Nuremberg. The Facts, the Law and the Consequences.

As I am a keen reader, this is probably my primary hobby, I have been keen to consider the ecological impact of my pastime. I had thought that e-books might be the greenest option as they saved the trees and the water that went into making the paper counterpart. But after further reading it was clear that the situation is not as simple as this. E-books require a considerable infrastructure, as well as the manufacture of the device to read them, and also have a fairly large carbon footprint. It is sobering to think that about 10% of all the electricity used at present is used maintaining the internet’s functioning.

Fortunately, I was able to abandon my attempt to work out which book type was greener (this was proving almost impossible to ascertain) as I suddenly realised the simplest answer. The greenest book for me to read was and old paper book that was either about the house, or in the second-hand shop, as its ecological impact has already been spent when I, or someone else, first purchased it. These were now ‘waste’ and I can recycle that by reading them.

This also had a second valuable impact. I often find, when trying to decide what to read, that I get into ruts. I read similar books to ones I have just enjoyed, or I purchase something that is creating waves in the news, so I join the rut that everyone else if furrowing. If I read books I found in my own house, or in second-hand shops, my choice would be limited to what is available. It might throw me some surprises as someone else’s original choice may have been better than mine.

This is how I found this title. Nuremberg. The Facts, the Law and the Consequences.
This was published in 1947 just after the war trials and was written by Peter Calvocoressi. He had been a lawyer, and intelligence agent, who during the war had worked in Bletchley Park on the Enigma Project. After the war he had worked as a member of the British prosecution team in the war trials. The author and the timing mean the book is written with a great deal of first-hand experience and knowledge, when this knowledge was fresh and not tainted by the patina of retrospection.

It is a small unprepossessing book. Its plain maroon cover and small type face give little away but inside is a fascinating story of the development of the war trials. It is clear that the victors in the war were worried that these trials, though necessary, may be open to scrutiny as they could be seen as Victor’s Justice rather than following accepted moral principles. For example there is a chapter on the “Indicted Organisations“, as a lawyer, Calvocoressi clearly had problems with the “obvious difficulties in any allegation of guilt against a group as opposed to an individual” and this chapter is at pains to clarify why this would not occur in the Nuremberg trials. Further problems arose with the limitation of accusation to Germans. It was worried that the exclusion of the Allies was a risk, war crimes may have been committed by them too (E.g. Dresden, Hiroshima), but these were not considered. The Italians were excluded as the translation implications would have been considerable. There was concern that these exclusions may have made the War Trials open to criticism in the public arena. However, the morals and legality were openly discussed and debated. It appears that while there was an appetite for justice there was not, thankfully, and appetite for revenge and retribution at any cost. There seems to have been the recognition that, after the horror of years of war and Nazi atrocities, it was more important than ever to find universal principles of Law and Justice that we can all follow. I am glad I found this book as it would be a shame, if three generations later, we start to loose sight of these Universals, because as the author states “Principles become rusty if ignored“

Three rolls of fencing.

I was on pleasant walk to post a letter this afternoon when I had an opportunity for a short thought experiment. As I walked along the road, with the dog, I noticed that the fence at the side of the road had been removed in preparation for being replaced. Every hundred yards or so there were neatly stacked piles of fence posts and rolls of fencing; some new and some tidily rewound ready to be reused. Everything was left ready for tomorrow’s task of refencing a large field.

I looked at these piles of equipment and recalled that I need to refence or middle field and will need to do this next month before I am able move the sheep. I then had the ‘thought experiment’ – “Why don’t I steal the fencing?”. This equipment, like so many other pieces of farm equipment, had been left here unguarded and with no protection, why don’t I just take some? If would be so easy just to lift it up and take it home.

The first reason I considered was that perhaps I didn’t need or want this stuff. This was easy to dismiss. Fencing is an never ending job on farms, a bit like painting the Forth Road Bridge, once you get to one end it is time to go back to the beginning and start again. Nor was it because this material is so inexpensive as to not be worth stealing. Although fence posts are relatively cheap, the fencing itself is reasonably dear and this is a noticeable cost in the farm budget. These weren’t the reasons.

I then considered the law and issues of crime and punishment. I knew that this was against the law, as taking without permission would be stealing. However, this would only influence my decision if I had a chance of falling into the hands of the justice system. In other words, it would only be an issue if I might, possibly  be caught. The risks of this were really quite negligible. One bit of fence wire is much like any other and who would be able to prove that this was not my wire once it was on my land. No, if I stole this wire punishment by the legal system would not be my biggest concern. Punishment in another way, however, might well be the reason.

The obvious reason I don’t take the wire is because I know it is wrong and that if I acted wrongly I would feel bad. The anticipation of guilt is the main barrier to bad actions. This guilt is modulated by a number of factors but, in today’s walk, community seemed to be the biggest modifier. I know who is repairing that fence. I know who would be hurt by my actions. I know that they, like I have, had left things out because they trust that their neighbours will behave well. My guilt would be even worse if I broke this trust. My knowledge of who was involved was the biggest factor in my decision. If I did steal from them,even if they never found out I would know. This knowledge, that I had stolen from them, would be corrosive to my soul and very difficult to bear.

All our lives, from when we are able to be independant, we are trying to balance the drive to keep our individuality whilst seeking to enjoin ourselves in community. Our first step is usually to find a partner, then to create a family, while all the time trying to find a community, or kinship group, in which to thrive. It is no surprise that the Lord’s Prayer asks for “our daily bread”, rather than “my daily bread”, and to pardon “our trespasses” not “my trespasses”. We only exist, as people, when we are in relationships with others. John Donne described this well in his poem “No Man Is An Island” :-

No man is an island,
Entire of itself,
Every man is a piece of the continent,
A part of the main.
If a clod be washed away by the sea,
Europe is the less.
As well as if a promontory were.
As well as if a manor of thy friend’s
Or of thine own were:
Any man’s death diminishes me,
Because I am involved in mankind,
And therefore never send to know for whom the bell tolls; 
It tolls for thee. 

But as we build bigger and bigger communities there may be a cost. The anthropologist Robin Dunbar estimated, that due to the limitations of the size of our cortex, we can only get truly to know between 100 and 200 people. This number, usually rounded to 150, is Dunbar’s Number and is the limit of people we can know in any real and significant manner. Above this number,  communities start to require stricter rules and regulations to ensure good behaviour from its members. Above this number, the knowing interaction between individuals, and filial feelings, can no longer be relied upon to ensure decent behaviour.

I found the idea of stealing the wire “unthinkable” and I believe in part this was due to my temptation occuring in a smaller community. Were I tempted in a larger group, with anonymity for me and for my victim, I am not sure I could be relied upon to behave as well. Those of us who wish people to behave well, to seek out the good, and to become better people need to think about this. Rather than devising more, strict rules, which might more strictly control behaviour, but at the expense of weakening moral abilities, we should perhaps ensure that our communities are small and human sized. In larger communities there is a danger we become a myriad of individuals, in a huge shoal of individuals, requiring supervision to ensure we don’t harm one and other. In smaller communities the instinctive urges we have to look after ourselves while working cooperatively with our fellows are well balanced and effective.  Larger societies don’t just end up concentrating power they need to concentrate power and it is for this reason that we should resist this danger.

There should be a law against it.

My social life has changed. When I was young and energetic it often involved travel, excitement and fun. I recall evenings of humour, laughter, risks and the promise of passion. Now that I am old this has largely gone. My social events are now much more stolid and staid events. They increasingly consist of groups of people bemoaning the state of the world and the behaviour of those in it. Now I enjoy a moan and groan as much as the next carnaptious codger, and am no stranger to “in my day” or “when I was a lad” rants, but I have been rather concerned by a trend to accompany all these observations of current annoyances or inadequacies with a call to legislate against them. All problems, it seems, could be solved by a piece of legislation ; puppy farming to pollution, racist language to rioting, surly service staff to sexual impropriety, all we need to do is to draft the appropriate legislation and hey presto, problem solved. Really, there just should be a law against it!

Now I find this zeal for legislation rather strange. The people calling for these laws are clearly so upset by the behaviour that they witness that it has made them blind to the obvious. They bemoan the behaviour of others that they find shameful or abhorrent and stress that, during their lives, they have never done such a thing. That, during all the great many years they have lived, they have ensured that they never fell into such antics and there needs exist a law to protect people from making such errors. But during their illustrious lives there was no law against it. They managed to behave well without the cordon of law to protect them from error. They managed to get to late life avoiding killing, assaulting, cheating or conning their friends and family.

If they did not and had indeed lived a life of irresponsible abuse and debauchery, leaving a wake of victims and damage behind them, then perhaps we could respect their calls for new laws. If it were murderers and rapists calling for tougher legislation them perhaps their experience should guide us. If criminals start to say that an inadequacy of laws is the problem we should prick up our ears. But it is not, it is well meaning and well behaved people who are living proof that one does not need law to live well who make these statements. They managed to see actions were wrong and avoided them but feel others will not be as morally capable, as they are, and need laws to guide them. No law constrained their behaviour but others need laws to hold their desires and impulses in check.

The vast majority of us live our lives trying to live well. We try and pick a way through life which benefits us and our fellows. We have a moral code within us, of which we are to greater or lesser extent aware, which guides our actions and informs us of what we believe to be right or wrong. This internal code is in play for the vast majority of mankind for the vast majority of the time we only require the law for the very small number of times that this fails. Our internal code is much more important to us and ultimately takes priority over any law in any event. We know this code and it is always available to us, so it is this that we use as our guide. We do not use a lawbook to guide us, except when we are entering very strange and uncharted territories. We can enter into nearly all situations and deal with them if we have a clear internal moral view of the world.

Rather than making more and more calls for legislation we should look at this another way. If we feel people are prone to behaving badly we must presume that they don’t share the same code as ourselves. If they have a moral code but it differs from ours we should listen and find out why. Perhaps they are right, and it is we who need to change. (When the abolitionists or pacifists broke the laws and transgressed what was the common moral code they were not in fact wrong. The majority was in the wrong as time came to show). If it is not that they have a different code, but rather that they have no, or an inadequate code, then law is still not the answer. The answer is surely to try and rectify this deficit. But here we are in very dark and treacherous waters as we are in the area of moral instruction – teaching people, especially the young, how to be good and moral people.

In a secular society we are rather afraid of ideas like this as it carries ideas of religious authority. It is perhaps why we shy away from the idea of helping children, and others, learn what is right and what is wrong. We prefer to say that “it all depends” and there “is no absolute right or wrong” and hope that everything will work out for the best for everybody. But one could argue that a secular society need to consider moral instruction even more carefully as does not have any Divine guidance to call upon. But perhaps this is precisely why there are increasing numbers of grumpy old people collecting in groups, looking at society and lamenting the changes they see and clamouring for “a law against it”. Perhaps I must blame this change for my poorer social life.

It we want a better world we need better people. If we act by making more and more of our moral code external to us (by defining it in law) our own moral faculties will atrophy and weaken through disuse. We should aim to make ourselves better as individuals so there is less need for law rather than allow our baser natures to be our guide and relying on other to keep us in check by regulation as this is the way to totalitarianism and there can be no law against that!

That would be doubleplusungood.

I sometimes fear  that we will need to radically rewrite our dictionaries in the near future as so many of our words are dropping their old, negative definitions for new, positive and  winsome meanings. It is not, for example, unusual to hear a phrase such as “go on, indulge yourself, you deserve it” on an advert  on the television. The modern use of indulge is the components of luxury or tolerance. Any former ideas of postponement of a debt or deferment of a sin has largely been lost. Similarly words such as “pride“, which was previously something to be avoided, as one of the seven deadly sins, are now seen as positive attributes to one’s character.

Common words such as health can come to mean their opposite when allied with the word “mental”. It is not unusual to hear he suffered with “mental health” (instead of illness) and  “we are all affected by mental health” (When unfortunately this is not the case and many of us suffer with mental illness). I fear the stigma associated with mental illness is so great that people are even fearful of saying the word and will try all forms of verbal gymnastics to avoid it.

It is to be expected that words change their meaning over time as fashions and social mores change. In an increasingly secular world it is not surprising that many words which previously had a religious connotation are now pressed into service for more profane uses. As our technology and lives change we need words to communicate our new circumstances and it makes sense to bring older antiquated words out of retirement and disuse, and dust them off, before pressing them into use in contemporary conversations. Although I am a bit of a pedant, and I do like the original meaning of words recalled, I am happy to see drifts and changes in the language allowing us to communicate freely. I would not wish to think that words should be preserved in aspic as this is a sure route to the demise of conversation and understanding.

However, there are some words which are so important in the meaning they bestow that they should only be misused with great care. In his excellent novel ‘1984’ George Orwell reminded us of the power of words, and in particular the power of words when misused  to entrap and imprison us. Big Brother altered the meanings many words,  through the development of Newspeak , as they were aware this was a source of political power. Nowadays, it seems that we are rapidly learning Newspeak and words such as sexcrime and crimethink seem very prescient.

Two such words are ‘Shame’ and the related word ‘Guilty’. Shame used to mean the painful emotion we felt when we were aware that we had not lived up to our standards, when we experienced feelings of guilt or disgrace because we had behaved badly and to a level below the standards to which we hold ourselves. Shame is increasing being used as a verb meaning to make someone feel ashamed and often tagged onto a preceding word – fat shaming, slut shaming, body shaming, and so on. However, it is often the case that it was not shame that was sought but rather advice which was offered. It is no great surprise that the commonest people responsible for fat shaming are family members and doctors, people who have a vested interest in aiding someone who is obese or overweight and are least likely to wish to insult or distress them. People are not trying to shame someone but rather to advise or counsel them. It is true that we wish to avoid or get rid of shame, but not by banning the attribution, but rather by living and behaving in such a way that we do not feel ashamed by our actions.

This current strategy seeks to put the distress on the person who notices the sub-standard behaviour rather then on the person who has fallen short of their own standards. If I am happy with my behaviour and feel it accords with my view of what is right and proper, it does not matter one iota how you criticise me, I will feel no shame. I can only feel shame when I fall below my expectations not yours. I can only feel shame when I agree I am in the wrong, if I disagree I feel wronged or misunderstood not ashamed. You cannot shame me unless I share your thought that I have done something wrong.

‘Guilty‘, however,  is the word being treated in the most egregious manner. In our connected and on-line world it has almost come to be synonymous with ‘accused’ . Previously there was a chain of events – an accusation was made, an assessment of the facts undertaken, all parties explained their actions and finally, after consideration, someone was either found “Guilty”  or remained Innocent. This is what would be loosely called “due process“. To be guilty of some wrong deed is to be found responsible and culpable and is a major step, a step all civilised societies have found should only be taken after due process.

The nightmare of living in states where an accusation is all that is required to make one guilty is well known and is the hallmark of the totalitarian and barbarian. Over the millennia we, as a species, have learnt that it is vital that people should have the presumption of innocence and we should only call people ‘Guilty’ after a rigorous  and fair examination of the fact. Too often today, in cases of child abuse or sexual abuse, people are quick to name someone as Guilty before due process has been had. On social media and the internet many are happy to condemn people as guilty without an exploration of the facts. Campaigns are often mounted to shout the word “Guilty” to the world before any trial of the evidence has taken place. The campaigns accuse and the media condemns before any justice can be obtained.

This often occurs in the most heinous of accusations (child abuse, rape, etc) but it is because these are the most disgusting and dreadful acts that it is especially important to ensure due process. While we must do everything possible to find those that commit these acts, hold them culpable, and punish them, we must be careful that we do not punish the innocent. To label an innocent party guilty of acts such as these is a crime on a par of severity with the acts themselves. Although it may be difficult to swallow, especially at times when the desire for revenge is high, but Blackstone’s Formulation is a true foundation for a safe and civilised society :-

“It is better that ten guilty persons escape than that one innocent suffer“

When we interfere with this viewpoint we place everyone in danger. No-one would be able to sleep at night if all it took to become guilty was that someone accused you.  What about the snubbed friend, the disgruntled employee, the querulous neighbour ? Our innocence is a precious thing and should not be able to be tarnished without very good cause.

 

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That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved.

Benjamin Franklin, 1785

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Hounded to death.

It is gingerly, and with a great deal of trepidation, that I write today’s post. I have been struck by the awfulness of Carl Sargeant’s death on Tuesday when it appears he took his life after having been accused of misbehaviour and having lost his government position. Now, I don’t have any great affection for politicians and did not know a great deal about  Mr Sargeant before this event so why has his apparent suicide affected me ?

Firstly because it is a very obvious reminder of the terrible damage we are doing to our society and the rule of law by the ongoing hysteria in the media about sexual abuse and politicians. Clearly I would want to see any politician, of any hue, who abused any other person dealt with and punished appropriately. The promise of power and influence, that the world of politics offers, means that it will attract more than an average amount of psychopathic individuals. Therefore it is quite reasonable that we may find an above average number of people who are guilty acts of abuse in our governmental bodies. But, equally clearly, I only want guilty people punished and shamed. This distinction is one of the hallmarks of a civilised society where rules are just and punishment only justly applied when it is warranted.

One of the earliest legal treatises was the Mishneh Torah which was an attempt codify the bases of Jewish Law. In the early attempt to tease out guiding principles for a fair and just society the great philosopher Maimonides wrote :-

“It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.”

as he was aware that to do otherwise was the start of a slippery slope which lead to a lawless and unjust society where conviction, not being based on an adequate burden of proof, could lead to punishment on the basis of a whim of courts and rulers. This has also been referred to as Blackstone’s Formulation after he stated “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer“.

This principle should be considered alongside another, related legal principle, that is, the presumption of innocence. All legal systems hold this principle dear. Roman law states “ei incumbit probatio qui dicit, non qui negat” (the burden of proof is on the one who declares, not on one who denies), and Islamic law, Common Law and the Civil Law all carry this basic tenet. As the public puts it “Innocent until proven guilty“. This is a principle that keeps you and I safe : we can only fall foul of the law, and be punished, if we are found guilty after trail not simply by accusation.

In the Carl Sargeant case he was treated as if her were guilty before he had a hearing. He lost his position and was treated by Carwyn Jones, The First Minister of Wales, as if the accusations were true. This is the  habit, increasingly popular, of jumping to the conclusion that accusations are truth. It is this approach which  underpins such campaigns as #IBelieveHer. Now it is understandable that we want to increase the justice for those who are victims of any form of abuse but this strategy is very dangerous. If we believe the accusers without question what is the need for a trial ? If we believe the accusers then the only thing missing is retribution. This leads us to a very dark place where people can be destroyed by malicious accusations.

 

 

This photograph, might explain my concerns about this. This is a group of Welsh special advisors out for the evening celebrating on the night that they had just started the ball rolling on the case against Carl Sargeant. These are the expressions just after they have opened the floodgates of innuendo and suspicion. A colleague and erstwhile friend has been thrown to the dogs and this photograph reveals their feelings that very evening. When accusation becomes proof, accusations become dangerous and powerful political weapons which some people seem to enjoy using.

This is not the only legal principle that was ignored in Carl Sargeant’s case. He was never given details of the accusations nor knowledge of who his accusers were.  Again in English Law, Roman Law, and also the Sixth Amendment of the United States this is a ignoring a cornerstone of justice. In the Bible, when Paul was accused, it was described thus :-

“It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.”

If one does not know the accusations, nor your accuser, you are effectively denied the opportunity to defend yourself. If you can not defend yourself you cannot receive justice. It has long been known that ignoring this principle would lead to injustice and would facilitate terror. The oppressive, nightmarish qualities we try to explain when we use the term “Kafkaesque” , relate to being on trial but ignorant of your accusers and their claims as so well described nn Kafka’s novel Der Process (The Trial). Secret accusations, secret courts and clandestine meetings have always been the way of the power hungry who wish to subvert justice. In this particular case it seems that it has gone further than this as there were also meetings with the accusers when their stories were discussed with all the risks of contaminating evidence of any wrong doing. This is very reminiscent of the history of the Stasi, or the Gestapo, collecting accusations so that they might prove useful against political enemies in power struggles at a future date

Carl Sargeant did not know of what he was accused nor do we. We know that it could not have been sufficient to warrant police involvement. It is likely that it was behaviour that is deemed inappropriate in our present moral climate. He might have behaved in a manner more in tune with an older generation than the present. If this is the case then it is probable that a further legal principle is  in the process of being ignored – we can only be tried for offences against the rules that applied at the time. Guilt can not be backdated. If tomorrow they pass a law outlawing drinking alcohol on Sundays,  it is this principle which protects me against them coming and punishing me for last Sunday’s drinking. I am obliged to follow the law as it is just now, not as how it might be in the future. Without this principle we could all be facing punishment in the future for some act which is not a crime at present – did you spank your child ? Did you smoke in a public place ? etc etc.  The same guideline should be used when we consider social mores and customs.

For all these reasons the story of Carl Sargeant is a sad and worrisome tale. He did not receive fair justice and now never can. We will never know the truth of these accusations as they can not be tested now that he has died, so justice will never be served. These principles are not minor bureaucratic foibles but are the foundations of our enlightened society. For the sake of all those black men lynched in the South in America, denied a trial and presumed guilty on the words of their accusers, we must fight for these principles. For the sake of all the women accused of witchcraft and killed never able to confront their accusers we need to remember how important these principles continue to be. For the sake of the very many women who are going to be accused of adultery, or other crimes in the middle east, and face death just on the basis of an accusers word we need to promote these ideas and promote civilisation.

Carl Sargeant worked hard for his community and tried to improve the world by his work in politics, I hope now that he can rest in peace. Hopefully his family will also find peace and perhaps, in time, they may see that his sad death contributed to a turning point when society turned its back on hysteria and witch hunting.