Charlie Hebdo revisited

Are we free to offend is a question that we looked at on the first post on this site.  It was looked at again after the Charlie Hebdo murders.  Garry Trudeau is the creator of the cartoon Doonesbury.  He is obviously a very perceptive and articulate man.  He gave a speech recently to Long Island University that contained the following:

Why were they [his first cartoons] so subversive?  Well, mainly because I didn’t know any better.  My years in college had given me the completely false impression that there were no constraints, that it was safe for an artist to comment on volatile cultural and political issues in public.  In college, there is no downside.  In the real world there is, but in the euphoria of being recognized for anything, you don’t notice it at first.  Indeed, one of the nicest things about youthful cluelessness is that it is so frequently confused with courage.

In fact it’s just flawed risk assessment.  I have a friend who was the US army’s top psychiatrist and she once told me that they had a technical term in the army for the prefrontal cortex, where judgment and social conduct are located.  She said, ‘We call them sergeants.’…….

As you know, the Mohammed cartoon controversy began eight years ago in Denmark, as a protest against ‘self-censorship’, one editor’s call to arms against what she said was a suffocating political correctness.  The idea behind the original drawings was not to entertain or enlighten or to challenge authority – her charge to the cartoonists was specifically to provoke, and in that they were exceedingly successful.  Not only was one cartoonist gunned down, but riots erupted around the world, resulting in the deaths of scores.  No one could say to what positive social end, yet free speech absolutists were unchastened.  Using judgment and common sense were denounced as antithetical to freedom of speech.

And now we are adrift in an even wider sea of pain.  Ironically, Charlie Hebdo, which always maintained it was attacking Islamic fanatics, not the general population, has succeeded in provoking many Muslims throughout France to make common cause with its most violent outliers.

This is a bitter harvest.

Traditionally, satire has comforted the afflicted while afflicting the comfortable.  Satire punches up against authority of all kinds, the little guy against the powerful.  Great French satirists such as Moliere and Daumier always punched up, holding up the self-satisfied and hypocritical to ridicule.  Ridiculing the non-privileged is almost never funny – it’s just mean.

By punching downwards, by attacking a powerless, disenfranchised minority with crude, vulgar drawings closer to graffiti than cartoons, Charlie wandered into the realm of hate speech, which in France is only illegal if it directly incites violence.  Well, voila – the 7 million copies that were published following the killings did exactly that, triggering violent protests across the Muslim world, including one in Niger in which 10 people died.  Meanwhile the French government kept busy rounding up and arresting more than 100 Muslims who had foolishly used their freedom of speech to express their support of the attacks…..

What freedom of speech absolutists have failed to acknowledge is that because one has the right to offend to offend a group does not mean that one must.  Or that that group gives up the right to be outraged.  They’re allowed to feel pain.  Freedom should always be discussed within the context of responsibility.  At some point, free expression absolutism becomes childish and unserious.  It becomes its own kind of fanaticism.

If I may say so, there is much rude good sense here.  The people of Charlie Hebdo showed and they continue to show that they can stare down violence and death.  And for as long as they and others of a like mind continue to do the same, they will provoke violence and death for people who have had little or no choice about buying into this argument.  There is a dangerous naivety, a dangerous failure of risk management, a dangerous readiness to allow high theory to roll over bare facts in those whose faith in and commitment to an ideological imperative drive them to contradict the teaching of common sense and the prescription of ordinary good manners.

The people that Mr Trudeau calls ‘free speech absolutists’ may be dangerous for no other reason than that they subscribe to absolutes.  As soon as you allow absolutes in our political or legal thought, you will face an unacceptable risk that innocent people will have to be run over to accommodate the theory or prescription.

That is one reason why the common law avoids them.  It is one reason why we can get into awful trouble when we try to overlay the experience of the common law with some overarching constitutional imperative.  You have only to look at the juristic mayhem caused by the phrase ‘absolutely free’ in s. 92 of the Australian Constitution to see what damage can be done by absolutists when they seek to play around with our laws.  You might also look at the effects of the constitutional right to bear arms in the U S, and the frightful mayhem of a different kind that the U S Supreme Court has unleashed on its people as a result.

These issues were discussed by Sir Gerrard Brennan in a judgment in our High Court on the question of whether the law of defamation was inconsistent with a freedom of expression that the court found to be implied in our Constitution:

‘Freedom’ can be used in several senses and there is a danger in attempting to define a constitutional principle by use of an abstract noun of imprecise meaning, especially when the history of s.92 reveals that the corresponding adjective is extremely troublesome.  At the outset, it is necessary to distinguish between an absolute freedom and a freedom which is protected or guaranteed by law.  In law, there is no absolute freedom to do anything that might affect another.  Laws necessarily restrict absolute freedoms in order that all may live in a society of freedom under the law, by which we mean a society in which absolute freedoms are restricted by law to the extent that is thought appropriate to our history and culture……There are thus two distinct senses in which the term ‘freedom’ may be used.  One is a freedom to do anything – an absolute freedom; the other is a freedom or immunity from legal regulation created, expressly or impliedly, by the Constitution – a constitutional freedom.  The Court is concerned only with the nature and scope of constitutional freedoms.

One of the mantras of the champions of Charlie Hebdo, here and overseas, is that they have to protest against something called ‘self-censorship.’  Censorship is a form of control of speech.  It is assumed that any form of censorship is bad for that reason; a law that penalises a form of speech inhibits freedom of speech; anyone who succumbs to the ban and inhibition imposed by a law therefore engages in a form of censorship; any kind of censorship is bad; this law is therefore bad because it produces that bad result – it diminishes freedom of speech.

This is bullshit.  Almost every law diminishes our freedom because it forbids us to do something.  Almost every law diminishes our freedom of speech because our general law forbids us to agree to break that law.  If I offer you one million dollars to murder our head of state, you will think of the laws about murder and treason before you accept that offer.  If I offer you one million dollars to brand the Prime Minister a liar, you will think about the law of defamation before accepting my offer.  If I offer you a case of Johnny Walker Blue Label to stand out outside the MCG on Grand Final Day with a megaphone and publicly announce that a certain black footballer is as stupid as the rest of his race, you will give thought to at least three sorts of laws before accepting my offer.  Not necessarily in order, those laws are the laws of defamation, the laws dealing with racial vilification, and summary offences prohibiting insulting or abusive or offensive behaviour in public.  If you got legal advice, you would also be told that you will almost certainly miss the whole game because you will be in the slammer with no immediate prospect of bail.

In each of those cases, you would probably agree not to chance your arm.  If you chose to describe that process as one of ‘self-censorship’, people might give you a funny look, but that is just what the relevant laws were designed to.  They were designed to stop you from saying or doing something nasty that might hurt others – or just start a fight.  It is just absurd – or, in the language of Trudeau, ‘childish and unserious’ – to say that the laws that led to such an act of censorship are on that account bad.

This is I think no more than what Sir Gerrard Brennan, in the judgment that I referred to above, said in response to the argument of the press that the law of libel (defamation) has a ‘chilling effect’ on free speech.  Of course it does – that law is there to prevent some people from claiming to be free to destroy the reputations and lives of other people.

The defamation law, it is said, has a ‘chilling effect’ on the freedom to discuss government, governmental institutions and political matters which is inconsistent with the freedom.  The submission does not illuminate the answer to the relevant question.  It simply translates into tendentious language the legal truism that the tort of defamation achieves its purpose of providing protection for personal reputations by providing the remedy of damages against the tortfeasor.  If the publication of defamatory matter were not chilled by the remedy, there would be no sanction for publications that are neither justified nor excused. The question is not whether the absolute freedom to discuss government, governmental institutions and political matters is chilled by the law of defamation but whether the law of defamation, by chilling the publication of certain defamatory matter, is inconsistent with a constitutional implication.

So, we can forget any notion of absolute freedom, or of condemning a law merely for inhibiting freedom of speech.  The question for the law-maker then is this – given that we value our capacity to speak our minds with as little restriction on that capacity as possible, does the interest or value sought to be protected by the law imposing such a restriction warrant it?  This is the familiar question in the law of – where do you draw the line between interests of people that cannot all be accommodated?  There will frequently be a range of political views, in which there is no ‘right’ or ‘wrong’ – except to say that those who think that they can shut down the debate by invoking some political or ideological trump card are just plain wrong.

The law of defamation affects freedom of speech.  Some think it goes too far – such as the press; some think it does not go far enough – such as those who have been run over by the press.  There is no right or wrong answer.  We have laws meant to help preserve public order by making certain kinds of insulting words or offensive behaviour illegal.  These laws are never mentioned by the free speech absolutists.  Do we still need them?  Would they scrap them and just sit back and watch a riot start outside the MCG on Grand Final Day?  Opinions on these issues will vary as do opinions on most political issues.  Opinions also vary over time.  The relevant laws also vary greatly geographically.  We still have a law of blasphemy on our books.  It looks very different to us now than it did to our forebears one hundred years ago.  Should we keep it, or expand it?

We have laws forbidding insult or offence on racial grounds – these are just a particular application of those laws that enforce public order – should we extend those laws to forbid insult or offence on religious grounds?  In this country, is insulting or offensive behaviour on the ground of religion less likely to lead to a breach of the peace than insulting or offensive behaviour on the ground of race?  These are some more political issues that will not disappear with some ‘Open Sesame’ found at the bottom of a think tank.

One comment may be added to the last example.  Garry Trudeau asks the good question.  What is the point of provoking a religious group with language that we know will offend them?  Is it just to prove that we are so keen on this notion of freedom of speech that we will test others in our midst to and past their limits just to show how keen we are?  Or might the law-makers look more to the first purpose of our law – to contain violence and the vendettas that violence spawns?  Are we so politically naïve that we must champion the exercise of some ideological value that we will insist on doing so even when we know that as a result innocent people may well die?  Has our legal history sat comfortably on the shoulders of ideological champions?  Or do we behave like kids behind the shelter shed and say – it is not our fault but theirs’ – their ideas are not as good as ours?

In closing his speech, Mr Trudeau made two ad hominem points.  Charlie Hebdo had fired someone for being anti-Semitic.  Where you draw the line in offending a minority might therefore depend on the political clout of the offended minority.  The White House took a lot hits for not sending a big hitter to the march in Paris.  They may now look smart – especially given the identity of at least one big hitter in the front line of the march.  But, then, he was there to make a political point nearing an election, and in politics few things are sacred, especially at election time.  The ancient Gauls took many ferocious maulings when Julius Caesar was in their area – that we now call France – near election time.  Political decisions then as now were made on earthy, squalid grounds, far removed from the innocence of the colleges in our salad days.

Are we free to offend becomes a silly question.  If you mean ‘free’ in the legal sense, the answer is no; if you mean ‘free’ in some theoretical or absolute sense, the answer is yes, but at a price to be both determined and possibly paid by others.  The serious question of Mr Trudeau remains – why are some people intent on offending some other people for the sake of it?  And can they decently ask the rest of us to join in paying the price?  There is no black and white answer.

These are matters of deep moment for Freedom Boy and his appointor, Bookshelves, to ponder and opine upon.  At $400K+ a year, we stand assured of rich enlightenment.

Terror in Paris – I – A law of suspects?

 

There has been an increase in terror attacks in the West recently. The attacks in France have been worse than others. In their drive to outpace each other, the networks covering the events from time to time got ahead of themselves when looking at the histories of the dead criminals in the Paris attacks. The histories of those criminals had, we were told, made them ‘suspect.’ These histories were only in part in the open – the rest was the result of covert surveillance.

We could discern that there may be some shifts in public attitudes toward snooping on the communications if that snooping helps to prevent outrages such as those we have just seen, or to catch those who commit these crimes. For some bizarre reason I was reminded of my attitude to airline pilots a long time ago. I used to think that they were overpaid – but that thought always evaporated as soon as one of them had the job of lifting me and hundreds of others safely to the other side of the world.

Dealing with surveillance is one thing. Dealing with people who become ‘suspect’ as a result of that surveillance is something different. Under our idea of the rule of law, we do not deprive people of their liberty merely because they are suspected of having committed or of being about to commit a crime. It may be as well to look at how these questions are dealt with in states subjected to government by terror. The regimes of Stalin and Hitler were terrorist states. So was France for a period during the period of the French Revolution which erupted in 1789.

I have looked at those three regimes in the forthcoming book Terror and the Police State. On rereading the relevant chapter, it looks to me as if it has some bearing on some comments on recent terrorist attacks, and I set it out below. It does if nothing else give a warning of allowing terrorism in France now to allow us to be driven back to the laws of the Terror in France. The Law of Suspects was in some ways the low point of that Terror. It also is a warning about suspecting people or holding them liable just because of their creed.

Extracts from the opening chapter of the book giving terms of reference were posted here on 27 October 2014. An extract posted on 13 November gave a short history of the three regimes. Future posts will deal with terror and religion, surveillance and terror, and terror in France, Christianity, Israel and Islam.

A look back at history may provide an antidote to hysteria about the future.

*****

Extract from Terror and the Police State.

Chapter 14

Scapegoats, suspicion, and proof

In Ancient Greece there was a practice or rite of casting out someone like a beggar or cripple or criminal in the face of some natural threat or disaster. There are traces of a far older tradition in Syria when a goat would be invoked in the purification rites for the king’s wedding – a she-goat was driven out into the waste with a silver bell on her neck. More recently, but before the Greek custom developed, the Old Testament, Leviticus 16:8, said that ‘And Aaron shall cast lots over the two goats, one lot for the Lord and the other lot for Azazel.’ The goat of the Lord was sacrificed, and the high priest by confession transferred the sins of himself and the people to the goat that was permitted to escape in the wilderness – where its fate would depend on what sort of predators it may have to contend with. There was a form of atonement. The goat that escaped became the ‘scapegoat.’ The traditions or rites might be said to prefigure the role of the Son of God being offered up to redeem mankind by atoning for its sins. A scapegoat is one who is punished for the sins of others. This ancient Middle Eastern rite has become a universal custom involving people rather than goats.

But the term has got much wider than that – a scapegoat now is not just one that has to answer for the sins of others; it has to answer for all the problems and failings of what might be called the host people. So, in the most gruesome example, the Nazis held the Jews responsible for all the lesions on the German people, moral or economic. The war had been lost only because of the failings of some generals and because Socialists and Communists had stabbed the nation in the back. Once the German people got released from the hold of these forces of evil, it could realize its potential for the first time, and nothing could stand in its way. The German character was not just innately good – it was superior; therefore the reason for any failings had to be found elsewhere. The notion of scapegoat was vital to the perversion of what passed for thought under Hitler. It is the natural first base for a weak and insecure person who is a moral coward. It is also the kind of sloppy thinking that attracts insecure people, edgy commentators and journalists, and weak governments.

Scapegoats played a far smaller role in the French Revolution. Pitt’s gold – bribes from the British government led by Pitt – came to be a convenient source of all of the discontents of the people, and the aristocracy and church were loathed and attacked, but they had been principal pillars of the ancien regime that had failed and that was being rejected and replaced, and large parts of the aristocracy and of the church were opposed to those seeking to advance the objects of the Revolution. The émigré royals and nobles were a real and not just imagined threat, or one conjured up for the purposes of propaganda. The aristocracy was no more of a scapegoat than the clergy.

There were even reasons to fear the capacity of the inmates of prisons to harm the Revolution – the September Massacres in Paris in 1792 were manic and brutal, but they were not fashioned just out of malice. The driving force of the massacres was not from on high in the government, but in the mob in the form of the sections of the Commune of Paris. Even the killers in their panic or blood-lust felt the need to employ some form of trial in a quest to find the real threat to the nation – not just to the Revolution, but to the sovereignty of the nation. What we find it hard to follow is the relief felt and the welcome given to those who were spared or acquitted. There were elements of formality and benevolence in the brutal carnage that led David Andress in The Terror to say:

Prompt justice was done, with sound practical considerations in hand. That is the real horror. It is easy to come to terms with the idea of irrational carnage carried out by sadistic mobs: such facts fit neatly into the concept of a radically different, almost subhuman crowd, safely distanced from the self-image of the observer. Far less comfortable is the realization that bloody murder could be committed by upright citizens in the name of the country’s freedom. If we quite fairly object that the victims of September were not, in fact, the active partisans of a fatal plot gainst Paris, we must also agree that believing them so was a mistake shared almost unanimously everywhere from the Legislative Assembly to street-corner tavern.

If on that occasion the blue collar crowd, the sans-culottes, showed a need for some kind of procedural check on their enthusiasm, a big problem with what we would now call the political class is that they found it so hard to check their enthusiasm. They had not had enough experience of what we call party politics and political in-fighting to allow them to tolerate differences in points of view. You are either for us or against us; you have to decide; and you might lose your head if you decide the wrong way.

They were not experienced or mature enough to be able to put up with doubt or uncertainty on what they saw as matters of principle that they also saw as having nation-forming consequences. They were in a way the sad victims of the kind of political absolutism that they believed that they were escaping. If Flaubert said that inside every revolutionary you will find a policeman, it may because what you first find is an intolerant zealot – a fanatic. This is one reason that what we call faction fights were so lethal then. People getting together to oppose those in government were, almost by definition, conspiring against the nation. Division was bad in itself.

Nor does it make much sense to look for the role of scapegoats in the Russian Revolution. The convoluted theories of Marx would lead to serious differences of view upon implementation at the best of times. They were predicated on classes being in a conflict that was terminal, and the theories had an apocalyptic and prophetic air that commanded an adherence that was most devout among those who did not understand the theories – which meant most Communists, let alone Russians. To that you must had the cold egomania of Lenin, who hardly gave the theories a chance, and the manic paranoia of Stalin, who could not care less, and you see that it hardly helps us in our inquiries to ask if the kulaks may have been seen as scapegoats. The thinking that determined who might be targeted by regimes led by Lenin or Stalin – or, for that matter, Mr Putin – may be something that just passes our understanding.

A scapegoat may afford a kind of out for a regime, but suspects are at least a potential threat to it, at least ‘suspects’ in the terms that we are about to see. There is no reason why one person may not fulfil the criteria of more than one category. An aristocrat may have passed through a journey in time from being an enemy, to a threat, to a suspect, to a scapegoat. One of the infamies of Hitler was his treatment of the Jews as scapegoats. One of the darkest parts of the French Revolution is seen to be the Law of Suspects.

The Law of Suspects of 17 September 1793 is a model of concise drafting, but we sometimes find that the more concise a law is, the wider and the more unpredictable is its effect. Clause 1 said: ‘Immediately after the publication of the present decree, all suspected persons within the territory of the Republic and still at liberty shall be placed in custody.’ Clause 2 says who are ‘suspected persons’. Well, the class includes ‘partisans of tyranny or enemies of liberty’, ‘those to whom certificates of patriotism have been refused’ and ‘former nobles’ and their families ….who have not steadily manifested their devotion to the Revolution’. That is to say – anybody that somebody in power does not like the look of. It is hard to imagine a more complete ‘enemy of liberty’ than the author of this law. The law does not say if these people are guilty of any offence, or how they are to be dealt with if they are – it just says that they shall be detained, at their expense, ‘until the peace’.

The French pride themselves on the economy and style of their drafting. Flaubert used to read some of the Code Napoleon each day to warm up on for his writing. (It is impossible for a common lawyer to imagine anyone doing that with any statute ever made anywhere.) The legal drafting during the Revolution may not have received the time and polish of later documents, but it was not long-winded. Most of the decrees are short and to the point and look like they might be addressed to issues of the management of a petanque club.

Clause 3 provided that each Watch (Surveillance) Committee (known as the Revolutionary Committee) is charged with drafting for each arrondisement ‘a list of suspected persons’, and issuing warrants of arrest against them, and having seals put on their papers. The ‘commanders of the public force’ receiving such a warrant must execute the warrant and arrest the suspect immediately. Clause 4 says a committee can only order an arrest if at least seven are present, and by an absolute majority. Clause 5 says that they are to be taken first to the local jail and then, under clause 6, transferred to national buildings. Clause 7 allows the prisoners to have their absolutely essential belongings, and says that ‘they shall remain there until the peace’ (which is not defined). By clause 8, the prisoners have to bear the expense of their custody. Under Clause 9 the Committee must give a list of arrested suspects to the Committee of General Security. Clause 11 allows courts to have detained in jail those who are acquitted before them – this clause makes no express reference to such a person being ‘suspect’. That is the whole law.

Like the decree about the Revolutionary Tribunal, this decree does not say that certain acts are criminal (against the law) – rather it just empowers some people to take some action against some other people without the intervention of a court. But what is clear is that if you had been refused your Civic Card – and we saw what the Paris Commune said about this – or if your Committee did not think that you had steadily manifested your devotion to the Revolution, they could cause you to be arrested and be held in prison indefinitely – without any charge having been made or even any breach of the law alleged; without any evidence having been required, collected, or tendered against the target; and without any intervention from any kind of judicial officer whatsoever. And all at the expense of the victim.

You would for example risk being suspected and therefore arrested and held indefinitely if you called someone vous or monsieur – even though that form of address was the spontaneous habit of a lifetime formed in a customary exhibition of courtesy throughout all classes in all of France.

There is nothing in the law that says that a suspect may be executed or otherwise punished for a breach of the law – it merely says that one class of persons may be detained for the duration, or until the peace. Some historians have believed that your being a suspect might of itself have led to the guillotine – this may have been so in fact, but not because of this law. It is not at all uncommon to find a law permitting a government to detain certain kinds of persons in a nation at war. During World War II, Britain did this with citizens of German descent, and the US did it with those of Japanese descent. These are called internment laws. Even Abraham Lincoln suspended habeas corpus for the duration of the American Civil War.

In England during World War II, there was a famous exchange on England’s highest court, the House of Lords, about a wartime regulation that gave the Secretary of State the power to detain a person if he had ‘reasonable cause’ to believe that person had ‘hostile associations’. If this issue should come before a court, say on a writ of habeas corpus, should the court conclude that it must be satisfied of the ‘reasonable cause,’ or was it sufficient for the Home Secretary to say that he believed that he had reasonable cause? The majority thought that a wartime emergency provision should be applied to make it effective rather than to have it weighed down with fine legal argument. They were also sensitive that they as judges may not have had access to security information gained as part of the war effort. They accepted the submission of the government and held that the opinion of the Home Secretary was enough.

Even at the height of the war, the case caused headlines by the terms of the dissent of a very famous judge named Lord Atkin. He objected to a ‘strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister’. He went on to say:

In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.His Lordship went on to say that he knew of only one authority to justify the reasoning of the majority – and he referred to the colloquy between Alice and Humpty Dumpty in Alice in Wonderland. This remark offended the majority, but not as much as his remark that ‘in this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I’.

Lord Atkin’s reasoning commands general acceptance today, but sensible courts make allowances for decisions taken in extreme emergency, which England plainly was when the man called Liversidge was detained, and also about the need for judges to show some respect for the separation of powers where the executive appears to be acting bona fide in issues involving security and intelligence during wartime.

But although the French law did not of itself lead people to the guillotine, and most of those detained under this law survived the Terror, its impact was huge. More than fifty places of detention were established in Paris alone within a few months. If the inmates wanted a bed, and not just a pile of straw, they had to pay. Within a short time there were about seven thousand detained in Paris, and the number for all France would rise to about 300,000. Many must have lived in fear of an outbreak of another lot of prison massacres like the September Massacres. Simon Schama painted a dark picture.

Even by the standards of the time, the Conciergerie was a wretched hole, a place which managed to engender phenomenal squalor within imposing architectural precincts (for it too was a former princely residence)…..many of the prisoners compared it to the lower circles of Dante’s Inferno, a house of vermin, smelling of sickness and ordure…..the vast majority slept a la paille, on straw, in tiny cachots, deprived of air and water, with no place to relieve themselves except the floor. After a while, prisoners ceased to care, sleeping by and in their own excrement, covered with lice and open sores. To vary the routine, they could walk together under the ogival vaults of the long sombre corridor known as the ‘rue de Paris’, watch the scuttle of rats and exchange gossip about the latest admissions.

 

So, in looking at Law of Suspects, we need to remember that it was an emergency measure relating to internment during and for the duration of the then equivalent of a world war that saw most of Europe intent on overthrowing the government of the French nation and assisting in the setting up of a replacement government that was almost certainly contrary to the wishes of a clear majority of the French people. Another thing to remember is that this kind of wartime measure may run across general notions of due process or civil liberties in ways that might fairly become the subject of reasonable differences of opinion between fair minded people. It is not reasonably open to express any such reservation about any similar measures taken as part of the terror in Russia or Germany.

Nor is there much point in talking about onus of proof. That notion is hardly determinative if lay people are asking whether they ‘suspect’ someone within the terms of the relevant law. If someone was charged with an offence, then under the general French law, those bringing the charge had to prove facts sufficient to found a finding of guilt. That was the theory, but the practice was different – for the most part, there was a kind of presumption of guilt rather than innocence, and a kind of onus fell on the prisoner to ‘beat the charge.’ There was a sense that the prosecutor, judge, and jury were all on the same team, and someone on the outer had real trouble getting back into safety.

If the Law of Suspects could not of itself lead to the guillotine, what did? Even now, a charge of conspiracy in many jurisdictions signifies that those behind the prosecution cannot produce hard evidence of a clear breach of the criminal law, and there are what might be called forensic advantages for the prosecution in following such a course. Good judges now tend to be skeptical of this kind of process, and some are not shy to say so. Well, if nothing else, Robespierre knew all about conspiracies, and the more time went on, the more he was inclined to see one. As early as 1790, the press had commented on his repeated references to ‘plots and conspiracies of which he alone held the secret’, but it took years for the boy who cried ‘Wolf’ to be called out.

The English historian the Reverend J M Thompson of Oxford University was very far from being down on Robespierre, and his assessments are balanced and well informed. In his little book Robespierre and the French Revolution, Mr Thompson made these remarks in the context of prosecutions of enemies of the Revolution:

His method was to construct from the speeches or publications of individuals or from the company they kept a common programme or policy, of which perhaps none of them was personally conscious, and to father it on them all. Thus when they were put on trial each found himself involved in vague charges, based on a casual word here, a conversation overheard there, or a piece of gossip started by some spiteful neighbour – charges which it was useless to disprove in detail, and which in their accumulated effect were fatal.

On what was a kind show trial for the followers of Hebert, Thompson went on:

Between their arrest and trial he [Robespierre] made several speeches denouncing the prisoners, and informing the public that, as soon as the Extremists had been dealt with, the Government would turn its attention to the Reactionaries. There was in fact no trial in our sense of the term, but merely an indictment of persons who must be guilty because the Government had decided that they were: the salaried judges and jury would give their assassination an appearance of legality, and the crowd could be trusted to applaud their execution. Such is the technique of dictatorship.

Those propositions have the odor of truth or, if you prefer, reality, and the methods described have a ghastly resemblance to those used in the Moscow Show Trials in the 1930’s.

Robespierre’s lieutenant in enforcing the terror was a cold, heartless young lawyer and ideologue named Saint-Just. Saint-Just had the blood of Lenin in his veins. He said that ‘we must rule by iron those who cannot be ruled by justice. You must punish not merely traitors but the indifferent as well’. A colleague on the Committee of Public Safety, the crippled Couthon, was fond of asking: ‘What have you done to merit being hanged if the counter-revolution comes?’ Saint-Just was called ‘the angel of death’. The execution was referred to as the ‘Red Mass’, ‘spitting in the sack’, or ‘peeping through the window’. The presumption of innocence was as good as reversed. Robespierre said: ‘Whosoever trembles at this moment is also guilty.’ He had also added ‘trial by conscience’ – an intuitive decision rather than a reasonable one; the accused could be convicted for attitude as well as actions. How Rousseau would have applauded! In one speech, Robespierre gave the essence of paranoia – ‘Look about you. Share my fear, and consider how all now wear the same mask of patriotism.’ The good looked just the same as the bad.

Saint-Just said that ‘the very resistance of these scoundrels proves their guilt’. Couthon said ‘moral proof’ was enough – ‘for a citizen to become suspect, it is sufficient that rumour accuses him’. When the prosecutor said that there was not enough evidence to convict all of the Cordeliers, Saint-Just gave a short response – ‘Amalgamate’. Take them as a job lot.

We can trace a line of conspiracy allegations. Camille Desmoulins took exception to what Brissot had said in his propaganda journal, Le Patriote fancais, and he wrote an article in reply attacking Brissot for defending gambling – Desmoulins thought that Brissot was not a true patriot on that account. He went further and called him a traitor. Fifteen months later, Desmoulins launched a more comprehensive attack, The History of the Brissotins. He now alleged conspiracy and Brissot was expelled from the Jacobins. He had the ultimate answer of the ultimate conspiracy theorist from Brissot himself: ‘It is absurd to ask for hard evidence and judicial proofs that one has never had. Not even in the conspiracy of Catiline, for conspirators have never been in the habit of letting evidence against themselves be open to discovery.’ The less evidence there was, the deeper the conspiracy had to be! Desmoulins raked over all their record – and if you look at history in a certain way, it may tell you want you want to hear.

Desmoulins then claimed to be shocked when the charges of conspiracy that came to be laid before the Revolutionary Tribunal relied so much on his work. Then some of the Brissotins fled, and even Saint-Just would have spared some: ‘You must distinguish between those detained; most were misled; and who among us can flatter himself that he was never deceived? The true culprits are those who fled…..Proscribe them not for what they said but for what they did; pass judgment on the others and pardon the greater number.’

When it came time to judge Desmoulins, Saint Just was more than happy to judge the accused for what he had said, and there was none of that softness about people being deceived.

These people, who for four years have conspired under the veil of patriotism, now that justice is closing in on them repeat the words of Vergniaud [a Brissotin]: The Revolution is like Saturn, it will devour its own children. Hebert repeated these words during his trial; they are repeated by all those who tremble as they see themselves unmasked.

Saint-Just would be one of the last children of the Revolution to be devoured. He did not tremble; but neither was he heard in his defence. The republicans loved invoking Rome, and Cicero, especially Camille Desmoulins. Catiline was a bad politician and a worse leader whose hair-brained conspiracy was almost suicidal. In one of the few decisions of substance that Cicero took, Catiline’ s supporters were executed without trial – something that even Julius Caesar thought was a little strong.

As time went on, hardly anyone beat the charge. The process became so much more formal and peremptory. People were dealt with in batches – the charges were ‘amalgamated’, a favourite technique of Saint-Just, and toward the end the prosecutor could invite the jury to say that they had heard enough to satisfy their consciences. Paris looked like a lynch mob hungry for prey.

We have seen that under the Law of Suspects, an accused person who did beat a charge could still be detained under that law, and that was certainly a course open to the NKVD or Gestapo in the very rare cases where the prosecution simply failed. The whole purpose of the revolutionary or peoples’ tribunals was to stop that kind of accident happening. Civilized legal systems say that it is better that some guilty go free rather than that one innocent person should be imprisoned; the revolutionary regime or police state takes the very opposite view – and the very words ‘innocent’ and ‘guilty’ had very different meanings for those enforcing what purported to be the laws of such regimes.

When Benjamin Constant asked who had not been denounced since 14 July 1789, he went on: ‘After seeing Bailly and Pache, La Rouchefoucald and Marat, Condorcet and Saint-Just, Sieyês and Robespierre become the targets of the same accusations, can one still believe in Revolutionary reputations?’ It is a fair question. It had got to the point where it looked like the revolution was the source of its own conspiracies. For every action there would be a reaction. Suppressing one plot led to others. There was a cycle of vendettas, witch-hunts and pogroms, and people settled personal scores in the name of a political objective. In the words ‘Share my fear, and consider how all now wear the same mask of patriotism’, we come close to heart of the three regimes looked at in this book.

In The Russian Revolution, Sheilah Fitzpatrick said this:

Suspicion of enemies – in the pay of foreign powers, involved in constant conspiracies to destroy the revolution and inflict misery on the people is a standard feature of the revolutionary mentality that Thomas Carlyle captured vividly in the passage on the Jacobin Terror of 1794…..In normal circumstances, people reject the idea that it is better that ten innocent men perish than that one guilty man go free; in the abnormal circumstances of revolution, they often accept it. Prominence is no guarantee of security in revolutions; rather the contrary. That the Great Purges uncovered so many ‘enemies’ in the guise of revolutionary leaders should come as no surprise to students of the French Revolution.

After all, the French have a saying: Plus ca change, plus c’est la meme chose.