[This is a short version of a book ‘Terror and the Police State; Punishment as a Measure of Despair’, published in 2015. The book focussed on France after 1789, Russia after 1917, and Germany after 1933. The instalments will follow the 21 chapter headings that are as follows: 1 Terms of Engagement; 2 Enduring emergency; 3 Righteousness; 4 Good bye to the law; 5 Instruments of terror; 6 Civil war; 7 Waves of terror; 8 Degradation; 9 Secret police; 10 Surveillance; 11 Denunciation; 12 Fear; 13 Popular courts and show trials; 14 Scapegoats, suspicion and proof; 15 Gulags; 16 Propaganda, religion, and cults; 17 Surrealism and banality; 19 The horror; 20 The meaning?; 21 Justification. The short version is about one quarter the length of the original. Each instalment is about 1200 words.]
4 Goodbye to law
Before the English went into their century of change, they had experienced three phases of revolution or evolution in the previous four centuries that had not occurred in France. First, the then aristocracy, the barons, had effectively put the English crown under contract with the Great Charter of 1215. This was the foundation of the rule of law, because the king too was said to be under the law. Secondly, the English had terminated their ties to Rome. They declared religious Home Rule and repatriated their church. They did so through the king speaking through the Parliament, so that the royal succession and the headship of the English church derived from the Parliament. When they came to settle with their king, their aristocracy was on side, and they did not have to worry about Rome or priests. Thirdly, the English were able to deal with their king through their parliament, which did represent all orders in the nation, and had had hundreds of years’ experience. When Louis summoned the Estates General, it had not met for a century, and it was moribund. The French nobles and bishops, and indeed the crown itself, were not used to negotiating about their place, and they were unwilling and unable to do so. Fourthly, the English had developed a fiercely independent group of lawyers and judges who were capable of acting against the crown, and as often as not, were more than happy to do so. Landed squires were trained in the law in the Inns of Court, proficient in the political arts required in the House of Commons, capable of translating political gains into binding legal compacts, ready to lead a citizen army if required, and religious fanatics who were utterly incorruptible and prepared to die rather than to give in to royal power.
Those promoting the Terror in France could at least claim to come from the moral high ground. That is very difficult with the Russian version and impossible with the German. The Nazi Party was made of thugs, by thugs and for thugs, and terror was part of what we would now call its DNA. The Russian Communists may not have started out that way, but they got there soon enough by the ineluctable logic of the proposition that all power corrupts.
Until the declaration of the republic in France, there was a more or less recognisable structure of government, even if it was tied up and inept. When you destroy an absolute monarchy, you may get an absolute void. There had been nothing like our police force or standing army. The driving political force of the revolution came from clubs like the Jacobins and Cordeliers in Paris, and their affiliates outside. There would be tension between Paris and the provinces and lethal civil wars with major centres like Lyons, and the Vendée. There were divisions in the priesthood before and after the Vatican revealed a hostility to the revolution that matched that of other foreign powers. The Commune in Paris was what we might call the Paris City Council and it claimed to exercise powers and give commands. Then each Section in Paris claimed its own rights. The National Guard was not as powerful politically as the Praetorian Guard in Rome or the SS in Nazi Germany, but the centre of armed force always attracts adherents. There was no real tradition of independent legislators or judges in the English model, and a time of crisis of threats from outside and inside was not a time to learn how to live with factions. (Since a faction indicated dissent, they were proscribed in Communist Russia and Nazi Germany, but some of the coldest killings in the French Terror were the final acts of factional feuds and vendettas.) The very absence of a complete and authoritative central power contributed to the general sense of insecurity and unease that made something like the Terror seem inevitable.
Some of the key phases of the descent of legal civilisation in France are as follows. The Assembly announces the state of emergency – the Fatherland is in danger. An insurrectionary commune is established in Paris – power to the people (or the mob or la foule). The Convention abolishes the monarchy. The king is executed. The Revolutionary Tribunal is established, with no review or appeal. Committees of Surveillance are established – an essential part of the police state. Deputies (our MPs) lose their immunity – faction fighting gets terminal. The mob demands the death of a whole faction in the Convention. Representatives on mission are given dictatorial powers. Military service becomes general. The Law of Suspects is introduced. All government is revolutionary – all under the Committee of Public Safety. A series of laws obliterate the rights of the accused. The ‘trials’ are mockeries. Government is an instrument of factional and personal revenge. The Terror ends when Deputies work up the courage to kill Robespierre before he kills them.
A small revolutionary tribunal will, almost by definition, contradict every part of the rule of law. One of the great objections to the old regime was that the king could take some action – like issuing a lettre de cachet (a royal command to detain someone) – and, when asked why, say ‘reasons of state’, raison d’état. The revolutionary government soon had the same process – and worse. The Convention slipped slowly into a cycle of factional vendettas and the Committees and the Tribunal executed the judgment of the ruling clique from time to time until the vicious circular regress ran out of willing blood, and the nation of France heaved a sigh of relief and disgust.
Adolf Hitler came to power with less than half the vote, but once he got his foot in the door, he kicked the door out and remade the house to suit him. He had never sought to conceal his ambition to clear away the trappings of a failed state. In 1931, the then Chancellor had said to Hitler with complete truth: ‘When a man declares that once he has achieved power by legal means, he will break through the barriers, he is not really adhering to legality’. Hitler responded with equal truth: ‘Herr Chancellor, if the German Nation once empowers the National Socialist Movement to introduce a constitution other than that which we have today, you cannot stop it….When a constitution proves itself to be useless for its life, the nation does not die – the constitution is altered.’
Part of the deal was that the new government would consent to an enabling act giving Hitler Emergency Powers. This was Peisistratus in overdrive. The day he was appointed, Hitler alerted the Berlin Brownshirts to go on to the streets. He then assembled the Cabinet and told them that the Reichstag would be dissolved and new elections held to give him the emergency powers necessary to deal with the crisis. Two days later, General Ludendorff wrote to the aged President: ‘I solemnly prophesy to you that this damnable man will plunge our Reich into the abyss and bring inconceivable misery down upon our nation. Coming generations will curse you in your grave because of this action.’
The people of Russia have had only fleeting contact with the rule of law or civil rights since that nation came to be known under that name. Those who would become revolutionaries were brought up to deal with the vicious police state of the Tsars. They were trained in and by it. The first leader of the Cheka, the Soviet secret police, had spent most of his adult life in exile or prison. They were seasoned haters, drained of humanity, but competent in their methods of degradation and torture. Flaubert once remarked that ‘inside every revolutionary, there is a policeman.’ If the Tsars were not troubled by questions of legality, Lenin was even less troubled, and Stalin had a preference for murder plain and simple