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Thursday, November 10, 2005

Off to prison she must go

LI opposes the death penalty. But LI also believes that Saddam Hussein should have been shot on the day he was captured.
We reconcile these two positions dialectically – which is a fancy word for weaseling around seemingly irreconcilable positions.
Clive Foss has produced a nice overview of the dispatching of tyrants in November’s History Today.

Foss does a very English job of maintaining an armed innocence about the whole issue of violence and the state. That is the crux issue for us, and the reason we believe that a gap opens up in the very notion of law itself when a tyrant is overthrown.

Foss’s article ends with the current decorous human rights point of view:

“In modern times, a consensus has emerged that tyrants should not get way with their crimes against humanity but must face a fair trial, not so much for revenge as for catharsis, to bring closure to the survivors of their actions, and as a warning to future would-be tyrants. Yet fairness can itself bring problems. If Saddam's tribunal decides to exercise due legal process, the case could drag on for years and could prove embarrassing for the powers who supported him in the past. Delayed justice brings real dangers: Tyrants can start to look better in retrospect, especially if the succeeding regime fails to offer security or prosperity; the population might get exasperated waiting for closure; and the ex-tyrant could serve as a rallying point for opposition. On the other hand, swift or arbitrary justice could undermine the rule of law that a country like Iraq is so determined to achieve. Much will be heard about these precedents and the complications they evoke.”

The rule of law that Iraq is so determined to achieve is a little neocon poppycock. The rule of law is, on the contrary, what the government has been running over roughshod, tearing up the rules, for instance, on making its constitution in order to produce a document to fit the American schedule. Etc.

But ignoring that, Foss’ introduction of the notion of deterrence is a way of normalizing the trial of the tyrant. Like any other trial, it points to its predecessors, and it points to that whole strain of mimicry which exerts a concentrating force on the social whole. In this way, Foss papers over the uniqueness of the founding situation. If Foss is correct, revolution has no status whatsoever in politics.

This is why Foss is evidently embarrassed by the trial of King Charles I:

“The first trial of modern times, in England, illustrates problems that still challenge equitable solution. King Charles I, not everyone's idea of a tyrant, had fought and lost a civil war, and wound up the prisoner of enemies who were determined to punish him. By then, the government was in the hands of a small minority of a House of Commons purged of any who might be sympathetic to the king. What remained of the Lords refused to cooperate, so the trial was conducted by a 'High Court of Justice for the Trying and Judging of Charles Smart', claiming to represent the will of the people of England. From the beginning, the verdict was never in doubt: the trial was a cover to justify executing the 'tyrant'. The indictment stated that Charles had conspired to overthrow the rights and liberties of the people, had levied war against parliament and was guilty of all treasons, murders, burnings and damages committed in the wars. He was accused of being a tyrant, a public and implacable enemy of the commonwealth of England.
The King, who was allowed no counsel, faced his accusers alone. To their chagrin, he ran circles around them. Instead of replying to the charges, he attacked the authority of the court. He claimed that the tribunal was illegitimate, unrepresentative of the people or parliament, and that it had no right to try him. To accept the legality of the court, he claimed, would in itself be a violation of the laws. Charles turned the table on his accusers by maintaining that he was himself defending the liberties of the English people by resisting arbitrary power. Although the judges had no ready answers, the king was found guilty and executed, all in the course of ten days in January 1649.”

The execution of the king was the root out of which the liberal order in England formed, with all its contradictions, cruelties, and advantages. It is rather like the nursery rhyme, London Bridge is falling down.

London Bridge has fallen down, fallen down, fallen down,
London Bridge has fallen down, my fair lady!
Build it up with lime and stone ...
Stone and lime would wash away ...
Build it up with iron bars ...
Iron bars would bend and break ...
Get a watch to watch all night ...
Suppose the watch should fall asleep? ...
Get a dog to bark all night ...
Suppose the dog should get a bone? ...
Get a cock to crow all night ...
Suppose the cock should fly away? ...
What has this poor prisoner done? ...
Off to prison she must go.
My fair lady!

As many an excavation of old bridges have shown (and as Frazier made a point of in The Golden Bough) a victim – a poor prisoner – was often entombed in the bridge’s foundation to appease the river god. That’s as good an image as any for the state. In the revolutionary moment, there is, properly, no state, a fact that has been pointed out by every tyrant ever tried, from good Charles I to bad Nicolas Ceausescu. Was it Deleuze who speaks of the making of the state as a lightning like act? The state begins with a dazzling suddenness. And its post-revolutionary structural stability depends upon having sacrificed the right victims to the people: those tyrannical bodies entombed in the foundation. This is why a trial should be swift, if trial there is to be. Foss’ mention of trials that linger on and on – he uses the example of Mengistu Haile Mariam, the Ethiopian dictator who eventually escaped his trial.
What does it mean when the lightning like moment doesn’t happen? Foss’ model, which would make the trial of the tyrant like any other, would make this situation like any other in which a murder is unsolved. But if the state’s legitimacy is bound up in the death of the tyrant, then it is not simply a question of precedent – it is a question of the state’s own history. In essence, the moment of the non-trial is the moment in which the state embraces its earlier form. At that moment, the regime of abuse begins to contaminate the state’s own claimed renewal. There’s nothing inevitable about this. Chile may well continue to exist as a democracy without putting Pinochet to death. But there is something extremely hazardous about this. The collapse of Argentina in 2000 is linked not only to the incautious embrace of the bogus dictates of neo-liberalism, but the thousand uncut ties to the military regime that preceded Menem.

Now, LI does try to avoid the bloodless bloody rhetoric that comes up wherever politics is talked about – the glee in jailing people, cutting off their heads, raping them, which fills the comments of blogs on both the left and the right. Politics is and always will be partly entertainment – and glee is one of the emotions that part of it is supposed to arouse. But glee is a dangerous, lynch-y thing, and I am as afraid of it as any person with common sense. So I am not quite comfortable about the ideas I’ve traced above. Yet I do not think that the revolutionary moment is merely a figment of the overheated student libido. It has a real historical existence. That the American Revolution did not require George III’s head was a matter of contingency – the spatial separation of America and England – rather than any principle. In principle, the founding fathers would no doubt have had to execute him, if George III had incautiously ensconced himself on these shores.

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