[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.]

13

Popular courts and show trials

The phrase ‘popular justice’ is usually a contradiction in terms – a ‘show trial’ is generally all show and little or no trial.  Two elements are essential to our conception of due process or natural justice.  The body hearing and determining a legal dispute must be neutral and not have an interest in the outcome issue that might prejudice its hearing; and it must give an equal opportunity to both sides to be heard on the issue.  Instances of popular justice and show trials commonly violate each of those precepts quite shamelessly.

A popular court nowadays is likely to be a descendant of the posse, either the medieval common law version or that which was popular in the Wild West, and the lynch mob.  Their political counterparts now are opinion polls and shock jocks, those two forces that demean all decency in democracy.  Just as our politicians now are seen not to act on principles but to respond merely to what people want at the time, so a popular court will be seen, and most likely be welcomed in being seen, to be acting not according to law, but merely to respond to what people want at the time.

The problem can be seen in the term ‘enemy of the people.’  It is ‘the people’ who make that allegation, and if it is ‘the people’ which hears it, then the mere laying of the charge – that in effect says that ‘you are against us’ – just about proves any case, because ‘we’ are gainst ‘you’.  If in a time of conflict, a government says that it is entitled at law to apprehend anyone who is seen to be against or is suspected of being against it, the issue of whether that person has been lawfully apprehended is also effectively answered.  If the only penalty or remedy for being apprehended in that condition is death, then any hearing on any aspect is likely to be at best perfunctory.

The problem is the same if the criterion is being anti – or counter-revolutionary.  Those bringing the charge are those who claim to be behind and to represent the revolution.  The object of the revolution is to do good for the people.  It follows that someone who is against the revolution is against the people.  If you accept the premises, the logic is sound; shock jocks and the gutter press – the descendants of Marat and Goebbels – trade on it all the time.

What you see a lot of in a police state is people who become outlaws – people who are outside the law or beyond the protection of the law.  This was a major part of the enforcement of the law for our Anglo-Saxon ancestors.  A criminal taken in the act was without more an outlaw.  The issue is not whether he has committed a crime, but whether he has become an outlaw, which was effectively a sentence of death.

People making a revolution will want to invoke people’s courts because they claim to stand for the people, and because they say that the people can be relied on to meet current needs better than the old-fashioned and cumbrous system of the judges which was designed to protect the status quo and to shield the guilty.

The Paris Commune asked the Assembly for a revolutionary tribunal.  One deputation said said: ‘The Commune has deputed us to ask for the decree on the court-martial.  If it is not passed, our mission is to wait until it is.’  Robespierre said: ‘If the maintenance of the peace, and above all, of liberty, depends on the punishment of guilty men, you must secure the machinery for this.  Since the 10^th [August, 1792, that set up the Paris Commune] the people’s just desire for vengeance has not yet been satisfied….Those men who have covered themselves with the mask of patriotism in order to kill it, those men who affected the language of legality in order to overthrow all the laws….’(Applause.)

The French did not really go in for show trials during the Terror.  A show trial is not a trial at all.  It is a sham.  A trial involves reaching a decision on an issue.  That does not happen in a show trial – the decision on guilt has already been taken by people in government who have the power, either by law or in fact, to take and enforce that decision.  The ‘trial’ is a show for the benefit of the regime, a propaganda exercise to demonise the culprit and to lionise themselves.  It is little like a triumph celebrated by a conquering Roman general on returning victorious to Rome – you humiliate the vanquished as part of the bread and circuses that you feed to the masses; that makes them feel better and it makes you look good.

Hitler saw himself like a Roman emperor or Turkish Caliph, or perhaps, in a lesser moment, as a medieval English king, the source of all law, justice, and authority.  His principal weapon in gaining and maintaining power, the Gestapo, was beyond the reach of the law.  The trial after the burning of the Reichstag was a show trial that flopped.  The court gave a considered judgment.  Having been harangued by Goring, the court concluded that the Communist Party had planned the fire, but that there was insufficient evidence to justify a conviction of the Communists before it.  Hitler and Goring were outraged.  Was not their word good enough?  ‘Treason’ cases were transferred to a special People’s Court by a decree of 24 April 1934.  It dealt with ‘political’ offences.  The decree provided that it should proceed according to National Socialist principles.  Like the French Revolutionary Tribunal, it started slowly but it then picked up speed.  If the Gestapo did not like a result, they would put the released culprit into ‘protective custody,’ or just shoot them.

It is not just Germans who should reflect on these questions.  Lawyers from what used to be East Germany had to face similar questions after the Wall came down in 1989.  These are not easy issues for lawyers or judges who have never been exposed to a regime like this to pass some kind of judgment on.  In April 1933, the Civil Service Law applied to all magistrates and got rid of not just those who were racially undesirable, but those who were politically undesirable – anyone who ‘indicated that he was no longer prepared to intercede at all times for the National Socialist State.’  A Civil Service law of January 1937 called for the dismissal of all officials, including judges, for ‘political unreliability.’ Defence lawyers appearing before the People’s Court or Special Court had to be approved by Nazi officials.  How many lawyers will put their hands on their heart and say that they would have refused to accept such sanctions?

There is not much point in looking at the Russian justice system since Russia has never had a justice system in the European sense of that term.  The Russians have never acquired any sense of the rule of law.  They have gone from the absolute rule of the Tsars to the absolute rule of the Communists to the present uncomely collage of a tolerated corrupt despotism and a subservient legal system.  The very idea of a judiciary was quaint; that of a separate and independent judiciary was absurd.  Yet a man as cruel and paranoid as Stalin would not be able to resist the idea of a show trial, just as Hitler would want to see the frightful death throes of people convicted of trying to kill him – when they were filmed being left to die by strangulation while suspended by piano wire.  One historian says of the show trials: ‘This is revolutionary terror with a difference; one feels the hand of a director, if not an auteur.’

There were clusters of show trials where the accused appeared to make confessions that many found less than convincing.  However, many people outside wanted to believe in the process until the whole regime was unmasked by Khrushchev in the 1950’s.  It is another indication that people believe what they want to believe.