and the far extreme in the direction of the proposed policy. The Olympus the New Labour titans would storm is the fundamental western concept of trial. The function of trial in our systems, and the reason we have guarded the right to it over hundreds of years – in civil law systems as well as common law ones – is the finding of fact. It is the anti-authoritarian social institution, because it enshrines doubt at the heart of the process. We do not know the facts. We do not have to assume they can be known. Only when the facts have been established can punishment proceed. And it is an individualising social institution: punishment is focussed on the proven wrongdoer, and on the particular type of wrong.

Blair expressly objects to the latter. Neither trial nor punishment in this model serves a social strategy, and what social effects they have are by accretion. The ‘old-fashioned’ criminal justice system says what we may not do. It does not exhort us; it does not direct people in their lives; it is not a moral lesson.

But “victims’ justice”, and arbitrary power in the pursuit of suspects, on the other hand, are two sides of a different style of criminal justice altogether. There, prosecution is not procedural, an investigation. It is justified as a moral act by society as a whole. The function of the trial is to exhibit the moral outrage of society, to intimidate all sinners directly, as a lesson. So testing culpability matters less. The case is not autonomous. Trial and retribution are social goods, for which the suspect’s liberty can be sacrificed. In relation to which, in fact, guilt is rather beside the point.

All prosecutions in all systems are subject to confirmation bias. But from Canon Law and common law, the western finder of fact has a theoretical commitment to doubt that can derail the mere reproduction of the stories constructed by those in authority. Lose that, you lose everything.

We have plenty of examples in the contemporary world of summary, self-fulfilling, justice-as-social-reinforcement. The Saudi and the Soviet systems work(ed). They just don’t do what western trials are supposed to do.The trial is not to determine anything, it is a drama of reassurance. The bad are punished; their punishment is witness to their badness, to the rightness of the broader social order, and to the futility of challenging it.

Mr Blair would have us replace unsettling factual doubts with pacifying moral certainties. But he is quite right that it is not the argument of the lynch-mob. Lynch-mobs do not consider arguments; they act summarily. Not argument, but hue and cry.

23 comments to Forward into the 14th century!

  • Don’t you just love the front of the people who are responsible for a situation hold themselves up as the solution to the same situation.

    The two parties have created the problems we face and as long as so many sheeple keep acting as if the system is not broke even though it allows people like Tony Blair, David Blunkett and Michael Howard (just to name the worst) to negate civil society and trash ancient liberties, things will only get worse.

  • I actually fear the “such is the changing nature of the world” part – this is what is really justification for social engineering. “modernity” is too poor of an excuse, even if it is abused by Marxians.

    Sure lynching the innocent does not help fighting the jihadis. Sure O.L. Holmes’ words “the bill of rights is not a suicide pact” should not be read as a license for mob trials, because it’s misunderstanding that whacking someone, whoever, as opposed to whacking an actual perpetrator is not actually solving the problem.

    The danger is there, however: that obsessed with legalities we will be too crippled to fight the terrorists who unapologetically hold to the doctrine of subduing us, however remote their chances are for that, and on the other hand that pressured by the necessity to “do something!” we will abandon the fair trial standards.

    I’m with you that this standard of doubt as a tool for fact-finding as opposed to sentiment-based mob rule is exactly what has protected the liberty.

    Nevertheless, that dichotomy of “rights vs security” is false doesn’t change the fact that jihadis want to destroy it precisely because it works, because they feel losers to it because they truly are losers. And that we cannot stand dumb and just suffer it and take another 9/11 after another 7/7 and do it over and over again.

    You can’t intimidate jihadis, so it’s either us or them I fear. How to make them dead while not devolving to mob rule is exactly the challenge.

  • Albion, however I loath Blair and what he stands for, I have to grant him that going to war as an ally of US in Afghanistan and Iraq was precisely the best available option to solve this problem in the long term.

    I mean, it might be sad, but the people crave security above everything. Liberty might matter to you and me, but the mainstream will happily get rid of liberty if the tradeoff means they get security. We may roar and thunder about them deserving neither all day long, but it won’t change their thinking.

    If killing the jihadis helps to remove that threat to security and thus indirectly reduce the political support of the mainstream for tradeoff “we give up liberty for sake of security” – whether this tradeoff is real or imagined – this was helping protecting the liberties, not destroying them.

  • Pete

    Blair is like the poor teacher who tried to be nice to the class and belatedly decides to get tough when he loses control.

  • guy herbert

    Oh no he’s not. The point is he’s using the colouring of “getting tough” to do something entirely different.

    Much of the US got tough on crime in the 90s (in some ways I approve of, in others that I don’t). But it did so without much change in the substantive criminal law, and without destroying the Bill of Rights or the established rules to ensure fair trials.

  • Blair’s logic is flawed, as you indicate with the remarks about e.g. victims’ rights vs suspects’ liberties.

    The way Blair is framing the issue, it seems the protections of the accused against a wrongful arrest, charge and conviction stand in the way of protecting victims’ rights and we must find an appropriate balance between the two.

    Blair’s talk of “rebalancing the system” is merely cover for enhancing the power of the state, as pointed out by Baroness Helena Kennedy QC, in her book “Just Law” wrote:
    In the criminal courts the victim is a witness, a crucial and central witness for the state. So, when the government talks about rebalancing the system, it is really about rebalancing in favour of the state.That is the fraud in the government’s rhetoric, the sleight of hand. (Ch. 1, Page 26)

    This is quite an astute point from Kennedy, but as I wrote here, it is the accuser the state is representing, not necessarily the victim.

    It may be that the accuser is a victim of crime, but it may also be that the accused is the victim, i.e. of a false accusation, possibly by the victim of a real crime making a mistaken identification, possibly by someone who is simply out to get the accused.

    Blair’s rhetoric presupposes that there was a crime, there is a victim and the victim or their representative is making the accusation. These are presuppositions that should not contaminate the legal process — they are points that should be proven as part of the case to prove the guilt of the accused.

    Moreover, the rights Blair wishes to weaken are rights that protect everyone from false accusations and from abuses of state power. Blair is trying to make us believe that in order to protect us from criminals, we must remove or weaken our rights against the abuse of state power.

    He does not seem to realise that some of the people he is ostensibly targetting might actually exploit the proposed weakening of the rights of the accused to attack the law abiding majority Blair claims to be trying to defend.

  • guy

    He may well realise; he may well not care.

  • Guy,

    The greater context and the problem is that the people want SOMETHING done to provide them with security – and if dropping the fair standards of trials or reducing the necessary burden of proof has at least chance of providing that, they will go for it.

    You and James seem to interpret this problem in terms of criminality. Saudi Arabians with their reassurance of guilt and legalized persecution see the problem in terms of politics between groups and problems.

    Yes, from the standpoint of criminal law and fair standards what they do is barbarism.

    The problem, however, is wider: the terrorism cannot be reduced to a criminal problem. Neither is it reasonable, nor the people will go for it.

    If a viable solution other than dropping fair trial standards like presumption of innocence and the like will not be provided (the solution that would not require dropping the standards), the people will go for dropping the presumption of innocence.

  • Sure he doesn’t care, what can you expect after guy who said “e.g. “It is perhaps the biggest miscarriage of justice in today’s system when the guilty walk away unpunished”(1)”.

    You know, there was this truly evil commie, Dolores Ibarrules, who said smth very similar – “it is better to punish a hundred innocent than to let one guilty go”. Mob rule elevated to the social engineering principle.

    Blair clearly follows the same path, but that could be expected from the politician: politicians naturally fall to the lowest common denominator thinking in society. Popular, resounding rage yields more political points than tough thinking.

    The point is not if Blair gets reward for the policies he releases test baloons for, the point is if society will go for his deal. Blair is testing – how much he can get away with.

  • Iraq and Afghanistan have nothing to do with this. Breakdowns of social order are a consequence of legal and political policies designed to foster dependence and alienate people from ideas of personal responsibility.

    And we went through thirty years of Irish terrorism in the UK with less damage to our civil liberties than we have seen in the last five years.

  • Weakening fair trial procedures doesn’t help victims or anyone else. I don’t understand why Blair thinks (or why anyone should be impressed by him pretending to think) that an accretion of injustices is a positive “rebalancing”. If a man is murdered, that’s an injustice. If the right man is punished, the injustice continues, but there has been some redress and we have signalled our disapproval to potential murderers.

    If the wrong man is punished, there are two more injustices: firstly the injustice to the punished innocent and secondly the injustice of the unpunished guilty.

    How is that better? Why is this obvious nonsense suddenly credible? What are the British people thinking?

  • Guy,

    I wrote “He does not seem to realise…”. Like you, I suspect he does realise, and doesn’t care.


    You’re right that he’s seeing how much he can get away with. Consider what he’s already got away with. This tells you something about the governed, as well as the government.

    Blair is the consummate politician — he’s been able thus far to get the bulk of the laws he’s wanted put in place. I suspect we will soon see the spectacle of the police being given the power to issue on the spot ASBOs, and even more draconian terrorism legislation being pushed through parliament.

    I fear for where this will all end up.

  • permanent expat

    As a small aside….Boxer, in an earlier comment on this thread, said that the Jihadis were ‘losers’. From a spectator’s point of view I would say that they are doing rather well….and they are frightening the shit out of us. Unfortunately that doesn’t appear to be enough for us. Unless we deal with them as nastily (second nature to them) as they deal with us we shall be the losers…….with absolutely no chance of a replay.
    The main theme: I am neither jurist nor academic & cannot comment on the fine points. However, in the recent ‘music’ thread I mentioned that I saw it, today’s neanderthalic trash, as a mirror of our wretched society……which is, basically, the slant of this thread. God help us….we seem to be quite unable to do it ourselves….at any level.

  • Julian Morrison

    In this context it’s interesting to compare that the Conservatives are floating the idea of a renewed British (rather than EU) bill of rights, which would, amongst other things, hard-code the right to jury trial into the law, and which would be made exempt from the parliament act (meaning, the lords would have a true veto on any future Blairite mutilation).

    I think various folks on Samizdata underestimate Cameron’s lot. They aren’t Blairite. They’re something new. I’ve heard them described as “libertarian paternalist”. Moralism, but backstopped by a refusal to wield the law coercively.

  • Jacob

    Sorry to disagree.

    How many actual cases af abuse of power of the Blair government have ocured ?
    How many innocent people have been detained and arrested without justification ?
    How many were wrongfully convicted ?

    All your complaints are purely hypothetical !

    On the other hand – how many terrorists were released by your system of justice ? How many given asylum and protection form extradiction, thought they are suspected of terrorist acts in France and Spain ?

    Seems some people live in a theoretical, imaginary world, unrelated to the real one.
    I don’t know if Blair’s is the right medicine, but a problem surely exists.

  • Stuart

    Jacob: How many innocent people have been detained and arrested without justification ?
    Well me, for one……… after I called police to prevent the theft of a lawfully registered firearm. The would-be thief was immediately released while I was detained over 5 hours and had my home invaded by arrogant and obnoxious PC Plods on a fishing trip.

    It took two years for the complaint to stick and the 500 quid ‘compensation’ was a joke. Had I been a moslem terrorist suspect though, I’d have been looking forward to a cool half million or so………
    British justice is an oxymoron

  • Johnathan Pearce

    It is the anti-authoritarian social institution, because it enshrines doubt at the heart of the process.

    Excellent point, Guy. That is the problem: Blair does not admit that there are such things as doubts — as is often the case with intellectually insecure people such as he — so the idea of trials is for him inexplicable.

    Time and again I try to imagine that there is a benign aspect to Blair, but speeches like this proves that I would be naive to suppose this.

  • Jacob

    “British justice is an oxymoron”

    OK, so maybe it needs some reform ?

  • Andrew Kinsman

    IMHO the problems exist not so much at the criminal justice stage as at the policing stage – there is sufficient legislation already in place to deal with the problems which already exist. And I wonder to what extent piss-poor performance is deliberate . . . designed to allow further legislation to be put in place. And when all the pices are in place, the bolts can be tightened up and the machinery will begin to work efficiently.

  • Andrew Kinsman

    For example, when does one ever see the drunk and disorderly laws enforced properly?

  • Potential solution: impeachment of government ministers should be purely a matter for the House of Lords (as recently reformed).

    Best regards

  • Such is the changing nature of human society and the ferocity of those forces arrayed against it, we need to re-affirm. To re-affirm our simple desire to retain our system, through which we hold valuable the enjoyment of free life of each and every one of our law-abiding majority, and all those things they value.

    That means not disrespecting the needs of proper government (of the people by the people) but of re-asserting what respect for that government means today and placing a far higher priority, in what is a conflict of rights, on the rights of those who keep the law, the true and proper law, rather than break it.

    This is not the argument of the socialist do-gooding mob or of people who are indifferent to convicting the guilty; it is simply a reasonable and rational response to a problem that is as much one of right-thinking liberty as it is of blind splashing around in modernity. But such a solution will not happen without a radical re-adherence to political and legal culture, and its thinking, that we have been taught (and occasionally remember) over millennia.

    That is the case I make today.

    – Nigel Sedgwick, UK Citizen and Sentient Being