Category Archives: rule of law

The guilty-if-accused school of jurisprudence

George Pell at court: an overdue victory for the rule of law

Detention without trial, guilt without proof

It is shocking, writes Dalrymple, that the case against Cardinal Pell was seriously investigated in the absence of evidence, and even more shocking that it was brought to trial and ended in conviction. Of course,

it is terrible for someone who has suffered abuse to not be believed. But it is also terrible for an innocent man to be wrongly accused, even if he is eventually exonerated. It is part of the unavoidable tragic dimension of life that both are possible: not for nothing is the prohibition of bearing false witness one of the Ten Commandments.

He warns of the danger of surrendering legal administration

to the political and emotional pressure of those who believe that certain categories of crime are so heinous that normal safeguards against false conviction must be abrogated. Better that ninety-nine innocent men be convicted than one guilty man be acquitted, especially when he already belongs to a category of persons whom one dislikes.

No one is guilty merely because he is accused

Dalrymple notes that campuses,

with their censorship and de-platforming, have demonstrated how shallow is the commitment of some people to the notion of freedom of speech and thought. Likewise, the Pell case has illustrated how shallowly implanted is the commitment of some people to the principle that a man is innocent until proved guilty, once moral enthusiasm for a cause takes over.

This,

be it remembered, takes place in polities in which the principles of freedom of speech and the rule of law are supposed to be deeply rooted. Things are often more fragile than one supposes, including the commitment to basic rights of the accused.

Associations in defence of victims of abuse are said to have been angered by the overturning of the Cardinal’s conviction. Dalrymple asks:

Would they prefer detention without trial, and guilt without proof? Perhaps if it were under their direction.

There are fears for the safety of the Cardinal,

so certain are his calumniators of the rectitude of their outrage.

The sort of thing one would expect in a dictatorship

Out come the candles: women must be believed qua women

Femaoism on the rise

Dalrymple writes that Brett Kavanaugh’s statement to the committee after Christine Blasey Ford had given her evidence

was a very bad one. As he was soon to recognise, he spoke in a way in which he should not have spoken and said things that he should not have said. To me he sounded more like a politician than a judge.

However, Dalrymple points out that those who demonstrated to the effect that the women who accused Kavanaugh of misconduct were to be believed qua women

are guilty of flagrant sex stereotyping. They degrade their sex and render it less than human.

Dalrymple does not say that Christine Blasey Ford lied, only that

to claim that she did not do so because women ex officio do not tell lies is to diminish women as human beings.

What Ford said

was not substantiated, and insofar as there is evidence other than what she said, the evidence is against her. This is not the same as saying that her testimony was untrue; but no criminal prosecution could be brought on the basis of what she said, and even a civil case would fail. What we are left with is a mere possibility, and it seems to me unlikely that, in the absence of startling new evidence, it will ever amount to more than that.

The protesters showed

how little they respected due and established process and how fragile was their belief in the rule of law. They would let unsubstantiated allegations—provided they were of the right sort—wreck a man’s career and perhaps deprive him of a living, certainly stain his reputation for the rest of his life if not longer, principally because they didn’t like his views. This is the kind of thing one would expect in a totalitarian dictatorship, complete with staged outrage and accusations against which there can be no complete defence.

The effect of the episode is the advance of the cause of what Dalrymple calls

femaoism, an amalgam of feminism and Maoism. For some people, there is a lot of pleasure to be had in hatred, especially when it is made the meaning of life.

Femaoism

Parole is disgraceful in theory and unworkable in practice

Justice should not be handed over to psychologists, social workers, or psychiatrists

The only thing parole is good for, writes Dalrymple, is

the employment of large numbers of officials engaged in pointless or fatuous tasks who might otherwise be unemployed.

The parole system is

inimical to the rule of law. To grant or withhold liberty on the basis of speculations, inevitably inaccurate, about what people might or might not do in the future is to reinstitute what amounts to a star chamber. A man is to be punished for what he has done beyond reasonable doubt, not for what some questionnaire or bogus calculation says he has a 70% chance of doing at some time in the future.

For this gross arbitrariness be avoided,

all sentences should be of a fixed length. If they are too short, so be it: they should be lengthened in future for similar crimes.

Determinate sentences unalterable by parole are a requisite of the rule of law

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In the cant or psychobabblish modern expression, they wanted their lives back

Dalrymple writes:

The rule of law is the rule of law, not another thing. Determinate sentences are not the same as inflexible ones: mitigating (and aggravating) circumstances must always be taken into account, but they should be matters of discoverable fact about the past, not of inevitably amateurish speculations as to the future. Parole introduces avoidable arbitrariness into the criminal justice system, and while arbitrariness cannot be avoided altogether, it should be kept to a minimum.

Arachnophobia

It's not quite what the British people agreed to in the 1975 referendumFor years, writes Dalrymple,

doubt about the wisdom of a European project (whose end can only be seen as through a glass, darkly) was attributed by its enthusiasts to a quirk, one that combined some of the features of

  • mental debility
  • arachnophobia
  • borderline personality disorder

One would not be surprised to learn that the European Union had sent lobbyists to Washington to have Euroscepticism included as a category in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.

By now, though,

even the most convinced European projectors must have noticed that their project is not going swimmingly.

But

the projectors suggest that the solution to the difficulties is the granting of even more powers to themselves or people like them, that is to say those who conjured up the difficulties.

Morbid conditions

are never equally distributed geographically, and Euroscepticism was originally a predominantly British disease, an amusing consequence of our insularity; but it is spreading throughout Europe. The débâcle of the common currency, which will no doubt have a dénouement but not necessarily a solution, has lowered the estimate of the union in the eyes of practically all member populations.

What if the results of referenda turn out unfavourably?

The history of the union suggests that they will either be ignored or that there will be more referenda until the population gets the answer right: the European variant of African post-colonial democracy, that is to say one man, one vote, once.

And people like Habermas, Van Rompuy, Barroso et al.

are capable of boring the people of Europe into submission. You can bamboozle people so long as politics does not really interest them because their lives are going along quietly and smoothly, and they do not pay it much attention.

But

once their attention is caught by such things as unemployment, evaporation of  their savings, constantly increasing taxes and collapsing living standards, more precision will be needed.

Words that

connote human solidarity but denote bureaucratically administered and enforced transfer payments — on a scale that make Marshall Aid look like pocket money — will no longer suffice.

Openness, says Dalrymple,

is not the same thing as the incontinent abandonment of character, any more than hospitality is the indiscriminate welcoming, without any exclusion, of all and sundry into one’s home.

Multiculturalism as an official doctrine,

complete with enforcing bureaucracies, undermines the rule of law because it seeks to divide people, formalise their cultural differences and enclose them in moral and intellectual ghettoes. The rule of law requires a common cultural understanding, not merely the means of repression to enforce a legal code. Once that cultural understanding is lost, all that remains is repression, effective or ineffective, and experienced as alien and unjust. Nothing remains but conflict or surrender.

Supranational courts cannot supply the want of a national understanding, for two reasons:

  1. They are designed to escape any national tradition, as Rousseau knew Man, but not men. Just as the European Central Bank could set interest rates adapted to none of the member countries’ economic needs, so a supranational court or organisation can produce rulings that correspond to no one’s traditions, principles, requirements or interests.
  2. Supranational organisations, unlike international ones, escape the kind of checks and balances that can operate on a national scale. In the French press the need for such checks and balances is not even mentioned, probably because it is not thought to exist. In Napoleonic tradition, every problem is conceived as an administrative one; and even as the scant legitimacy among the French population of Europe seeps away, so it is proposed that the powers of a European administrative class be increased.

The enemy within France

Screen Shot 2015-12-04 at 08.03.56The government of France allowed, Dalrymple points out,

the mass immigration of people culturally very different from its own population to solve a temporary labour shortage and to assuage its abstract liberal conscience.

An estimated 8m or 9m people of North African and West African origin dwell in France, twice the number in 1975. At least 5m of them are Muslims. The French government has handled the resultant situation

in the worst possible way. Unless it assimilates these millions successfully, its future will be grim.

France has

  • separated and isolated immigrants and their descendants geographically into dehumanising ghettoes
  • pursued economic policies to promote unemployment and create dependence among them, with all the psychological consequences
  • flattered the repellent and worthless culture that they have developed
  • withdrawn the protection of the law from them, allowing them to create their own lawless order

A profoundly alienated population is moreover

armed with serious firepower.

Paris is caught in a dilemma between

honouring its commitments to the more privileged section of the population, many of whom earn their livelihoods from administering the dirigiste economy, and freeing the labour market sufficiently to give the hope of a normal life to the inhabitants of the cités.

The likelihood is that the French State will continue to respond merely by

attempts to buy off the disaffected with more benefits and rights, at the cost of higher taxes that will further stifle the job creation that would most help the cité dwellers. If that fails, as in the long run it will, harsh repression will follow.

Singapore velly, velly law

Collyer Quay

Collyer Quay

That is what a Singapore taxi driver said when Dalrymple asked why no taxi had stopped for him on a particular stretch of road. (Dalrymple had been standing a yard from the legally constituted designated spot at which taxis could pick up passengers). Thus, writes Dalrymple,

an imperfect command of the English language sometimes confers an expressive eloquence and succinctness.

An accurate summation of the situation in the city-state. Dalrymple admits to a certain ambivalence about the place.

I admire rather than like its discipline, even if I think on balance that its effects have been good.