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By Graham Hill
MA (Hons) Ll.B (Hons)
The rule of law (RoL) is one of the important gears that mesh with several others to form the machinery of Western civilisation. Niall Ferguson in the West and the Rest has called it one of “the Killer Apps" accounting for the success of the West and why societies in the West that are sought after by people who wish to live in them. The RoL gives certain efficacy to the working of our society in terms of commercial, political and social relations. It encompasses political and legal values including human rights. Societies and cultures without the RoL, or with a severely fractured one, have issues with corruption, lawlessness, and clan-like violence; possessing arbitrary, relativistic and unpredictable legal systems; the serious loss of justice for the individual; and political issues in which there is little or no trust between governed and governors.
The RoL has also suffered in the West from erosion from indifference, ignorance and ineptitude. But for some time the RoL has been under siege from without by Neo-Marxism and its derivative, Cultural Marxism. The nadir has been reached where mental ‘trauma’ and the “oppression” of feelings is felt.
Instances in the detaching or casting off of the RoL in favour of an ideological Neo Marxist religion have featured in the media. We turn to examine some of these for what they disclose about the state of the RoL.
First, Chris Cuomo, a CNN anchor in defending ANTIFA violence in August 2018 could unabashedly state: “ Fighting hate is right. And in a clash [physical violence] between hate and those who oppose it, those who oppose it are right... It is not about being right in the eyes of the law, but you also have to know what’s wrong and right and immoral, in a good and evil sense.” This is akin to a religious fiat for violence: violence is given the ‘Green Light’ if your relativist group or tribal narrative defines a term like ‘hate’ and says that it is wrong. First, this is an indication of a loss of a socially accepted standard. Secondly, what we are observing here is a tribal self-defining James Comey like “higher calling”, something normally the exclusive province of religion.
Secondly, the nomination hearings for Justice Kavanagh to fill the vacant seat on the Supreme Court of the United States, displayed a similar detachment. The hearing’s process is worthy of a book in itself. Robin Pogrebin and Kate Kelly are said to be writing one. Saliently, the Judge’s detractors were ready to cut loose due process, fairness, the presumption of innocence, equality before the law and the principles of the law of evidence. Emily Yoffe put the issue well in an article in the Atlantic (3 October 2018) when she said:
But when a woman, in telling her story, makes an allegation [of sexual assault or rape] against a specific man, a different set of obligations kick in.
Even as we must treat accusers with seriousness and dignity, we must hear out the accused fairly and respectfully, and recognise the potential lifetime consequences that such an allegation can bring. If believing the women is the beginning and the end of the search for truth, then we have left the realm of justice for religion.”
Thirdly, in mid-May of this year, a further assault on the RoL was directed at Harvard Law Professor Ronald S Sullivan, who is African American, and director of the Harvard Criminal Justice Institute. He and his wife (also a lecturer in the Harvard Law School) were also the first African-Americans to become Harvard Deans of Faculty. He has come under assault by students having been asked to be part of Hollywood’s Harvey Weinstein’s legal team. This was a role outside of his Harvard duties. Joanna Williams in Spiked (14 May 2019) had this to say:
“Unusually, Sullivan’s ‘trauma-inducing’ sins against the sensibilities of undergraduates did not occur in the lecture theatre or indeed anywhere on campus. He neither misgendered students nor told them to sort out their own choice of Halloween costume. No, his crime has simply been to do his job.
Sullivan practices law; the knowledge and experience he gains from being at the forefront of his profession are passed on to students fortunate enough to be studying at Harvard’s elite law school. Over the course of an impressive career, he has advised Barack Obama, represented the family of Michael Brown in their suit against the city of Ferguson, Missouri, and overturned more than 6,000 wrongful convictions. Only it is the very business of the law, the need to defend people accused of crimes, the need to assume defendants are innocent until proven guilty, that has proved too much for students to stomach.
…The public denunciation of Weinstein ignited the #MeToo movement. For some of Harvard’s students – and staff – Sullivan’s decision to act in defence of Weinstein is not a legal duty and a professional responsibility, but a moral outrage that needs to be stopped. They have started petitions, held demonstrations and conducted rallies calling for his dismissal”
(Spiked, 14 May 2019)
The fundamental legal principle involved was a defendant’s right to have legal counsel of his or her choosing and to be represented at trial. In New Zealand legal counsel is acting for Benton Tarrant, so Professor Sullivan was acting for a defendant by assisting his legal team. Criminal law can be difficult and the rules of evidence need to be properly understood. A defendant faces the power and deep pockets the state. Professor Sullivan had neither broken the law nor acted in a reprehensible manner towards students. The professor could not be removed from his Law Faculty job, so his role as a Faculty Dean was put in issue. The professor and his wife (the collateral damage) were subsequently sacked, as Faculty Deans of Winthrop House, a hostel for undergraduates, by the university's Dean, who had capitulated to student's trauma and mental health risk induced by the professor’s mere presence.
Joanna Williams goes on to expand on the issue of mental trauma:
“Danukshi Mudannayake, the student who has led the campaigning, argues that Sullivan’s decision to represent Weinstein is ‘not only upsetting, but deeply trauma-inducing’, and it shows he ‘does not value the safety of the students he lives with’. [H]e cannot simultaneously hold that role while still having a charade of saying that he can actually protect the integrity of his students.’ Kacey E Gill, president of the Association of Black Harvard Women, said she was relieved and happy to hear of Sullivan’s departure, but added ‘I wish that it hadn’t taken so long’ or that it ‘required so many students to put their mental health, wellbeing, and potentially even their futures on the line in order to get that change to occur’.
Students have come to accept a ludicrously wide definition of trauma. There is not the slightest suggestion that Sullivan poses any danger either to the students he comes into contact with or anyone else. Sullivan does not stand accused of rape or sexual assault. The threat students think he poses is not physical, but mental. Students have come to believe that ‘trauma’ occurs not as a result of something catastrophic happening to them, nor even from having hateful words directed at them, but from the mere presence of another person in their vicinity. Even this understates their bizarrely elastic understanding of trauma. Harvard is not offering refuge to Weinstein, the rapacious folk monster of our times, but employing, in a professional capacity, his lawyer. Yet Sullivan’s presence is considered by the students to be sufficient to create a ‘toxic climate’. All of this begs the question: where are the adults?"
(Spiked 14 May 2019)
It does indeed. The RoL should not be set aside because of an ill-defined student misperception of what trauma (not classified in DSM V) is, which is said to come about from an appointment unrelated to the Dean’s role Winthrop House. An instance of purity in danger by contamination of a human agent. If the university authorities at Harvard do not comprehend the RoL then what hope is there for other institutions? This not the real world but again a trespass into the realm of religion in the Cultural Marxist self-fulfilling oppressor/oppressed dialectic of the Woke: the dialectic is the Truth and the True Way. The rule of law is based on human standards iterated and proven fit for use, over time. That was the approach, Daniel J Boorstein tells us, of William Blackstone who abhorred Enlightenment idealist theory as the basis of practical day to day law. The Woke are divorced from the past and the world of practical experience having a “Cloistered” tunnel vision of a future religious ideal. The RoL may not be perfect but it is far better than a capricious judgment based on feelings, idealistic predetermination based on some ineffable “higher calling” and a misconceived fetish of trauma.
What is shown by the university’s response, and by the student’s errant protest is a woeful arrogant ignorance of a vital facet, of the underlying legal principles of a free and civil society. These principles of the RoL are then substituted by a visceral religious judgment by the irrelevant health concerns of students’ who are unrelated to, and have no proximity to the Professor’s defence counsel role. The students religious tremors, all derived from the numinous and subjective mysterium tremendum of feeling, trumped the RoL.
To put the matter on a different footing, how could Harvey Weinstein , if sued in tort by the students, have foreseen the students’ trauma? The question does not bear a second glance. Williams adds to the legal principles at stake:
“Acquiescing to students campaigning against Sullivan has consequences beyond the university. It also calls into question our understanding of fundamental principles of justice, most especially the idea that those accused are innocent until proven guilty and so, in order for justice to be best served, require a rigorous defence. Students crying trauma at Sullivan first assume Weinstein’s guilt, then mistake a defence of Weinstein for a defence of his alleged crimes. They assume defending an alleged rapist is a defence of rape. Again, where are the adults to tell them they are wrong?
(Spiked 14 May 2019)
RoL principles must prevail over the ignorance of the Neo Marxist/Cultural Marxist Woke: the presumption of innocence, the right to a fair trial and the principle that justice to be done needs to be seen to be done are fundamental, which was not the case, to give a historical example, of the trial of the Regicides, or if you prefer Geoffrey Robertson QC’s term, the Tyrannicides, of Charles the First. Is lynching, hanging and drawing and quartering before the University of Harvard’s Registry or Faculty of Law preferable? On this last point Joanna Williams rightly concludes:
It is in the interests of everyone to have justice done, and that means a trial with a proper legal defence. Harvard’s decision comes just a day after Sullivan announced that he would be leaving Weinstein’s defence team. Yet the better the defence, the more secure a conviction. If due process cannot take place, then we risk criminals going unpunished and the innocent being incarcerated. Cries of trauma must not be allowed to undermine the legal system.
(Spiked 14 May 2019)
The guardians of the rule of law in the current freedom of speech issues presently before us are silent. The Law Society last year censored in its publication Law Talk citations to Jordan Peterson. The Feminist Judgments project went by without notice from the profession and has considerable RoL implications. The Feminist judgments project in terms of the RoL may well be an oxymoron given feminism’s debt to Neo-Marxism which underwrites identity politics and ideas of intersectionality. That is an article for another time. My own experience of approaching two senior members of the NZLS Privacy and Human Rights Committee on a rule of law matter was met with no reply. The abrogation of concern is woeful.
Has the Law Society turned to the new religion, with its Equity Charter, and become absorbed and oblivious in the new faith too?
It’s only fair to share! :-)
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