Analytical Monthly Review, published in Kharagpur, West Bengal, India, is a sister edition of Monthly Review. Its January 2013 issue features the following editorial. — Ed.
We know nothing about the beliefs of the canon (religious) lawyers among the Christians, but can safely assume that they would consider it a sign of movement in the correct direction had the legionnaires who supervised and took part in the events on Calvary been arrested upon coming down the hill, and provided with counsel. In our world today the martyrs and those responsible for the martyrdom are caught up and presented in legalities, and compared to some alternatives this is a sign of progress. But “slightly less evil” is a poor label proudly to flaunt.
The question is fixing responsibility for evil, and the English Legal Tradition has accomplished its amazing practical success by ruling out from the start the question whether it itself may be the guilty party. It is of course among the historical credits of the ELT that once upon a time it had permitted those it executed for saying and acting on this knowledge to say so, at least for one last time before execution. Bhagat Singh had counsel, and even approved the unsuccessful appeal to the Privy Council, turned down by Andrew Graham Murray, 1st Viscount Dunedin.
Now probably Andrew Graham Murray is known, insofar as he is known at all, as having openly taken responsibility as a judge and Law Lord for the murder of Bhagat Singh, fully knowing that in the martyr’s own view and in that of millions of others of the lesser races that act would cast Dunedin himself as the murderer of Bhagat Singh. From Harrow and Trinity College, Cambridge and the Conservative Party, and as a member of his class and sure of his imperial role, such resistance to the evident truth of things (“rule of law”) was simply not of concern to Andrew Graham Murray.
Another historical strength of the ELT is the right to effective assistance of counsel, and its history had once a series of shining examples of lawyers permitted, and willing, to go to all (lawful) extremes in the defense of the accused in notorious (and political) cases in the tradition of Henry Peter Brougham, 1st Baron Brougham and Vaux. Brougham had been the defender of Queen Caroline at trial against the charge of adultery and the associated divorce proceeding initiated against her by King George IV. Brougham proudly acknowledged that he viewed it as necessary to subject “the duties of a patriot to those of an advocate” and be willing even “to involve his country in confusion for his client’s protection.”
It is key to understand that both Dunedin and Brougham stand as useful ideological elements. Both the transparent and neutral taking of responsibility (“rule of law”) on behalf of the rulers and the potentially unlimited offer of assistance of counsel (also “rule of law”) have served to permit the effective use on a global scale of the myths and traditions and language of the ELT — of course, in the interests of those who ruled and rule the UK and United States, and to no small degree the world. It does not much matter that neither transparency in the structure of rule nor leave to defend political cases á outrance — to the limit in spite of “national security” or “involving the country in confusion” — exist in current practice.
Today we are faced with recent martyrdoms in India and in the United States that have potentially global consequences, and illustrate the limited but continuing relevance of the ELT in our world. The first is an unnamed young woman tortured to death by rape in Delhi. The second is the death, on January 11, 2013, of Aaron Swartz, a twenty-six year old technical genius and unselfish information “pirate,” as a result of his arrest on January 11, 2011, and indictment for “charges related to wire fraud, computer fraud and unlawfully obtaining information from a protected computer” that carried a sentence in the United States prison system of up to 35 years and up to one million in fines.
The argument now taking place in regard to both deaths directly involves responsibility and as well the political limits of the ELT, in the joined contexts of practice and ideology and as applied to the death of martyrs.
Manohar Lal Sharma, Supreme Court advocate, is reported to have started out on his assignment to represent an accused in the Delhi case in orthodox fashion with the ELT standard presented as universal: “‘We are living in a modern society. We all are educated. Every accused, including those in brutal offences like this, has the legal right to represent his or her case to defend themselves.” But he is reported then to have followed by saying the young woman who had been tortured to death by rape “should not have been traveling back late in the evening and making [a] journey on public transport” with her boyfriend, and that in his entire experience he had not ever “seen a single incident or example of rape with a respected lady.”
Carmen Ortiz, the Massachusetts United States Attorney who initiated the draconian felony proceedings against Aaron Swartz that led him to commit suicide, is reported to have said: “Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away.” This despite the protestations of a supposed victim, “JSTOR” — an online source for scholarly journal articles that charges for access — that they did not seek any legal pursuit of Swartz by the government of the United States on either civil claims or criminal charges.
Lord Dunedin, knowing that, as “the law,” he was killing Bhagat Singh, stood undisguised as exemplar of the ruling class of the empire responsible for the death — the fact that he would be seen as murderer by wogs was not a concern, beneath his notice.
Carmen Ortiz represents the pathetic state of the distance between today’s reality and ELT “rule of law” ideology. This woman boasts of her origin in the oppressed class of hispanic-americans in the United States from the “slums of New York City,” an origin that in actual fact enabled her to make a career by relentlessly prosecuting other poor black and hispanic people and successfully and proudly seeking immense and shocking sentences of imprisonment. No doubt she sees herself only as a representative of “the law” — yet is as clearly the agent of an imperial ruling class that denies its own existence. To put the matter in a way that lawyers of the ELT will comprehend, it is no defense to a charge of causing the death of another that the victim’s skull was weaker than the norm and as a result collapsed under the blow; the responsibility of Carmen Ortiz for the death of Aaron Swartz is the same whether “caused” by suicide, or as a result of rape in prison, or of old age in prison when Aaron Swartz would have been sixty years of age thirty-four years from now. The more relevant question is that of the degree of responsibility of Carmen Ortiz: whether as a lone amoral monster, such as Adam Lanza who killed dozens of elementary school students in December in the state of Connecticut, or whether merely as a co-conspirator (“rule of law”), or both. In fact Carmen Ortiz sought publicity for her actions, and now cannot deny responsibility as an individual for the hideously amoral exercise of her discretion.
Lord Brougham’s broad statement of an attorney’s duty to his client was popular with neither bench nor bar. The English legal community has passed down the quip that it was a shame that Lord Brougham did not know a little of the law, for then it could be said of him that he knew a little of everything. But whatever his egoistic failings, it must be remembered that his statement of an attorney’s duty to his client was in the context of defending a woman from the charge of adultery, and as part of a successful political campaign to limit executive authority.
Today there remains only the shadow of the right to effective assistance of counsel. In the United States an honest and principled attorney, Lynne Stewart, is not unlikely to die in prison for what she had good reason to believe was behavior required by the attorney’s duty of effective advocacy. While in Delhi we have the repulsive farce of Manohar Lal Sharma’s claim that the “rule of law” provides a sacred right to defend his client against the criminal charge of rape by blaming the female victim for her lack of social respectability. Yet it is self-evident that such a defense is itself a continuation of the crime, however well supported in the precedent of the ELT.
What is then at issue in both cases is of fixing the responsibility of the English Legal Tradition itself as a criminal actor, and the recapture of the elementary truth that the “rule of law” is always the rule of those particular humans who have discretion to define and apply the law, despite every effort made to obscure that basic fact.
Progressive social change is neither advanced nor retarded by the ELT in itself, but advanced by the courage and daring of our martyrs and retarded by our enemies, not infrequently as attorneys, prosecutors and judges. Our martyrs include Bhagat Singh, John Brown, an unnamed woman tortured to death by rape in Delhi, Aaron Swartz. Responsibility must be assigned by a social and political process that critiques “the law,” a process in which the victims of the imperialist system of the English Legal Tradition and the “rule of law” play a central — indeed armed as is clear in the cases of Bhagat Singh and John Brown — role.
An immediate application is the case of Colonel Lama of the Nepal Army recently arrested and prosecuted in London purportedly for “human rights abuses” involving credible claims of torture in Nepal in 2006, during Nepal’s civil war. The civil war came to a close with a peace process created by the Nepalis themselves, over the opposition of, and after years of military intervention by, the United States. It is obscene that the courts of the Imperial Power of the United Kingdom and its English Legal Tradition can claim to exercise jurisdiction over events in Nepal for which the United States (which provided arms and torture-trained “advisors” to the then Royal Nepali Army) and its UK satellite had a primary responsibility, and in which Colonel Lama at most played the ministerial role of the Roman centurion.
The “rule of law” and “culture of impunity” claims of certain western NGOs and their well-paid native informers and hirelings are the apparent movers, though the deeper motive force is the vast wealth of their primary funder, financial market agioteur multi-billionaire George Soros. Soros, it needs be said, was first in the field in aid of the doctrine of “shock therapy” transition to capitalist barbarism in the former Soviet Union, and was criminally convicted of insider trading in France. It is a tribute to the fundamental health of the mental state of the people of Nepal that, in spite of the most intense political debate imaginable, all Nepali political parties have opposed this imperialist outrage (admittedly in a variety of much qualified language, since not a few of the leading opposition politicians to the right of the governing coalition have been on NGO payrolls). Responsibility for human rights violations committed during the civil war is for Nepal to decide; this is among the reasons there was a civil war in Nepal and that the people of Nepal themselves were able to bring it to an end.
Going forward from here requires a constant critique of the unexamined ideological claims of the ELT. Lawyers who blame women for the culture of rape, prosecutors who seek nightmarish penalties against tech geniuses who challenge the global rule of the “intellectual property” billionaires, English judges who once again as in the glorious days gone by subject the fuzzy-wuzzies of the lesser races to the civilizing (now of course “human rights”) mission of their betters, all wrap their crimes in “rule of law.” Yes, the culture of impunity must end; but if you cannot see that the process must start with those who have the most power rather than those who have the least, the failing is far more than merely intellectual.