(The Court of Chancery, London.)
I wrote this in 2019 and following the Carl Rittenhouse verdict it is apposite to publish this article. Earlier articles in this Blog have tracked the demise of the rule of law in the United States and its politicisation (Flynn's case); arbitrary treatment (6 Jan internees) and trial by leftist Mob Media.
Further, there has been the interpolation of social justice and thus Marxist nostrums- per-determination of guilt or liability owing to membership in an identity group or class and collective culpability arising from the oppressor v Oppressed paradigm, which does not and cannot interface with the rule of law based on individual rights. Critical race theory seems to loom behind the Judge Callinicos case.
Thomas Sowell has well addressed the obsession with justice as a sole social norm. Mr Myaorkis of the DHS recently said that people crossing the USA's southern border needed justice but this is at expense of the weighing of competing rights and persons that justice must involve. The obsession is conducive to greater injustice and social unfairness.
****
The Rule of
Law (RoL) is one of the important gears that mesh with several others to form
the machinery of Western civilisation.
Niall Ferguson in the West and the
Rest has called it one of “the Killer
Apps" accounting for the success of the West and why societies in the West that are sought after by people from elsewhere who wish to live in them. The RoL gives certain efficacy to the working
of our society in terms of commercial, political and social relations. It encompasses political and legal values
including human rights. Societies and
cultures without the RoL, or with a severely fractured one, have issues with corruption, lawlessness, and
clan-like violence; possessing arbitrary, relativistic and unpredictable legal
systems; the serious loss of justice for the individual ; and political issues in which there is little or no trust between governed and governors.
The RoL in
the West has also been eroded by indifference, ignorance and ineptitude. But
for some time it has been under siege from without by Neo-Marxism and its
derivative, Cultural Marxism. The nadir,
as we shall discuss shortly has been reached and evinced at Harvard in May this
year where mental ‘trauma’ and the “oppression” of feelings predominate over
and trump the RoL.
Increasingly
often Instances of the detaching or
casting off of the RoL in favour
of an ideological Neo Marxist religion have featured in the media. We turn to examine some of these for what
they disclose about the state of the RoL.
First, violence
is now seen and justified in
relativistic terms. Chris Cuomo, a CNN
anchor in defending ANTIFA violence in
August 2018 could unabashedly state: “
Fighting hate is right. And in a clash
[physical violence] between hate and
those who oppose it, those who oppose it are right...It is not about being right in the eyes of the law, but you also have
to know what’s wrong and right and
immoral, in a good and evil sense.” This
is akin to a religious fiat for violence: violence is given the ‘Green Light’
if your relativist group or tribal narrative defines a term like ‘hate’ and says
that it is wrong. First, this is an
indication of a loss of a socially
accepted standard. Secondly, what we are observing here is a tribal
self-defining James Comey like “higher calling”, something normally the
exclusive province of religion; and in
this instance with echoes of the
medieval ideas of the “Just War”.
Secondly, a similar
detachment was seen few months later in the abrogation of the
presumption of innocence in the nomination hearings for Justice Kavanaugh to
fill the vacant seat on the Supreme Court of the United States. The hearing’s process is worthy of a book in
itself. Robin Pogrebin and Kate Kelly are said to be writing one. Saliently, the Judge’s detractors were ready to cut
loose due process, fairness, the presumption of innocence, equality before the
law and the principles of the law of evidence. Emily Yoffe put the issue well in an article
in the Atlantic (3 October 2018) when
she said:
But when a woman, in
telling her story, makes an allegation [of sexual assault or rape] against a
specific man, a different set of obligations kick in.
Even as we must treat accusers
with seriousness and dignity, we must hear out the accused fairly and
respectfully, and recognise the potential lifetime consequences that such an
allegation can bring. If believing the
women is the beginning and the end of the search for truth, then we have left the realm of justice for
religion”
Thirdly, in
mid-May of this year, a further assault on the RoL was directed at Harvard Law
Professor Ronald S Sullivan, who is African American, and director of
the Harvard Criminal Justice Institute. He
and his wife (also a lecturer in the Harvard Law School) were also the first
African-Americans to become Harvard Deans of Faculty. He has come under assault by students after having been asked to be part
of Hollywood’s Harvey Weinstein’s legal team.
This was a role outside of his Harvard duties. Joanna Williams in Spiked (14 May 2019) had this to say:
“Unusually, Sullivan’s
‘trauma-inducing’ sins against the sensibilities of undergraduates did not
occur in the lecture theatre or indeed anywhere on campus. He neither
misgendered students nor told them to sort out their own choice of Halloween costume. No, his
crime has simply been to do his job.
Sullivan practices law; the knowledge and experience he gains from
being at the forefront of his profession are passed on to students fortunate
enough to be studying at Harvard’s elite law school. Over the course of an impressive career, he has
advised Barack Obama, represented the family of Michael Brown in their suit
against the city of Ferguson, Missouri, and overturned more than 6,000 wrongful
convictions. Only it is the very
business of the law, the need to defend people accused of crimes, the need to
assume defendants are innocent until proven guilty, that has proved too much
for students to stomach.
…The public denunciation of
Weinstein ignited the #MeToo movement. For some of Harvard’s students – and staff –
Sullivan’s decision to act in defence of Weinstein is not a legal duty and a professional responsibility, but a moral
outrage that needs to be stopped. They have started petitions, held
demonstrations and conducted rallies calling for his dismissal”
(Spiked, 14 May 2019)
The fundamental
legal principle involved was a defendant’s right to have legal counsel of his
or her choosing and to be represented at trial. Sullivan’s critics, having already decided
the defendant must be guilty, extend that guilt to anyone who agrees to defend
him in court. In New Zealand legal
counsel is acting for Benton Tarrant, just as Professor Sullivan was acting for a defendant
by assisting his legal team. In the present climate of opinion at Harvard, the
defence counsel at the Nuremburg Trials would not have stood a chance. That illustrates how ludicrous and pernicious
the present climate of opinion is for eh RoL.
Criminal law can be difficult and the rules of evidence need to be
properly understood. A defendant faces the power and deep pockets of
the State. Professor Sullivan had neither broken the law
nor acted in a reprehensible manner towards students. The professor could not be removed from his
Law Faculty job, so his role as a Faculty Dean was put in issue. The professor and his wife (the collateral
damage) were subsequently sacked, as Faculty Deans of Winthrop House, a hostel
for undergraduates, by the university's Dean, who had capitulated to students’
alleged trauma and mental health risk- all without any evidence no doubt- induced by the professor’s mere presence.
Joanna
Williams goes on to expand on the issue of mental trauma:
“Danukshi Mudannayake, the student who has led the campaigning,
argues that Sullivan’s decision to represent Weinstein is ‘not only upsetting, but deeply
trauma-inducing’, and it shows he ‘does not value the safety of the students he
lives with’. [H]e cannot simultaneously hold that role while still having a
charade of saying that he can actually protect the integrity of his students.’ Kacey E Gill, president of the Association of Black Harvard Women, said she was
relieved and happy to hear of Sullivan’s departure, but added ‘I wish that it hadn’t taken so long’ or
that it ‘required so many students to put their mental health, well being, and
potentially even their futures on the line in order to get that change to
occur’.
Students have come to accept a ludicrously wide definition of
trauma. There is not the slightest suggestion that Sullivan poses any danger
either to the students he comes into contact with or anyone else. Sullivan does
not stand accused of rape or sexual assault. The threat students think he poses is not physical, but mental.
Students have come to believe that ‘trauma’ occurs not as a result of something
catastrophic happening to them, nor even from having hateful words directed at
them, but from the mere presence of another person in their vicinity. Even
this understates their bizarrely elastic understanding of trauma. Harvard is
not offering refuge to Weinstein, the rapacious folk monster of our times, but
employing, in a professional capacity, his lawyer. Yet Sullivan’s presence is
considered by the students to be sufficient to create a ‘toxic climate’.
All of this begs the question:
where are the adults? “
(Spiked
14 May 2019)
It does
indeed. The RoL should not be set aside
because of an ill-defined student misperception of what trauma (not classified in DSM V) is, which is said to come about from an appointment unrelated to
the Dean’s role Winthrop House. An instance of purity in danger by
contamination of a human agent. If the
university authorities at Harvard do not comprehend the RoL then what hope is
there for other institutions? This not
the real world but again a trespass into
the realm of religion in the Cultural Marxist self-fulfilling
oppressor/oppressed dialectic of the Woke: the dialectic is the Truth and the
True Way. The Rule of Law is based on
human standards iterated and proven fit for use, over time. That was the approach, Daniel J Boorstein
tells us, of William Blackstone who abhorred Enlightenment idealist theory as
the basis of practical day to day law. The
Woke are divorced from the past and the world of practical experience having a
“Cloistered” tunnel vision of a future religious ideal. The RoL may not be perfect but it is far better
than a capricious judgment based on feelings,
idealistic predetermination based on
some ineffable “higher calling” and a misconceived fetish of trauma.
What is
shown by the university’s response, and by the student’s errant protest is a
woeful arrogant ignorance of a vital facet, of the underlying legal principles of a free and
civil society. These principles of the
RoL are then substituted by a visceral religious judgment by the irrelevant health concerns of students’ who are unrelated to, and have no proximity to the Professor’s defence counsel role. The students religious tremors, all derived
from the numinous and subjective mysterium tremendum of feeling, trumped
the RoL.
To put the
matter on a different footing, how could Harvey Weinstein , if sued in tort by the students, have foreseen
the students’ trauma? The question does
not bear a second glance. Williams adds
to the legal principles at stake:
“ Acquiescing
to students campaigning against Sullivan has consequences beyond the
university. It also calls into question our understanding of fundamental principles
of justice, most especially the idea that those accused are innocent until
proven guilty and so, in order for justice to be best served, require a
rigorous defence. Students crying trauma at Sullivan first assume Weinstein’s guilt, then mistake a defence of
Weinstein for a defence of his alleged crimes. They assume defending an alleged
rapist is a defence of rape. Again, where are the adults to tell them they
are wrong?
(Spiked
14 May 2019)
RoL principles
must prevail over the ignorance of the Neo Marxist/Cultural Marxist Woke: the
presumption of innocence, the right to a fair trial and the principle that
justice to be done needs to be seen to be done are fundamental, which was not
the case, to give a historical example, of the trial of the Regicides, or if you
prefer Geoffrey Robertson QC’s term, the Tyrannicides, of Charles the
First. Is lynching, hanging and
drawing and quartering before the University of Harvard’s Registry or Faculty of Law preferable? On this last point Joanna Williams rightly
concludes:
It is in the
interests of everyone to have justice done, and that means a trial with a
proper legal defence. Harvard’s decision comes just a day after Sullivan announced that he would be
leaving Weinstein’s defence team. Yet the better the defence, the
more secure a conviction. If due process cannot take place, then we risk
criminals going unpunished and the innocent being incarcerated. Cries of trauma
must not be allowed to undermine the legal system.
(Spiked 14 May 2019)
Yet nothing
is being done about this urgent issue by the very people who should be the most active.
The
guardians of the Rule of Law in the current freedom of speech issues presently
before us are silent. The New Zealand
Law Society last year censored in its publication Law Talk citations to Jordan
Peterson. The Feminist Judgments project, was given print space in Law Talk and
went by without hardly any notice from the profession despite its having considerable
RoL implications. The Feminist judgments
project in terms of the RoL may well be an oxymoron given feminism’s debt to
Neo-Marxism which underwrites identity politics and ideas of intersectionality. That is an article for another time. My own experience of approaching two senior
members of the NZLS Privacy and Human
Rights Committee on a Rule of Law matter was met with no reply. The abrogation of concern is woeful. Has the
Law Society turned to the new religion too with its Equity Charter and
become absorbed and oblivious in the new faith too?
Graham Hill
MA (Hons) Ll.B (Hons)
Nelson.
29 May 2019
