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The legacy of 9/11 has weakened liberal democracy, not strengthened it

In Events, Foreign Affairs, Law And Order on September 9, 2011 at 8:58 pm

James Bartholomeusz

Predictably, the tenth anniversary of the 9/11 attacks on New York City has provoked an orgy of reflection on the ‘war on terror’ decade. After ten years of war, we must ask ourselves, is the world a better place? Has the life of the average Western or Arabic person been improved enough to justify the actions taken? Neo-cons and liberal interventionists alike have adopted the Arab Spring as evidence that toppling dictators is beginning to catch on in the Middle East – failing to mention, obviously, that the two most high-profile autocrats were until last winter funded and supported by the West. Whilst the democratic revolutions of this year have been welcome, it is a tempting but treacherous line which is drawn between these uprisings and the supposed victories of the ‘war on terror’. In fact, liberal democracy is looking sicklier than perhaps at any time since the 1930s.

Across the Western world, the birthplace of liberalism, we have witnessed the steady erosion of our rights and liberties. To take two British examples, detention without trial and stop-and-search legislation have undermined the fundamental concept of innocence until guilt is proven. Blair’s draconian 90-day proposal for the former was, thankfully, halted by a rebellion in his own party, whilst the additional powers afforded to police by the latter have been used disproportionately on the young and non-white, often with no regard for the potential Islamist credentials of the suspect. What is perhaps most striking about these developments has been that they have achieved cross-party consensus. After Bush and Blair, part of Obama and Cameron’s appeal was the prospect of democratic reinvigoration: progress has been almost non-existent, with Guantanamo Bay still open and Britain’s authoritarian state apparatus remaining intact.

Furthermore, in an age of multiculturalism, Islamophobia is more widespread and more acceptable than ever: Islam has been singled out as having ‘good’ and ‘bad’ parts, as if that made it unique amongst religions or ideologies. The renaissance enjoyed by the far-Right, though mostly to do with the effects of globalisation, cannot be divorced from the apparent tolerance of anti-Islamic views. The EDL in-particular is opposed specifically to Muslims, and yet it shares with the mainstream Western establishment the sense that there is something uniquely barbaric and murder-inducing about Islam. In a report last year by a former Scotland Yard counter-terrorism operative attributed hate crimes against Muslims to “a negative view of Muslims . . . acquired from either mainstream or extremist nationalist reports or commentaries in the media”, and even went as far to suggest that “Anti-Muslim crimes have not been afforded the same priority attention [that] government and police have invested in racist hate crimes”.

And let us not ignore the ostensibly ‘stabilising’ effects of Western intervention abroad. In Afghanistan, the civilian death toll from 2006 to 2010 is estimated at over 8,000, whilst 70% of southern Afghans think that the intervention has had a negative effect on the country. Iraqi civilian deaths have not been recorded, but estimates place the total at almost 1.5 million. As campaign organisations have consistently pointed out, torture has become commonplace treatment for those detained by NATO forces in war-zones. Extraordinary renditions – the illegal movement of humans against their will from one country of custody to another – have become the norm, as prisoners are passed from the Middle East to North America and back again. Meanwhile, profits of arms companies have soared to levels as-yet unseen, so that Afghanistan is now one of the most militarised areas of the planet: to give just one statistic, in the period 2008-10 the UK exported £32.5 million worth of arms to the country. And yet even by its own standards of murder, torture and profiteering, the West is failing. Having broken Iraq and tossed it aside, we are now in the middle of a protracted withdrawal from Afghanistan, and a compromise with the Taliban, once derided, is now looking increasingly likely.

Another unwanted effect in the Middle East of the ‘war on terror’ has been the loss of Western credibility at a time when local people sorely need support: the Arab Spring. The democratic revolutions in Tunisia, Egypt and now Libya were hailed by Western leaders as a fulfilment of the aim of the wars in Afghanistan and Iraq. Since February this year, a collective amnesia seems to have descended on the Western establishment, conviniently omitting from memory the West’s long and ongoing support for authoritarian regimes. The Arab people, however, are not likely to forget the scene of Blair embracing Gaddafi, or Hilary Clinton referring to Mubarak as “a close personal friend”. Neither are they likely to forgive the lack of serious reprimand towards Israel, despite it holding the illustrious position as the nation to have violated the highest number of UN Resolutions (along with the tacit assumption that centuries of Jewish oppression entitles successive Israeli governments to ignore Palestinian human rights). Perhaps the most egregious example of this duplicity was in Iraq, where NATO funded and armed Saddam Hussein throughout the 1980s whilst he was an asset against the USSR, and then bombed him in the 1990s and 2000s when his own expansionism began to threaten oil resources. There was no miraculous change in the Bathaist regime’s morality to merit this U-turn: the human rights of Iraqis did not enter the discussion at all until humanitarian aims became usefully (and accidentally) aligned with economic ones. It was pure hypocrisy.

By no means would all of us describe ourselves as ‘liberals’ – most Brits would probably opt for ‘conservative’ or ‘social democrat’ as a label – but we cannot escape the fact that the ground on which our political intuitions are built is that of liberal democracy. Few Westerners would refuse to pay at least lip service to the fundamental ideas of individual liberty, freedom from abuse and equality before the law. And yet, as a decade of war fought to protect our way of life draws to close, Western society looks less liberal and democratic than it did ten years ago. The legacy if 9/11 has given new credence to the old truth that, in war, opponents are often far more similar than either side would like to think.

This climbdown is liberal, not Conservative

In Events, Home Affairs, Ideology, Judicial Spotlight, Law And Order, Party politics, The Media on June 21, 2011 at 11:53 pm

David Weber

I respect Ken Clarke, as a politician and more importantly as a political thinker, but some of his reforms weren’t liberal, just as much as they weren’t Conservative. At the heart of the Legal Aid, Sentencing and Punishment of Offenders Bill was a scandal, one which should have been obvious even underneath the noise and fury that erupted over Clarke’s ill-informed comments about rape, but has still gone largely uncommented on, which is deeply troubling. I refer to the damage that would have been done, to a fundamental principle of justice, by the proposal to cut sentences by as much as 50% in return for an early guilty plea.

This is precisely the proposal which the Guardian, in a typical bout of sheer missing the point, described as “a sensible move to relieve the pressure on Britain’s creaking courts”. The latter may be true, but the policy can only be described as sensible from a cold, bureaucratic, and morally corrupt perspective, the perspective of those who care nothing for justice and everything for money above all else.

Has the Guardian considered the stigma which is already attached to being falsely accused of a crime — particularly the most serious and horrifying of crimes? Has it occurred to the sadly anonymous writer of its editorial that there are already numerous incentives for the accused to plead guilty, not out of honesty, but as a gamble for the sake of an easier future? It should have, for such nightmares are frequently reported, and even more frequent in real life. Not only does plea bargaining already exist, but it actually goes far too far. In reducing the cost of justice it perverts the cause of justice, bargaining away the right to a fair trial. “Innocent until proven guilty” becomes “do you want to risk being proven guilty?” Far from it being “sensible” to increase plea bargaining, it would actually be “sensible” to abolish or at least reduce it — at least from a perspective of moral sensibility.

One would hope that it is for these principled, and most definitely liberal reasons, that David Cameron et al have decided to abandon this “reform”. One has to be sceptical, particularly given Ken Clarke’s reputation for liberalism, and the association of the Liberal Democrats with his agenda for reform in the Ministry of Justice. I suspect that if No. 10 had been motivated solely by liberal principles, it would have held back from interfering with Clarke’s agenda due to a mistaken association of liberalism with the Liberal Democrats. Additional policies announced at the same time, such as a new mandatory prison sentence for certain knife crimes, are distinctly conservative in nature.

More likely is that a tipping point of unpopularity with Conservative backbenchers, and with certain parts of the general public, has been reached; and that the rewriting of Clarke’s bill is a conciliatory gesture in the aftermath of the rewriting of Andrew Langsley’s NHS bill. It is certainly true that the bill had numerous “Conservative” objections to it, not least because the halving of sentences in some cases could have led to very short sentences indeed, for very serious crimes. But this merely demonstrates that conservatism and liberalism are not always mutually exclusive, and that liberals should not be associated with a policy just because conservatives are opposed.

But despite Downing Street’s arguably cynical motivations, the u-turn on this bill is something Liberals should be thankful for, not morose. Liberal Democrats should put their party’s ego (sorry, ‘influence in government’) to one side for a moment, and actually consider if, were they not in government, they would be supportive of or horrified by this particular proposal. Then they should put that response in front of any regrets they might have about their influence in the coalition, and whether the prevailing direction is conservative or liberal, because at the end of the day, it is more important. Real lives, real injustices, are always more important.

Government is not a monopoly

In Ideology, Law And Order on October 1, 2010 at 4:23 pm

David Weber

Part of September’s* Law and Order season

I’ve been gently reminded by Stephen that I have yet to fulfil my promise, almost a month ago, of a second article setting out my philosophical ideas about Government in more detail. Having chewed this over, I grudgingly decided for that for once I should actually be as good as my word, and use some late night reflections to finish off the season with aplomb. (Stephen’s forthcoming article excepted.)

My first observation is that the common anarchist refrain that government is a monopoly is actually misplaced. True, that government is a monopoly on legitimate violence is technically accurate. But ask yourself this: if government did not exist, what violence would be ‘legitimate’ to begin with? The answer is none. Legitimate violence without a monopoly is a contradiction in terms, as it is only made ‘legitimate’, in a way distinct to bog standard violence, by law.

If law was not a monopoly, then, ideas of violence’s “legitimacy” would be entirely subjective. Hence no violence could have a claim to being truly legitimate. Even with the existence of sophisticated models of private law, I cannot see how this would fail to be the case.

So government is a monopoly on legitimate violence, but this in reality is fairly meaningless. What does carry meaning, and practical weight, is if government is a monopoly on violence. And this is patently not the case. Indeed, in common law and constitutional systems, such as the USA, there are often legal protections of the right to violent behaviour. Is this then a “monopoly on the protection of violent behaviour”? Government suddenly seems less terrifying and more fluffy.

Sarcasm aside, it should be clear that government is not a monopoly on violence but a competing form. For ultimately, from a perspective of applied violence, government only exists with the implicit support of its citizens. The relationship can be extreme (a tolitarian regime) or more balanced (a constitutionally limited government). But government still competes within a marketplace, no matter how big or distorting its presence.

This relationship with its people is important, as it strikes a powerful argument against the views of many libertarians and anarchists. I’ve been reading James Tooley’s The Beautiful Tree, and I’d like to cheekily cite it in support of my argument. In it, Tooley scrutinises the impact of the sudden transition to ‘free’ primary education in Kenya, and shows what happens when a government institutes sweeping change without bringing its citizens with it (or, indeed, having any understanding of their needs). But although his argument is against a policy of sudden intervention, the same argument can be applied against a sudden withdrawal of the state. Unless politicians bring people with them, then change itself can be a more dangerous policy than any particular political direction.

Our relationship with government is, in fact, notably absent from most modern libertarian and anarchist arguments. Government is often described as an alien force, imposed externally through no involvement of people present or past. This allows for its inevitable condemnation without the asking of awkward questions.

Yet if you scrutinise such an attitude for but a moment, it falls down like house of cards. This is because of two fundamental flaws with the idea of a society or market functioning without government:

1. Competition without success is meaningless; Competition with success is dangerous.

2. The historical prevalence of government in human society.

With regard to the first point, if competition gained no reward, then there would be no incentive to compete. Apart from this patently not being the case; it would prove fatal to any idea of a market economy. Incentive is vital to success. Without it development would be slow and sporadic, relying entirely upon serendipity. Yet success in the market economy provides the means for establishing one’s position — the establishment of power.

And humans seem to have an almost universal addiction to power. I never fail to find it amusing that the powerful arguments libertarians always marshal in favour of the legalisation of drugs are almost never applied to the legitimisation of violence.  Power is, in essence, a drug. Violence is one of its many symptoms. Illegalising it – even if abolishing government could achieve that end – would merely drive it underground. In the place of legitimate violence we would have illegitimate violence. Instead of an inefficient monopoly, we would have an efficient marketplace for violence. I am not convinced this would be for the better of humanity.

Surely if there is one place the inefficiency of government could theoretically do some good, it is in the application of violence? After all, government rarely ever does things as well as the private sector. And violence is one area where I am happy for this to be the case.

There is, of course, a serious point to my ironic citation of anarchist arguments. To come to my second point, which I believe is infinitely more powerful, as it relies on the citation of history rather than one person’s philosophy about human nature — the establishment of power has played a role in the structure of almost every society known to history. It exists in modern capitalism. It exists in all attempted forms of socialism. It existed in feudalism. It existed in ancient societies, and tribal structures. It has shown resilience, in fact, in every group structure with a moderate level of population density and interdependence. Most groupings of humans, even units as small as the family, have instituted some form of government**. Far from society not being the same thing as the state, there is a close and inseparable relationship between the two.

For this reason, it should be clear that if we learn anything from history, it is to pick our battles. Government is undefeatable and indestructible in today’s world because no human can defeat or destroy human nature. Therefore to attempt this would not only be pointless, but quite possibly counter-productive. Instead, what is surely necessary is to work out the best way of taking control of government and subjecting it to our accountability. And this is what philosophers, politicians, activists, and yes, the wealthy and successful, have been doing for centuries. It is not just the State, as I commonly love to argue, that is a check on the private; but the private which is also a check on the State. This separation of powers is essential to keeping power divided and distributed within society, and abolishing it would be disastrous.  Slowly but surely the race of history has been in the right direction, and this is why it is only a minority who want to return to the thinking of the past.

*Yes, I am aware that it’s October 1st
**Kudos to polarii for that sentence

The Social Contract

In Ideology, Law And Order on September 29, 2010 at 12:02 am

By polarii for The Daily Soapbox

Part of September’s Law and Order Series

From a young age, we are taught that breaking the law is wrong. This becomes a broad principle, and generally goes unchallenged from cradle to grave. We may break the occasional speed limit, or drive after we’ve had enough alcohol to push us just over the limit, or some other minor misdemeanour, but we broadly accept that undermining the spirit of a law is a wrong act. But some, the religious and those with deep-seated political convictions, chose to break the law, and claim to be acting morally when doing so. This to me invites further examination.

One of the most ancient arguments for obeying the law is found in Plato’s Crito. The main characters are Socrates, who has been condemned to death on an unreasonable charge, and his friend Crito, who has sufficient wealth to get him away from Athens, and so avoid the penalty. Despite the many practical arguments advanced by Crito (chiefly, who will look after your children?), Socrates recounts a dream he had, where the embodied laws of Athens dissuaded him from fleeing. They asked him if he had ever opposed the death penalty and had it changed, or, if he had not been able to have it changed, left for another country. Socrates replied that he had never objected to the law since he thought it to be just; consequently, the Laws argued, he ought to stay and fulfil the just conditions of the law. And so Socrates did.

This is the social contract model of law; namely, that we make our laws according to what our society perceives to be justice, and consequently, as members of our society, it is incumbent upon us to obey them. We are perfectly free to oppose the laws within our society, and to leave our society should we find our situation intolerable. This is a very neat model for describing most Western democracies and Ancient Greek city-states. It also allows us wiggle-room; we may argue that society does not perceive it unjust if we were to drive after having had 2 pints, but completely in control. While we may have broken the letter of the law, it is not against the spirit of the law, and society does not condemn us for it.

However, this model of law – very widely accepted – creates a tension within those who hold strongly to ideology. The religious (certainly in the Abrahamic faiths) argue that a set of instructions have been handed down from God, and these form a higher legal code, which they must prefer over society’s. Most of the time, this does not present much of a problem. Strict Jews observe Kosher requirements pertaining to food, and since there are very few laws about what one may eat, and Kosher does not require non-Jews to observe it, strict Jews observe Kosher satisfying their own and society’s law. Strict Catholics observe a law against contraceptive devices. There is no law requiring them to wear them, and so they don’t, and fulfill their obligations to religious and societal law.

However, there are some religious observances that grate against society. Within the last year, a Christian B&B owner lost a court appeal which arose because she refused to allow two practising homosexuals to share a single bedroom. Here, the Christian believed that there was some higher law that trumped the law of the state. Again, some Muslims, and even the Archbishop of Canterbury, have suggested that parts of Shari’a – the Islamic Law – be integrated alongside or as part of UK law. For some Muslims, the observance of this law is more important, and they would seek a framework within the state to enable that to happen. A similar solution currently exists for elements of Jewish Rabbinical Law.

This is also true for non-religious causes. A not insubstantial number of people with-held tax from the UK government because they opposed the Iraq war. These groups, for ideological or theological reasons, hold that to obey the law is wrong in the instance where it is trumped by a higher law – God, or International Law, or somesuch other thing.

Here, though, the law still operates on a social contract model, but with a different society. Augustine so eloquently argues that a Christian considers himself first a citizen of heaven, and then a citizen of his country. Consequently, he obeys the laws set by the Kingdom of Heaven above those set by the United Kingdom. Some objectors to the Iraq war considered themselves first citizens of the world, and so tried to enforce the judgement – as they perceived it – of international law. This is a conflict of communities, and this is perhaps why the British public react quite strongly against the idea of a separate legal system; if they don’t obey our laws, they don’t want to be part of our community.

This is why the Pope’s visit was greeted with hostility from some quarters. The Pope believes that women should not be in leadership, nor people who have homosexual intercourse, nor who use condoms. This jars against our equality legislation. What is actually going on here is a tension between a ‘Catholic’ community and a ‘British’ community, and some people find themselves in both. In fact, there is a tension between all communities (even ‘Scottish’ and ‘British’). Some, like the tension between ‘fundamentalist Islam’ and ‘Americanism’, are extremely pronounced, and others, like the tension between ‘French’ and ‘European’, are more muted. It is a tension that all, considering themselves at once to hold a theological or political view distinct from their nationhood, must deal with and come to some resolution.

What is further interesting here is that quintessentially ‘British’ things that occur point away from this social contract model of law. For example, in our courts, we swear on some holy book, pointing towards the fact that we do not believe the social contract is sufficiently binding. Our parliament offers prayers at the start of each day’s business, suggesting that they are not there to uphold a social contract with the people, but do something higher. We praise the acts of people such as Ghandi; people who broke the law – albeit in a non-violent manner – in order to force a certain set of circumstances. We accept the presence of Gerry Adams and Martin McGuiness in the Northern Ireland assembly, even though they allegedly advocated violence against the state of which they were citizens. It does not seem the UK has much faith in its social contract.

This is ultimately because, as is so often tritely noted by pro-immigration politicians, Britain has come into contact with a huge number of other social contracts in its history. A great number of varied communities have contributed to the British social contract. To the indigenous Celtic social contract, there are added Greek and Roman influences from the Roman Empire, and Germanic and Viking influences acquired during the dark ages. A fresh wave of Catholic influence swept in with the Norman Conquest, and a series of Protestant/Rationalist inspired influences were amalgamated in the English Civil War and Glorious Revolution. As the Empire expanded, immigrants from the colonies brought again different perspectives on the UK’s social contract, and other social contracts with which to compare it. Our social contract is a contract that has had almost every article amended, every clause scrutinised, and has been almost completely re-ordered. With all this change – which broadly improves the contract – it should come as no surprise that we point to a higher law in our rituals (after all this flux, it is clear that we have little idea about the ‘true’ law (assuming such a thing to exist)) yet in this modern age, become outraged when someone proposes a higher social contract than the one we have with the state (someone is trying to change this contract we’ve spent years putting together). It is this phenomenon that makes most revolutions in the Anglo-Saxon world ‘conservative revolutions’ such as the English Civil War, rather than ‘progressive revolutions’ – most all ‘progressive’ changes have come gradually without tumultuous upheaval.

Where does this leave civil disobedience? Paul exhorts Christians to do what is right (by God’s Law), and accept any punishment that comes from the earthly authorities for doing so. This shows a very advanced appreciation of the social contract. If the contract speaks of ‘not doing X, otherwise punishment Y’, and God insists that I do X, I can honour my divine contract and my social contract by doing X and receiving punishment Y. For Socrates, and for Jesus of Nazareth, this is exactly what they did, and punishment Y was death.

The big question unanswered here is what one ought to do if the laws cease to exist in the form of social contract, say, in a despotic regime. Ought one still to obey the laws, or overthrow the system? A complex response might be to say that a despot only keeps power with a certain implicit (possibly coerced) consent of the society, and so a rather forced social contract exists. If it is impossible to oppose or leave (two options that are abundantly open to us in the Western Democracies), then I suspect that a social contract does not exist, and all the arguments presented above are void. Ultimately, by their nature, social contracts are voluntary; they will not work if we will them not to work. This perhaps is a twee response to those facing persecution for their political or theological views, yet if history is a witness to anything, it is that social contracts can radically alter their composition.

I will briefly discuss whether a written constitution represents a social contract. It does, to an extent. There are lots of things that cannot be encapsulated within written documents, and so a constitution will never quite approach a social contract in the abstract form we have been discussing here. Undoubtedly it includes many elements of  a social contract, and is sometimes a useful framework for helping people engage with the idea of social contract. Interestingly though, few constitutions now, or even international laws, are contracts. If we look back to the earliest law codes – those of Hammurabi and Moses – they are written as contracts: between king and denizen; between God and covenant people. This is clearly an ancient hang up in our thinking – we still abstract law as basically a contract, but we have got so caught up in ourselves and our laws that we flounce about with big notions like ‘freedom’ and ‘equality’, when all that’s really happened is we have agreed as a society that these things should be in our contract.

Whether you accept that ‘freedom’ and ‘equality’ are just terms of a contract – that may be written in or out, and even defined, as it suits society – defines whether or not, like me, you think this whole contract nonsense is tripe.

You see, I don’t believe that ‘freedom’ or ‘equality’ or ‘what is right’ are relative terms, as the social contract model invites us to accept. This is partly because I hold a relatively rigid set of theological views, but, on the other hand, it does not strike me that truth and morality should alter from person to person, if they can be said to exist at all. Forgive me for sounding philosophical here, but the point is an important one, and should be coaxed out. If we say that our laws, and, for that matter, our social customs, are merely based on the consensus of society, we lose our ability to condemn what is wrong in the legal systems of other countries, such as the presumption of guilt, random executions, torture, and whatever else we may wish to add to that list.

The social contract model is a useful one, but it can lead to all sorts of unjustifiable and undesirable consequences if it is allowed free rein, independent of a non-relativistic morality. The social contract of some really primitive societies boils down to punishment for crimes being banishment or death; which I will be so bold as to say is immoral. Justice, the law, does depend on morality to some degree. For sure, a lot of customs, even some laws, such as what not to say before the watershed on TV, are entirely societal things. But for the most part, laws depend on some greater morality. This is why our parliamentarians pray, this is why we swear on our holy books in court; we have to underpin our social contract with a belief, however faint, in an objective morality, that somehow matters. After all, if it doesn’t, why do we become so tetchy about running religious legal systems in parallel to the state’s? Why do we refuse to acknowledge a marriage agreement held bewteen three or more people? In fact, why do anything? – other than that society has agreed it shall be so, and it may change its views on a whim.

We do not live merely under a social contract; or if we do, it is not desirable that we should realise this. It is much better, to my mind, to believe in morality and say it underpins our social contract. Otherwise, we can justify some truly atrocious things on the grounds of our social contract. Plenty of Germans had scope to leave Nazi Germany, or protest the Holocaust (it would likely have been effective; a Nazi campaign of forced euthanasing of disabled children was stopped due to public outcry), but they did not. If there is no morality propping up the social contract, we cannot fault Hitler for his actions. If we arrive at such a place, the outlook for humanity is grim indeed.

Thinking Outside the Jury Box

In Home Affairs, Judicial Spotlight, Law And Order on September 16, 2010 at 11:52 pm

By polarii for The Daily Soapbox

Part of September’s Law and Order Series

Jury trial is an old idea. Not as old as trial by judge, but still old. Its origins rest in Early Greek customs for complex cases; sometimes, both defendant and prosecutor would have grievance with each other, and would take the matter to the elders of the town for resolution. Each of the elders would give an opinion concerning the case, and that opinion which found favour with the people – and so by public pressure would find favour with both parties – was adopted. The elder who had given the most popular judgement was rewarded an often substantial fee for his mediating. But in short, here the origins of jury trial exist; the weight of the opinion of the people could force a judgement in legal cases.

A few hundred years later, in democratic Athens, the aristocratic or monarchic elders were removed, and the people spoke directly on verdicts. This was the beginning of jury trial proper. The Athenians grew democracy pretty much by accident, and its court system was no exception. Juries ranged in sizes from modern sizes to up to 500. Women, foreigners and slaves could not serve, and the jury’s opinion was easily swayed (and prosecutors exploited this) by things such as plays and the ‘general opinion.’ As jury trial has evolved in the West, we have ironed out some of the weaknesses of this system.

But that’s not to say that the Athenian system was not without strengths. It is often not noted that many of the Athenian jurors were old men. This served a dual purpose to Athens; older people were genuinely received in ancient Greece (and I don’t think this is unreasonable) to be wiser and more experienced in arriving at right judgements. However, since jurors were paid, it also served as a pension system for the elderly who were prepared to commit to sustaining their state. This is something that we might adapt in the UK. Perhaps there is room to prefer mentally competent OAPs on juries. We might extend this to mentally competent disabled people, who are otherwise unable to find work. This would have the additional advantage of producing a pool of experienced jurors, who would be able to give straighter judgements than a random selection of individuals. It does do away, to some extent, to trial with a jury of peers – but I would actually prefer the jury that tried me to be more experienced in adjudicating the law, rather than my peers, who are not always the most level-headed.

Another thing the Athenian courts allowed was the defence and prosecution to propose a sentence once convicted. This led to some very interesting situations, as the jury had to choose between the two. In the trial of Socrates, he suggested that his punishment should be to be fed by the city for the rest of his life. The prosecution suggested death. The jury voted for death; in fact, more jurors voted for his execution than his conviction. We could adapt this for the UK system, as, unlike the Athenians, we have professional judges. We could have the protagonists propose punishment, and then the judge moderate the two. This will allow the judge to consider the impact of the crime on the family – often do we decry the leniency of a murder sentence when the bereaved wife has three children and no job – and also the intentions of the defendant – the case of Paul Clarke, who was given a suspended sentence for handing in a gun that he found in the park. This presupposes the abolition of minimum sentences, and also that judges will be confident in their independence to move beyond the brackets of the punishments of the prosecution and defence. Otherwise, we essentially arrive at plea bargaining; the prosecution may ask for a guilty plea in return for suggesting a lenient punishment, thus lowering the upper bound of severity.

Very, very occasionally, the jury would ensure that a member with certain understanding or expertise served. This was because the jury acknowledged that they did not understand some elements of the case. This is something modern juries, and indeed judges, should also be able to do. In complex medical trials, expert witnesses can bandy about statistics furiously, with the average juryman becoming increasingly confused, leaving room for a less certain confusion. If however, the judge provided an independent statistician or clinician for the jury, the understanding of medical cases, and other technical cases, would be greatly enhanced.

All these changes have some sort of precedent in ancient Athens, cradle of jury trial and democracy. They are all a bit ‘outside the box’, hence the title. But they’re all quite easy to implement – particularly the inclusion of statisticians – and not difficult to fund, particularly if we are cutting a load of data-generating quangos from which we can salvage the intelligent statisticians. Athenian jury trial wasn’t perfect, for sure, but that doesn’t mean that there is nothing useful left to retrieve from the founders of the institution, albeit the founders who didn’t expect it to last or work.

So No-one Got A Maximum Sentence. Get Over It.

In Constitutional Spotlight, Home Affairs, Judicial Spotlight, Law And Order on September 15, 2010 at 11:20 pm

By Stephen Wan

Part of September’s Law And Order Series

Every now and then, I read an article in a newspaper that really riles me up. What I particularly hate is when they use statistics in some really quite awful ways to draw certain conclusions which, quite frankly, I don’t share, but which they seem to presume everyone should. Usually its something from the Sun, or the Mirror, or some other tabloid with certain political prejudices that pamper to their readers. Unfortunately, this “statistic bashing” also seems to occasionally affect the ‘quality’ press, something that deeply worries me.

There are two articles in question, both of which are from The Daily Telegraph. The first is entitled “Revealed: Not A Single Burglar Gets Maximum Jail Sentence”. The second is called “Only Criminals Have Respect For Lenient Judges”. Guess what slant the Telegraph was going for.

For those of you who can’t guess from the titles, Ministry of Justice statistics have revealed that pretty much no-one has received any of the maximum jail sentences available for certain crimes. Whilst I have no idea where the idea of maximum jail sentences came from (perhaps someone can enlighten me, I know the Labour government introduced a lot of minimum sentences for certain crimes), it is apparently shocking, wrong, and shows how we’re weak on crime – and in particular, how bad our judicial system is for having such liberal and lenient judges on the bench.

I want to tackle these articles in several ways.

Firstly, I would like all to be reminded of the value of judicial independence. Believe it or not, we actually quite want an independent judiciary. That means we have judges that are not influenced or controlled by the government, or the media for that matter. Both Dixon and Davies in the first article imply heavily (without saying it), that the government should pretty much force the judges to give out harsher sentences; I would say that giving the government any sort of power over the judges is another step into the creation of an authoritarian government, which would be bad for all sorts of reasons (lack of proper governmental scrutiny, loss of checks and balances, positive virtues of the separation of powers). But worse of all is the Telegraph View, that “…ultimately, it is the people, not the judges, who are sovereign”. Ok, so I guess that means if the “people” wanted to go lynch a man who they thought might have committed a crime, but had no evidence for it, they can go do so because they’re “sovereign” and all that? Thankfully, there are judicial processes that prevent that, and sovereignty rests not in the people, but in the rights of the individual which the judiciary is sworn to protect against the over-mighty power of the majority.

Secondly, I would like to remind all that it is all very well looking at statistics, but that is not what judges do; instead, they look at things through a case by case basis in order to take in particular circumstances. Sometimes, this might mean the judges hand out excessive amounts of punishment, sometimes it might mean they hand out nothing more than a slap of the wrist. What is guaranteed (mostly) is that the judge will base you on your circumstances, not some quota put into law forcing you to serve a disproportionate amount of time. The alternative that the Telegraph et al seem to suggest is having some sort of quota ensuring a certain number of people receive the far end of the scale; maybe the worst 10% of criminals get the worst punishment possible every year? A very fine idea, unless you’re unlucky enough to be caught doing a minor theft towards the end of the year, whose punishment should be community service, but end up doing the 10 years reserved for drug dealers and repeat offending robbers. Besides, quotas for the number of people being caught and sentenced for certain crimes? As much as I hate to make the Association Fallacy, the parallels with Stalin in the 1930s are almost too good not to mention.

Thirdly, there is a horrible assumption here that prison works, which I thought in this day and age was gone alongside the belief that the Sun goes around the Earth. For some reason, the quote that “Prison is an expensive way of making bad people worse” comes to mind. There aren’t many Conservative politicians I like, but I respect Douglas Hurd for saying that, because he was so very right. Whilst prison serves a primary purpose of quarantine, that is, keeping people away from society so as not to commit more crimes i.e. for the general safety of the public, and this certainly works, the other aim of preventing re-offending by deterrence or rehabilitation clearly does not. And then we can ask the question, “Would society be safer by locking all the bad people up, or by getting the bad people to stop being bad before they get worse?”. If the former, feel free to build about a million more prison places (I hear Australia still has a few places). If the latter, maybe its time for newspapers like the Telegraph to stop making the simplistic assumption that prison is the best solution, and start thinking about giving a properly thought-out article that looks at several interpretations of the same data. Leave the shamelessly opinionated pieces to bloggers like us.

VATman, ACTA, and the Internet Activists

In Events, Foreign Affairs, Ideology, Law And Order, The Media on September 15, 2010 at 10:16 pm

…is the rather melodramatic title to our fifth podcast to date, episode 4 (the pilot remains numberless).

In this, Stephen Wan dons the VATman uniform in his quest to make VAT a fairer tax; and Chris Meier discourses on the subject of ACTA, and then goes on to give a heartwarming tale about “internet activists” from 4chan*.

As always, enjoy. And if you wish to join us in our podcasting revellry, simply give myself or Stephen Wan a shout, at dingdongalistic (at) gmail (d0t) com, or stephenwan91 (at) gmail (dot) com.

* Source: http://tech.blorge.com/Structure:%20/2010/09/03/4chan-makes-an-old-man-happy-but-dont-expect-the-fluffiness-to-continue-for-long/

From one extreme to another…

In Home Affairs, Ideology, Judicial Spotlight, Law And Order on September 14, 2010 at 11:46 pm

David Weber

Part of September’s Law and Order Series

I would like to take a brief ideological break at this juncture, and shift the focus of my critique of the anarchist position to look at the far more common presence of authoritarianism.

We could start with the death penalty. This is one of the frequently cited areas where politicians supposedly part ways with public opinion, although given that ‘evidence’ for this often takes the form of polls run in the wake of sensational crimes, I have my doubts. Nevertheless, it is certainly clear that public opinion on the subject is far less consensual than political opinion, where support is largely confined to the fringes.

Why is this, you may ask? I suspect that is an answer which has its roots in many factors, not least including the “grey wash” created by our electoral system. One I’d like to think has most influence is that the more informed you are on a subject, the less likely your opinion is to flip-flop.

And in most cases, opinion polling shows far more evidence of flip-flopping than it does anything meaningful. In the run up to the election, it was established fairly firmly that the public were in favour of spending cuts — unless it affected health, of course. Or education. Or pensions. And against tax rises. But we shouldn’t let those dastardly bankers get off lightly, better slap a couple of hundred extra taxes on them before you touch my darling child’s trust fund. And in favour of balanced budgeting. And in favour of the Tories’ line on immigration. But in favour of Labour’s policy.

Apart from illustrating my scepticism of the “great unwashed masses”, I hope this might demonstrate how the existence of a “political class” might not necessarily be a bad thing. Certainly, given that government is supposed to “amplify all of the factors that can cause immoral behaviour”, I see a surprising lack of evidence for this in the criminal justice system here, which has been slow to respond to public opinion.

But unfortunately not slow enough. Although the death penalty has no serious chance of being reintroduced, the public’s attitude towards crime in general has influenced the political sphere, and entirely too much so. The second term of the Blair government not only allowed for the first infringement to a criminal trial by jury for centuries, but according to the Director of Public Prosecutions of the time, Ken MacDonald, Blair himself suggested diluting the burden of proof for the most serious offences*. Blair was worried about the impatience of the “middle classes” at a criminal justice system which was perceived to be slow to deal with criminals.

And if you take the view that this is merely government perverting the substance of public opinion and not representing it, ask yourself this: why so little outrage? Why so little unease? A few academics write worried letters, and the country (or rather more accurately, the media) moves on, as if it was only of passing interest.

The simple fact is that “innocent until proven guilty” may sound like a principle that everyone believes in, but in reality it tends to be far less certain than many of us would like. Just witness the attitude towards “terror suspects”. Every time the government is unable to deport a terror suspect, many wax lyrical of the “outrageous” Human Rights Act “perverting” the course of justice. However, hardly any appear to think of mentally adding a question mark to their thoughts when they read “terror suspect”. Do they know the suspect is guilty? Are they certain he has committed a crime? If not, why are they willing for them to be treated however the State pleases?

Despite a veneer of outward belief in the principles of justice, many people think that the State can, more than ever before, be sure that someone has committed a crime. Who hasn’t heard the “DNA evidence” chestnut, used to justify such views? The very example of DNA evidence is another excellent illustration of areas where the public, not just the government, are generally out of touch with the facts. The reliability of DNA evidence is far more disputable than many realise or would like to admit. According to a recent New Scientist article, in an example case, different methods generated different probabilities of error, ranging from 1 in 3, to 1 in 95,000! But if you speak to many you would think it was crowning proof of the need for a death penality.

So criminal justice is perhaps the core of my belief in the State — not because I particularly endorse violence but because I wish to limit it. There is simply no evidence in this field that people would exercise power any less savagely privately than public servants do publicly. Quite the opposite, in fact.

* Taken from a seminar in the Compass Conference 2010, “Why has the left become so illiberal?”. Further details can be found here: http://www.designtoday.info/aziziye/?p=670

Scottish National (Partly) Justice

In America, Events, Foreign Affairs, Home Affairs, Judicial Spotlight, Law And Order, Party politics on September 12, 2010 at 11:24 pm

By polarii for The Daily Soapbox

Part of September’s Law and Order Series

Kenny MacAskill may not be an instantly recognisable name. Indeed, it may have continued forever in glorious obscurity had it not been attached to the Scottish Justice Secretary who released the equally splendidly named Abdel Basset al-Megrahi (whom some of my friends have mistaken for an Arabic liquorice allsort). Given that the SNP are unlikely to be returned at the next election, it seems reasonable to ask what this man’s significant contribution to law and order in Scotland has been.

For the benefit of those not familiar with Scotland, it does, in fact, have its own legal system. It is not dissimilar to other European systems, being most similar to the Irish, with Roman, Norse and Saxon influences. It runs alongside the English system, deferring to a UK system on only a few topics, such as extradition, while also accepting the European system, and ultimately, the ICJ. It is an historical oddity that Scotland preserves a distinct legal tradition; the Act of Union in 1701, and subsequently the Treaty of Union in 1707 was controversial enough then, and no-one has thought to go back and put the two now united kingdoms on the same legal footing. While this raises an interesting question about whether legal systems should run in parallel, and to what extent, we shall leave this to one side. Instead, we shall try to divine (since we Englanders never hear it explained) the judicial philosophy of the SNP.

The first act of Kenny MacAskill was to lift a ban on alcohol sales at rugby union games at Scotland’s main stadium, Murrayfield. This was a popular move, but ultimately had little effect on ‘Justice’ and its implementation in Scotland. After the abortive terror attacks on Glasgow airport, he made some remarks that the terrorists did not come from Scotland, as indeed they didn’t. He was progressing towards an inoffensive period in office.

However, he must have got somewhat bored. In this upcoming parliament, his department proposes two significant pieces of legislation. The first is to set a minimum price per unit of alcohol, due to an alarming amount of drunkenness in Scotland. The second is to allow those acquitted of serious crimes such as murder to be tried again should more evidence come to light. He also made the controversial decision over the Lockerbie bomber, for which he takes full responsibility.

The minimum price on alcohol could be seen as something of a reverse from his previous libertarianism at Murrayfield. The argument is that young people are drinking copious quantities of cheap beer and cider, purchased from supermarkets, then becoming drunk and disorderly. The counter-argument is that this measure – essentially a poll tax on alcohol – affects the poor much more greatly, and punishes the responsible drinker. It is interesting that MacAskill, who so vehemently opposed Thatcher’s poll tax, should introduce this. It takes the view that the state should actively remove those items that cause crime, even when the vast majority of people use it responsibly for the vast majority of the time. We might initially react that this is quite a pleasing move. After all, we all want to see less crime, and if the government can rake in some money to boot, what is wrong? Yet, how far should we extend this? Do we suggest a levy on kitchen knives, so often the weapon of choice in domestic assault, for instance? Do we add an additional tax on violent computer games, which some studies suggest lead to crime?

We can take this the other way – if alcohol is not restricted, and people use it irresponsibly, why do we restrict guns? I would say that alcohol and guns are essentially different; a gun is designed to cause harm, whereas alcohol is not. It may be a pragmatic measure to reduce drunken behaviour, but it lumps the innocent in with the guilty for no readily apparent reason. With guns, it is easy to see how an accidental discharge or opportunistic villain could cause great harm, and so there is a case for restricting them. But with alcohol, the SNP seem to be tarring all people with the same brush.

The second piece of interesting legislation introduces double jeopardy for serious crimes. This currently occurs in England, but not in Scotland, which does not admit any form of double jeopardy at present. With the application of new techniques, such as forensic science, police are discovering more data in ‘cold cases’, which lead them to the conclusions they had already drawn, but a jury did not uphold. It seems reasonable that the accused should be confronted with this new and additional evidence, and brought back to court. Yet there is the age-old principle that you can’t keep dragging a certain person before a court for the same reason again and again until the judge or jury, now thoroughly bored, hands down the desired verdict. However, this assumes malice on the part of the state and idiocy on the part of the jury. By and large, the state does not have it in for certain individuals, and juries are perfectly capable of understanding that if a person was found innocent before, a great deal more evidence needs to be presented for them to return a guilty verdict. If it were up to me, I would allow double jeopardy on all criminal trials for exactly this reason, allowing the transcripts (and a summary) of any relevant previous trials to be provided. I don’t think there would be that many takers without a significant new wad of evidence.

There is an oddity in the Scottish system that invites this. Scottish juries may return one of three verdicts: guilty, not guilty, and ‘no evidence’ – this latter being a way of a jury saying: ‘we think he did it, but the burden of proof has not been met by the prosecution.’ It seems incredible to me that there should be no double jeopardy with the return of such a verdict. The reform that is coming now is coming late, and is not coming in as full a form as the Scottish system needs. Incidentally, civil trials are more difficult, as a lot can be put down to interpretations of individual clauses or words. Civil law makes me very glad I’m not a lawyer; with cases such as libel, it can be terribly difficult to judge one way or another, and judges hand down different interpretations of the same law. Because it is not so clear-cut, I would not be so eager to have double jeopardy on civil cases.

Now, for Abdel Basset. MacAskill’s decision could have been motivated by any or all of three factors: genuine compassion on grounds of ill-health; lobbying from UK and corporate interests to improve relations with Libya; a need to avoid an embarrassing appeal, in which it might become apparent that al-Megrahi’s conviction was not as watertight as might be desired. I don’t buy Salmond’s line that the Scottish people are exceptionally compassionate – they’re about as compassionate as the next people group – but the medical reports do seem to suggest that al-Megrahi was on the point of dying when he left, and it was the compassionate thing to let him go. To me, it seems unlikely that BP exerted too much influence either, though this is what many in America would like to believe, to enhance the somewhat insipid narrative of the essential evil of BP. Libya has for a long time been positioning itself towards the West, since it can no longer guarantee support from an increasingly unpredictable Russia, nor that Islamic extremists will be happy to ignore Gaddafi’s crushing of Islamic-minded opponents. If Private Eye and some relatives of Lockerbie survivors are to be believed, al-Megrahi’s appeal may have had some weight behind it. I shan’t go into details, nor express an opinion here, but it seems that MacAskill has avoided a sticky and complex appeal that would likely have frayed US-UK relations, as al-Megrahi would be able to give a public airing to suggestions of incompetence of investigators.

It seems to me that MacAskill made a pragmatic decision here; he decided that it would be better to risk the flak of America claiming compassion rather than defending allegations of incompetence on the part of the UK-US team. It would have been even more unfortunate for him if al-Megrahi had died during appeal; he had already served 8 years while authorities delayed the appeal. It seems that, in this instance, MacAskill shied away from having the truth, whatever it looked like, out. The question of whether absolute truth is required for justice is again a tricky one, but it seems that al-Megrahi has essentially been granted a pardon (he is in Libya where no-one believes he is guilty) without actually being excused of the crime. A rather pragmatic and unsatisfactory solution.

This is what encapsulates much of the SNP’s approach to Justice in its four-year term. We can undoubtedly see that much of it is pragmatic, but when we take a look closer, we find that the thoughts behind it don’t quite fit with what we thought we’d find – a coherent philosophy concerning the nature and role of justice. Perhaps this arises from the SNP being a minority government, or perhaps it’s that the SNP is still a single issue party, and that single issue is not Justice. We’ll see who holds Holyrood come May 2011. My guess is Kenny MacAskill won’t feature in the cabinet, one way or another.

Criminally Rampant Bureaucracy – CRB checks

In Law And Order on September 6, 2010 at 10:08 pm

By polarii for The Daily Soapbox

Part of September’s Law and Order Series

Anyone who has worked around children, or adults with learning disabilities, or other vulnerable groups, will know of the Criminal Records Bureau check. Such a check needs to be performed in order to protect these groups in society whose age or conditions make them particularly vulnerable to being abused. They are obviously good things; anyone who wants to work around these vulnerable groups should reasonably expect to have their past scrutinised, and, if there are skeletons in the cupboard, to have their motives respectfully challenged. Probably many sad stories of abuse have never happened because of CRB checks. However, that doesn’t mean that they are perfect, and that they couldn’t do with some improvement.

As the system currently stands, a person needs to be CRB-checked for each job with a vulnerable group. For most people, this seems reasonable, as they will only work with one vulnerable group (say, children) in one situation (say, at a Scouts group). However, this system swiftly becomes bureaucratic. If I were to work, in my day job, with adults with learning disabilities, while, over the weekend, to help with a youth group, I would need two different CRB checks. More ridiculously, if I were to teach children part-time, teach adults with learning disabilities part-time, and assist in some other youth group outside my work, I would likely need three different CRB checks, each with different levels of disclosure – If, for example, I was doing one-on-one or one-on-few work as I taught, I would likely need ‘enhanced disclosure’, whereas, in running the youth group, I may only need normal disclosure. CRB checks cost £76 a pop, according to the Home Office website.

Infuriatingly, the CRB checks are only tied to one job – if I were to teach at School A, then move to School B in a different area, I well need to acquire another CRB, even if it was the same role requiring the same level of disclosure. To be fair, this exists to stop a person rolling up to a school and getting it to pay for their CRB, then toddling off to a different one, leaving the first school feeling a little cheated. But it is ridiculous.

Of course, some organisations use practical work-arounds. Most church youth groups, for instance, will allow a teacher to work for them without an additional CRB – after all, they have already been checked. Many groups also ensure that their non-CRB’d volunteers are coupled with CRB’d-volunteers or staff, which is thought to be sufficient to prevent any instances of abuse. But the need to possess several CRBs, often with different renewal dates, is potentially a headache for the good-hearted people who wish to help the most vulnerable groups in society.

An easy way to do this would be to allow CRBs to be transferable, like the driving license. It covers me not just for the car I drive, but for any car I might drive. CRBs could cover any such job like the one the person is already doing (say, teaching adults with learning disabilities). And, like the driving license, people could acquire additional clearances to work with other groups – it would be a better system if the volunteer, having already been cleared to work with vulnerable adults, could also be cleared to work with children on the same CRB. Furthermore, some would argue that renewing the CRB every 5 years is too frequent; it is extremely difficult to disguise a crime of abuse once it has gone through the courts, even without a CRB. But, this is only unnecessary if CRBs cannot be transferred between jobs. If CRBs can stretch a long geographical way, it becomes much easier for a paedophile to bury his antics in Cumbria if he is employed in Kent.

Perhaps of greater importance is whether the CRBs are actually a helpful tool in determining who it is appropriate to have around vulnerable groups or not. Under the terms of ‘enhanced disclosure’ every crime, from rape to shoplifting, is highlighted. This could mean that someone who was caught shoplifting during a drunken studenthood could find themselves very unemployable in certain careers. Even under normal disclosure, violent crimes, which might have been a product of growing up on an estate, are flagged. However, the purpose of CRB is not to condemn those who have been condemned, but to draw to the attention of those who take responsibility for care of vulnerable groups that a certain person may be unsuitable.

The most common example, under normal disclosure, is that of substance abuse. A conviction may be handed down around the age of 17 for use of a drug such as cannabis, which has little impact on the person’s suitability to do something around vulnerable groups 40 years later; the CRB discloses all criminal history of a certain severity. This has led to reformed criminals finding it very difficult to find a job in certain sectors, creating unemployment which contributes to an increased chance of re-offending. While it is clear that a serious offence such as rape must show up when considering who is suitable to work with these groups, it is not so clear that a 30 year old drug conviction must.

Ultimately however, despite the rush in which the CRB checks were implemented, it does leave the choice of whether to employ or accept the help of such a person down to individual employers. This to me seems to be the system’s greatest strength, as it only informs and doesn’t dictate. If it becomes clear that a former criminal has indeed reformed, then the employer can chose to employ, but the according risk of this decision lies with him. It is not yet legally clear whether waiving the results of a CRB, and then something horrible happening, leaves an employer or organisation liable. I suspect the decision becomes a lot easier if the person seeking to work among the vulnerable is honest about their criminal history – then, when the CRB confirms it, the employer or organiser would be much more inclined to trust that individual (though here, I speak out of ignorance; I am neither a former felon nor an employer).

The problem of CRBs does raise a few broader questions about whether ‘vetting’ in such a manner violates a person’s assumption of innocence until guilt is proven (very few organisations will employ until a CRB check is done), and how we view past crimes, and whether we believe criminality can be reformed, and if so, how radically. But I am not going to blog on these issues here. If you wish to contribute on this or on a related topic, please leave a comment in the box below. I shall be interested to hear of your views and experiences.