Miscellany (old)

I mean there is no justice. The rich win; the poor are powerless. We become tired of hearing people lie. And after a time we become dead, a little dead. We think of ourselves as victims -- and we become victims. We become weak; we doubt ourselves; we doubt our beliefs; we doubt our institutions; and we doubt the law.

But today you are the law. You are the law, not some book, not the lawyers, not a marble statue, or the trappings of the court. See, those are just symbols of our desire to be just. They are, in fact, a prayer, I mean a fervent and a frightened prayer.

In my religion, they say, "Act as if you had faith; faith will be given to you."

If we are to have faith in justice we need only to believe in ourselves and act with justice. See, I believe there is justice in our hearts.
- The Verdict (1982).

I don’t study law because I get excited about the nuanced meaning of words. I don’t do it for the thrill of saying “article forty point three point one forward slash two” and I don’t do it because I enjoy remembering latin phrases like volenti non fit injuria or audi alteram partem. All of these things are undoubtedly attractions but there is something more to law than these niche delights.

There is also Justice. Not a justice that appeals to a sectional interest but a justice whose chamber is the conscience.

Someone told me recently that she disliked doing law in College. She disliked it so much that she wanted to leave it. She saw the law as a source of harm and wrong.

While it is easy to decry the many instances of injustice it is even easier to grow disheartened and apathetic through these discoveries.

In law principles are often traded for expedient policy or patent prejudice . The law is replete with many wrongs, inconsistencies and incoherent assertions:-

David Norris’ unsuccessful challenge to statutes criminalising consensual sodomy that failed on grounds that were little more than homophobic nonsense. The denial of rights to unmarried fathers on the basis that their children were the products of either an “act of rape” or “casual commerce”.

People’s ordeals are shamelessly woven into an impersonal fabric of legal thought. The lives, the facts of the case and the final outcome are not overly important and are largely ignored by the student of law.

This is, apparently, the heartless world of the devil’s advocate and the ambulance chaser. It is supposedly devoid of morals and full of avaricious wigged men in league against the lay person.

However, as Robert F. Kennedy said, “[t]he future does not belong to those who are content with today, apathetic toward common problems and their fellow man alike, timid and fearful in the face of bold projects and new ideas. Rather, it will belong to those who can blend passion, reason and courage in a personal commitment to the great enterprises and ideals[…]”.

Injustice should be a call to metaphorical arms.(particular emphasis on the word metaphorical - I am not a man of violence). Injustice should get one flared up and indignant. There can be change. There is sometimes a glimmer of hope through the obfuscating clouds of injustice.

There are instances, rare though they may be, where an act of great courage and vision occurs. These instances must be recognised in spite of the culture of cynicism. This culture cannot be allowed to excuse apathy. Wrong or adversity is reason to double your efforts not to give up.

If law were an unruly child then I, along with other idealists, am its parent. I can see the potential in his or her hideous drawings attached to the fridge in the kitchen of society.

There was a time when the Oireachtas was unwilling to pass legislation permitting the use of contraceptives . So unpopular was Mary Robinson’s campaign among fellow politicians that when she introduced the first bill proposing to liberalise the law on contraception into the senate, no other member would agree to ‘second’ the initiative. It could not even be discussed.

Outdated social mores were allowed to prevent people from using contraceptives. This was one of those great acts of courage and vision .The court was unwilling to tolerate such a spectacle of governmental oppression of the individual anymore. The court decided to recognise a right to privacy not enumerated in the Constitution and from then on families were allowed to use contraception. In a landmark decision the court bravely decided that it was going to stand up for the individual.

The court decided to do what was right. There comes a time when you have to see that moral dilemmas are not confined to Hollywood films. Sometimes the court has to stick it to Oireachtas. Protecting individuals and their rights is sometimes too important to be left solely to the horse trading world of politics in a law making assembly.


Democracy is not just about crude majoritarianism. As Jack Balkin says, it is about “more than just a matter of letting majorities have their way, or, more correct, it is more than a matter of letting elites elected by majorities have their way. It is also a theory about the proper organization of society and the proper mode of social relations. Democracy is premised on the establishment and preservation of a certain type of culture, a democratic culture.”

The power of an eloquent dissent or the questioning of an outdated custom - Justice, Courage and Vision -these are powerful notions that are not easy to dismiss. It scares a cynic to think that these things might exist and that they may be worth fighting for. Justice may not always be apparent but it does exist. That precious rare gem.

Even in the face of a world full of littleness, corruption and cynicism, sometimes the courts are actually willing to “second -guess” the legislature. Sometimes the court is unwilling to let the Constitution be treated as mere headlines to the Oireachtas. Great things do happen. Great things worth toiling for.

Law students may have relatively few hours of lectures a week, feel the need to use big words (cognisable, incumbent, syllogism, apposite and axiomatic) and gesticulate in wild excitement when explaining the merits of a Holmes or Brandeis dissent. We have our foibles, but to make broad generalisations about the entire realm of law is to carry on the very same ignorance that we wish to condemn in the law. Law is representative of people generally. There are those who wish to do good, there are those who do bad and there are those who are indifferent.

It may be that things are fated to always be the same horribly cruel and unjust world but that is not the world I am willing to settle for. If I don’t find the Justice I seek when I go to practise at the bar then I must be the change I wish to see in the world . There is still room for the heroism and conviction of a Sidney Lumet film like The Verdict, Serpico or 12 Angry men.

The beauty of a film such as the Verdict is that it brings great dramatic tension to bear on the activities of a lawyer who, in the first instance, is simply trying to earn a living. At the start of the film he is minded to take the easy route in a health compensation case. But as he connects with the deeper morality of the issues involved he changes his tack and argues the case in court at great personal risk.

It’s easy to imagine that such dramatic moments are confined to Hollywood films but I feel that there’s a need for us to think in dramatic terms about the law and its potential for positive change in society.

Robert F Kennedy said that “[i]t is when expectation replaces submission, when despair is touched with the awareness of possibility, that the forces of human desire and the passion for justice are unloosed.”

Being yourself (old)





In the film Amadeus, directed by Miloš Forman, Antonio Salieri, the Court Composer,
is depicted as a man driven mad by jealousy. He deeply envies the talents of Wolfgang Amadeus Mozart, the musical genius. He constantly measures himself up against Mozart.

The film sees him transition from being a man with belief in his success and talent to a desperate shell of a man consumed by envy and guilt.

Salieri’s madness throughout the film Amadeus reminds us of how unhealthy it is to be constantly comparing ourselves to others, depending on the approval of others or wasting massive swathes of time on maintaining an image to present to others.

In society constant focus is given to what we are doing wrong and never to what we are doing right. Money and position become the ends in themselves rather than the happiness they should entail. Life becomes one unrelenting pursuit of someone else’s signifiers of success.

We are bombarded with images of what we are meant to look like; what is normal. There’s always someone faster, stronger, sexier and smarter than us. We want to be these people.
We live our lives holding out for some perennially distant version of ourselves. Some perfection that will supposedly manifest itself at some time in the future.

When our whole lives are spent comparing ourselves to others, like Salieri, we never evolve.
Life becomes an empty role play. There can be a sense of just going through the motions. What does the big house, flashy car or good job actually mean to you independent of other’s perceptions?

What is needed is for us to be more accepting of ourselves, as we are, rather than living somewhere else or for someone else . Living in the moment where we could begin take possession of our lives and follow our passion.

Patrick Stewart, the extraordinary actor, for example, skipped his 11-plus and instead wandered through the woods, for the duration of his exam, as a youth. John Major, ex-prime minister of Britain, once failed to get a position as a bus conductor. Both of them didn’t follow a predetermined path and yet they were recognised for who they were.

We are lead to believe that if we don’t get it right the first time we won’t make it. If people could only be true to themselves they would be more successful and much happier. It is this culture of inadequacy and demoralising and aggressive comparison that keeps us back not our perceived lack of qualities.

Contrary to this idea that people are irredeemable failures if they don’t follow the beaten track, even a cursory examination of the most successful and fulfilled people in Society shows us that being true to ourselves is the only way to truly succeed.

If people could just stop wasting time and energy on suppressing their supposedly negative traits. If they could just forget about cultivating their image for a moment and create from their heart then they wouldn’t need approval and they could set their talents in motion.Instead of living our lives for other people or acting out some caricature of ourselves we could be constantly renewing and creating ourselves. Outside of the realm of habit and custom we could be ourself; whoever we choose that to be.
If we could just start where we are?

There’s no need to emulate the thought processes of others or to judge yourself by their standards. As Elizabeth Kubler-Ross said:-

“Our concern must be to live while we're alive... to release our inner selves from the spiritual death that comes with living behind a facade designed to conform to external definitions of who and what we are.”

It is exciting when we are released from the linear world of expectations and habit and are able to live in the world of renewal and creation. An electrifying counter-cultural world where one can think for oneself. A world that for me conjures up images of Easy Rider(1969), Jefferson airplane and Thunderclap Newman. Images of throwing away your wristwatch or of quitting your job and doing what you’ve always wanted like Kevin Spacey’s character in American Beauty. Living for yourself not in someone else’s head, not in a shop display but having the freedom to choose who you are and to think as you think for yourself. To be, in the words of Dame Edith Sitwell “an unpopular electric eel set in a pond of goldfish”.

As sir Cecil Beaton said, “[b]e daring, be different, be impractical, be anything that will assert integrity of purpose and imaginative vision against the play-it-safers, the creatures of the commonplace, the slaves of the ordinary.” So, like John Major, you must get up on your own soap box in your own personal Brixton Market and live.

 

Murder by any other name...

Duelling - A system of rules

It is strange to think anybody ever thought that murder could be dressed up as a civilised institution. In the past, however, duelling tried to do just that by subjecting single combat to codes of practice. One particularly influential set of rules, the Irish code duello, was drawn up in Clonmel, Co. Tipperary in 1777.

The Irish code, (like its 1838 American Counterpart drawn up by the South Carolina Governor), reads like a piece of detailed legislation. It consisted of 26 rules that included everything from prescribed methods of apology to what constitutes a misfired shot. Parodying the lead up to litigation the preliminaries before a duel could drag out for weeks or months as letters and counter-letters were exchanged. Continuing with the legal comparison, the duties of a duellist’s second described in the Duello read more like a description of alternative dispute resolution methods than organised violence.

Like litigation and ADR duelling was conceived of as a reasonable and civilised institution for dispute settlement. It was thought that if death, like injustice in the courts, occurred in a few cases that was a small price to pay. The 1836 manual, ‘The Art of Duelling’, compares the duel victim to ‘the individual who is killed by the overturn of a stage-coach’. They are characterised as

‘both [being] unfortunate victims to a practice from which we derive great advantage.’

Steeped in staid language duelling was not about killing but about obtaining the rather nebulous ‘satisfaction’. ‘The Duel: a History’ (1965) by Robert Baldick, described the purpose of the Irish code, in administrative terms, as for the ‘better government of duelists’. Duels were thought to prevent larger Hatfield and McCoy style blood feuds. It was also supposed to generally increase civility in society by incentivising people to watch their manners lest they become entangled in a duel.

The Reality

Robert E. Howard, fantasy and historical adventure writer, said that

‘[c]ivilized men are more discourteous than savages because they know they can be impolite without having their skulls split, as a general thing.’

Beyond this preposterous romanticised notion of duelling, however, lay the barbaric reality.


Andrew Jackson, the 7th president of the United States,is one who shattered the duelling illusion. He was a prolific duellist who kept guns aside exclusively for his defence of his wife’s honour. In his duel with Charles Dickinson he was brave enough to stand still for his opponent’s first shot which lodged in his chest. However, when it came time for Jackson’s shot his gun only half-cocked. Under rule 20 of the code Duello, all cases of misfire are treated as being equivalent to a shot with ‘a snap or non-cock’ ‘to be considered a misfire.’ The duel should have ended at that point or proceeded, on agreement, to a further round with Dickinson firing first again. In spite of this Jackson simply immediately re-cocked his gun, took slow calculated aim and killed Dickinson with a shot.




Breaking the rules, especially in matters of life and death, rankles with our sense of fair play and we view his action as despicable. On the other hand, it must be incredibly difficult to stick to the rules, and not fire, when somebody has just shot you in the chest. Fighting taps into an animalistic instinct and one can understand why somebody in Jackson’s position may have shot Dickinson. Viewed in this way, it appears that fighting simply doesn’t lend itself to formalised rules. Passions are high and adrenaline is flowing.

In fact, duels were liable to break down in to utter chaos as another Andrew Jackson episode illustrates. On this occasion Jackson was merely a second in a duel. One of the participants, Benton, was shot in the buttocks. He and his brother, future Senator Thomas Hart Benton were resultingly angry. The brother called Jackson out on his handling of the duel and Jackson threatened to horsewhip him. Later in a Nashville hotel things escalated. Jackson thought Thomas Hart Benton was reaching for his pistol, Jackson drew his but Jesse burst through the door and shot Jackson in the shoulder. The falling Jackson fired at and missed Thomas. Thomas returned fire and Jesse moved in for the kill. At this point several other men ran into the room, Jesse was pinned to the floor and stabbed and a friend of Jackson’s fired at a retreating Thomas who fell backwards down a flight of stairs.

Farce!


Duelling was often at a farcical disconnect with its pretensions towards decorum and order. Alain de Botton says of the reasons for duelling that ‘they were often petty in the extreme.’ He gives a number of examples. In Paris, in 1878, one man killed another who had described his apartment as tasteless (Alain De Botton). In Florence in 1902, a literary man killed a cousin who had accused him of not understanding Dante (Alain De Botton).

This dispute settlement mechanism was as prone to dispute creation as it was to dispute resolution. George Washington advised General Nathanael Greene on his refusal to duel Captain James Gunn that it ‘would have been foolish to take up the challenge, since an officer couldn't perform as an officer if he had to worry constantly about offending subordinates.'

One of the most famous duels in American History the Burr-Hamilton duel shows how futile duelling can be. In that duel the standing vice-president Aaron Burr and the former secretary of the treasury, Alexander Hamilton. Hamilton had written in a letter the night before the duel and had otherwise conveyed that he intended not to aim for Burr. This may or may not have been true. In any event, Hamilton’s shot was a throwaway shot, Burr shot and killed Hamilton and his career and life was destroyed in the ensuing political fallout.



Duel of wits

Ultimately, what impressed me more when I was reading about duelling were not accounts of skilled duellists but was Mark Twain realising he was a poor duellist and his quick witted second getting him out of a duel. There the second, shot a bird's head off, attributed it to Twain’s gun skill and likened duelling Twain to suicide. The opponent dropped out.

The legendary Southern duellist Alexander Keith McClung, by contrast cut a rather pathetic figure. He was hard drinking, dressed in a flowing cape and recited morbid poetry. He was expelled from the navy as a young man for threatening the lives of his colleagues. In 1855, he shot himself dead in a Jackson hotel leaving behind a final pitiful poem, ‘invocation to death’.


(Sources: PBS on duelling, Wikipedia, ‘Duel!’ by Ross Drake –Smithsonian, Art of manliness website, status anxiety by Alain de Botton, etc)

Stalin: Shallow charm and deep mistrust

Charm


Stalin had the potential to be utterly charming. He could negative the most caustic of his remarks and unruffle the most ruffled feathers with his irresistible magic. (E.g. having Churchill characterise him as ‘splendid’ after having, only shortly before, offended him to the point of storming out). He was generous to the point of giving away his own flat. He also kitted his colleagues out with US made fridges and some of the first TV’s. Taking a special interest in his own beneficence he came in person to check the heating system in a mansion he had given to Beria.

However Stalin’s charm was but a shallow veneer. It operated more effectively as a cynical political tool. He did kindness much better from a distance. Proximity to Stalin was usually lethal. Stalin’s friendship was suffocating as is amply demonstrated in his relationship with Sergei Kirov. After his wife Nadya’s suicide, Stalin wanted to be with Kirov all of the time.

Beneath the surface, however, lurked resentment, poisonous jealousy and mistrust. Bukharin’s widow said of Stalin that he was able to love and hate the same person

‘because love and hate born of envy...fought with each other in the same breast’.

Stalin’s relationship with Kirov thawed and Kirov was assassinated in suspicious circumstances with Stalin taking over the murder investigation. Kirov’s bodyguard, at the time of the assassination, was subsequently to be the sole casualty in a mysterious raven van crash.

Stalin’s glib charm did not come with the ability to relate to others or feel empathy. Stalin’s complete mistrust of everyone permeated his entire character. He once said of himself,

‘I trust no one, not even myself’.

Cynicism and lack of trust

What loneliness is more lonely than distrust? –George Eliot

Stalin was cynical and mistrustful of everyone. He characterised everything as a personal betrayal. He described his wife (after her suicide), as having left him ‘like an enemy’. He was alone even amongst his entourage and was prepared not only to make minatory remarks but to order the execution of any of his colleagues. He was determined always to get others before they could get him.

Bearing this in mind he often felt the need to make his associates feel uncomfortable or collect incriminating information on them. This allowed him to keep his potential enemies (ie. everyone) in check, to pre-empt their potential attacks and have some ammunition to bring them down

His secret police chief Yagoda’s execution involved his successor, Yezhov. Yezhov was in turn killed under orders from his successor Beria. In this cutthroat world of his own creation Stalin, in the years before his death, began collecting evidence from victims of Beria’s sexual assaults in an effort to be ready for Beria.In this culture of mistrust Stalin’s responses (ruthless and unbalanced) inadvertently created the world in which his fears of betrayal were well founded.


Final act



In the later stages of Stalin’s rule denuded of his charm, wearied from decades of tyrannical rule and war and suffering ill health Stalin became a caricature. One is reminded of the ending of Scarface. Tony Montana like Stalin sees the emptiness of life at the top, becomes increasingly paranoid and prone to violent outbursts and excess.

Stalin used bacchanalian dinners to force his colleagues to drink to loosen their tongues and loose control. Stalin’s mistrust and sadism created an oppressive atmosphere where his men had to pretend to drink and the entire Soviet Union was rule from the cinema and dinner table. Pranks and bullying were all part of Stalin’s entertainment at these events. Stalin would get so drunk that he might throw a tomato at Khruschev.On one occasion a drunken Stalin fired off a shotgun recklessly, barely missing one of his colleagues and hitting his bodyguard.

After Stalin’s long time doctor, Vinogradov, examined Stalin he discovered his health had greatly deteriorated. Hypertension, arteriosclerosis and disturbances in cerebral circulation (causing cysts in the frontal lobe) afflicted the Vozhd. Stalin’s illness made him increasingly paranoid and angry. He ordered his medical records destroyed and Vinogradov became an enemy of the people. The fabrication of a doctor’s conspiracy and widespread arrests of doctors followed.

‘The story of the bananas sums up the governing style of the ageing Stalin.’(Montefiore)

After Stalin peeled a banana which turned out not to be ripe he ordered the arrest of banana importers and ordered the sacking of the new trade minister. A few days later Stalin was still talking about the bananas. Stalin attacked everything –Jews, doctors, banana importers, etc.

At this ageing extreme Stalin's pathology is brought into sharp focus. Stalin ultimately could trust no one and this corrosive mistrust is what shaped him. Mistrust of his colleagues.Mistrust of himself when the Germans invaded and he abandoned his position holing himself up in his Dacha. He bugged all of his magnates homes, he delighted in their mutual hatred of each other and had to be consulted on every decision no matter how small. Under the exhausting weight of all of this brutality Stalin felt what he described as a 'holy fear'. He valued his privacy, felt alone among his friends and felt the need to bring everybody into his own disgusting and brutal inner world. If he was brutal, disgusting and willing to turn on people the world had to be too.

(Source: Court of the Red Tsar)