This report (quoted below) from Friday’s Independent, has quite rightly attracted the opprobrium of several bloggers including Justin (Chicken Yoghurt), Jeremy (My Way Of Thinking) and Mark (Longrider).
A day earlier, Mr Blair had told MPs: “We do not agree with the use of torture.” Pressed over whether that was an absolute rule, Mr Blair added:
“I mean absolute in this sense, that you say ‘Look, it is simply the civil liberties of the suspect, or simply the liberties of freedom from terrorism’. You have to balance those two things.”
He went on: “Of course there are absolute rules that we have about torture, or about the death penalty for example … I do not accept that the anti-terrorist measures that we have been introducing transgress that.”
A statement that Justin quite wonderfully satirises as:
What a whacky topsy-turvy world the Blair household must be. “Fish for tea, Tony?” “Absolutely, in the sense that that you say ‘Look, it is simply fish for tea, or simply pork chops for tea’. You have to balance those two things.” “Oh darling, you are a card!”
Torture has been widely debated by a number of bloggers in recent weeks and, unsurprisingly, turns out to be one of the those subjects which generates a clear consensus across the blogosphere – not only is it wrong but wrong in a way what demands its absolute and non-negotiable prohibition (damn our unrepresentative liberal/libertarian hides, yet again) – a position with which I am, of course, in full and unequivocal agreement.
In considering Blair’s comments, however, I must beg to differ with my esteemed blogging colleagues on one specific point; I suspect there’s rather more to Blair’s views here that his simply indulging in bit of moral flexibility and/or moral relativism when it comes to torture.
There’s been rather an upsurge of interest in morality and ethics of late; one driven to a considerable extent by ‘The War Against Terror’ (T.W.A.T), Iraq and, most recently of course, by the July 7th terrorist attack on London. The shifting patterns of global conflict from Clauswitzian warfare conducted by professional armies to post-Clauswitizian asymmetric warfare has, so it seems, turned us all into moralists; having slaked his thirst on the battlefields of two World Wars, the apocalyptic horseman has decided that its time he started to make a few house-calls to the obvious discomfort of the politicians and civilian populations of the industrialised West; for whom war has been something that happened somewhere else for more or less the last half century.
So we find Kantian notions of ‘moral agency’ re-entering mainstream political discourse to challenge the dominance of realpolitik, albeit that much of this has come in form of reams of self-exculpatory nonsense from supporters of the 2003 invasion of Iraq who, stripped of a legal justification for war by the failure of the US/UK governments to find evidence of WMDs, have spent the last couple of years flailing around for an intellectual/philosophical rationale to put in its place in the hope this might get them off the hook.
Much of the overt influence, and attraction, of moral absolutes is that they tend both to rule out and, in the minds of those wielding them, negate any possibility of opposing viewpoints. Things become a matter of black and white, right and wrong, ‘with us’ or ‘against us’ – we are, after all, doing what is ‘morally right’ and consequently cannot be blamed or held responsible if this results in a little ‘collateral damage’ along the way. It must be remembered that you can’t make an omelette without breaking a few eggs along the way.
While it is tempting to see Blair’s obvious equivocation on the use of torture as a lapse into moral flexibility/relativism, in truth there is nothing either flexible or relative about the moral stance which underpins his opinions. On the question of torture, as with Iraq, terrorism and indeed his whole approach to law, order, security and civil liberties/human rights, Blair’s values, like those of his US counterpart, George W Bush, are shaped by a clear belief in a specific set of moral absolutes, albeit a different set of absolutes that that we have come to expect from politicians in such circumstances.
As an atheist, humanist and existentialist I rarely deal in absolutes, moral or otherwise and yet, like everyone else, I find myself needing a moral/ethical base for my personal system of values, a solid platform upon which to construct a worldview that allows me to function effectively in wider society. For me that base, the foundation that underpins my personal values, is justice. It is the one absolute, blind though it is and always should be, that forms a part of my everyday life, the one value on which I can accept no compromise, imperfect though it often is in practice.
In my world, the world as I see it, moral authority derives from and should serve the principle of justice. That, in a nutshell, is the fundamental reason why I am, and always have been, opposed to the death penalty and to the use of torture; both run contrary to my sense of justice and, as such, I take the view that a society which makes use of either loses its moral authority to sit in judgement over those who transgress its rules. If, as a society, we are to countenance the use of torture and the execution of prisoners by the State then who are we to sit in judgement of anyone?
Those are my personal values, and without wishing to presuppose matters or project my own views on to others, I would strongly suspect that these are values that are widely shared by many of those bloggers who have condemned the seeming equivocation of the likes of Bush, Blair and Cheney which it comes to the use of torture and the use of information obtained through torture. It is why I disagree fundamentally with Blair when he dissembles in the face of questions about the absolute prohibition of torture.
Blair, on the other hand, is a Christian and despite periodic claims to the contrary, most notably Alistair Campbell’s assertion that ‘Tony doesn’t do God’, it is apparent that his personal beliefs do play a significant role in shaping aspects of government policy – hence we have a legal prohibition against discrimination in employment on grounds of sexuality which, conveniently, doesn’t apply if discrimination is based on the religious convictions of the employer and evangelical Christian wingnuts, like Sir Peter Vardy, running flagship City Academies amongst other things - the withdrawal of plans to repeal existing blasphemy laws when outlawing religious hatred that had been ‘trailed’ as a likely inclusion in the Bill springs to mind as well.
Read any of Blair’s recent speeches and comments where he touches on the question of ‘rights’ and it should be obvious that his personal view of civil rights draws a very clear distinction between the rights of those he sees as ‘innocent’ as opposed to those he perceives to be ‘guilty’.
This is there, quite obviously, when he talks of a balance between ‘the liberties of freedom from terrorism’ and ‘the civil liberties of the suspect’ just as it is when he discusses law and order and makes reference to the persistent and misleading trope of ‘the rights of the victim’, or indeed in his efforts to rewrite history and sell the invasion of Iraq as a ‘moral act’ – its been conveniently forgotten along the way that even the ‘Blair Doctrine’ of humanitarian intervention, as applied in Kosovo, relies for its tacit acceptance in international law on the principle of responding to a clear and immediate threat to a civilian population that, like the supposed threat of WMDs, was absent at the time of the invasion.
This is, however, no mere relativism, but a reflection of absolutes derived from his religious beliefs; a view of public morality derived from the dual absolutes of ‘good’ and ‘evil’.
Blair’s personal view of rights seem to me to be very much bound up in the dualism of Christian morality in which notions of ‘good’ and ‘evil’; ‘deserving’ and ‘undeserving’, are the primary absolutes to which all other moral values and principles, including justice, are subsidiary and subservient.
As such, this enables him to arrive at a ‘moral reconciliation’ on the use of torture on the basis that it would be wrong, and absolutely so, to torture the innocent who are clearly deserving of their rights in full, but not quite so wrong in the case of a terrorist who, by their guilt, is undeserving of the same rights – provided, of course, that he isn’t seen to dirtying his own hands with such things. This is not, however, either moral flexibility or relativism but the introduction of Christian dualism into his understanding of human rights under which such rights, and the values from which they spring, remain absolute but cease to be universal in application.
We see very much the same thing at work in much, but not quite all, of the latter-day credo of ‘victims’ rights’ that Blair seems so very keen to apply across the full gamut of criminal law to the extent that he and others in government, working to Blair’s personal script, see nothing overtly incongruous in putting forward the view that universal human rights, as codified in the European Convention on Human Rights, impede the presumed rights of victims. Yet it has to be said that even within Blair’s concept of the rights of victims, not all of these rights are pursued with the same degree of vigour and conviction.
British justice, like that of other common law countries, provides for three basic rights that victims of criminal behaviour may be thought to enjoy.
Paramount amongst these is, of course, the right to justice itself. Yet perversely it is this right that has most often come under attack from politicians, in recent years, in their mistaken belief that the right to justice means the right to a conviction. This is, however, manifestly a false position.
Imperfect though the criminal justice system may be the fundamental right to justice enjoyed by victims of crime is no different to the right to justice enjoyed by the defendant or by society as a whole, this being that the guilty are convicted on proof of guilt ‘beyond reasonable doubt’ – to convict the wrong person, an innocent man or woman, is as much an affront to the rights of the victim as it is to those of the person wrongly convicted and it is for that reason – to protect the innocent if wrongly accused – that the standard of proof is set so high and should not be diminished.
Yet it is this standard of proof and, to a lesser extent the burden of proof – i.e. the requirement that the prosecution prove the accused guilty rather the accused prove their innocence, that most often comes under attack; each failing in the criminal justice system being met with demands for more legislation to ‘tilt the balance of the system in favour of the victim’, which, in turn, has lead to the creation of more than 700 new offences in the last eight and half years alone, many of which are defined in vague and subjective terms that require juries to consider questions of the intent, understanding and of the perceived character of accused, thereby reducing evidence to a series of value judgements that covertly serve to shift standards of proof in the direction of a ‘balance of probabilities’ rather than ‘beyond reasonable doubt’.
Nowhere is this more evident in the current British justice system than in the removal, in 2003, of almost all restrictions on the introduction of a defendant’s prior criminal history into evidence by the prosecution when countering evidence of ‘good character’ put forward by the defence.
Despite the obvious limitations inherent in the use of simulations, research using mock juries has shown clearly and unequivocally that evidence of prior criminal convictions has a disproportionate effect on the view that juries take of defendants, despite the fact that a prior criminal record is in no way substantive evidence that the accused is guilty of the offence for which they are being tried, other than in a relatively small number cases where it serves to establish a clear modus operandi as the accused’s ‘signature’ in carrying out an offence. Evidence of this kind is, therefore, an open invitation to juries to judge the accused on the basis of their perception of them as a ‘bad person’ and therefore more likely to be guilty, even in the absence of supporting evidence which would put their guilt beyond reasonable doubt. Worryingly, the same research shows such evidence to have the same prejudicial effect even if the judge then rules it inadmissible and issues a direction to the jury that they ignore it.
Although arguably no more than a part of the general right to justice, one may also consider victims to have some right to see justice visibly done in the form of sentencing policies in which the punishment is seen to ‘fit the crime’. Again, however, this a favourite area for political interventions in the name of “victims’ rights�, which routine sees politicians demanding, and laying down in law, provisions for ever stiffer sentences - often in response to artificial, media-generated moral panics - and most recently and absurdly proposing to enact legislation to permit victims the right to address the court as mendicants before sentencing is carried out.
Quite what this latter proposal is intended to achieve is, to say the least, rather unclear. It seems axiomatic that sentencing, a complex art practiced by judges and magistrates that requires the balancing of a range of competing factors including public safety, punishment, the prospects of rehabilitation and recidivism and other mitigating personal and social factors, will more often than not result in an outcome that the ‘victim’ and/or their family will find to some degree unsatisfactory. One also has to strongly suspect that as victims and their families abase themselves before the court in the hope of a stiffer sentence, considerations of that Christian principle, ‘forgiveness’, are somehow unlikely to intrude too much in proceedings.
Of the many factors that are taken into account in sentencing, only that of ‘punishment’ would appear to have much relevance to the notion that victims have rights, unless the sentence is to incorporate some sort of compensatory award, this being but a reflection of the working of a criminal justice system in which are brought not in the name of the victim but the state (as ‘Regina vs …’). It is the State that carries out the prosecution as an agent of the wider society of which the victim is a member and, as such, this introduces considerations of the interests of society as a whole into sentencing, interests that need not necessarily coincide with those of victim.
Nevertheless, in both former cases we can see the Christian moral dichotomy of good and evil at work in the concept of “victim’s rights�; underpinning arguments that hold that the basic rights one deserves in society are a function of one’s position in relation to notional concepts of good and evil, the good, the innocent, the victim being more deserving of rights than the guilty.
This is, however, an insidious and disreputable argument, one that finds its clearest expression in the United States where, in all but four states (Maine, Massachusetts, Utah and Vermont) the law disenfranchises ex-felons to varying degrees, depriving 3.9 million US citizens of their democratic right to vote.
Where justice holds that the loss of rights, notably that of liberty, is a sanction to be applied once guilt is established, the dualism of Christian morality permits the believer to see such rights as something that can be applied differentially according to character such that the sanction of the loss of rights may be allowed to extend beyond simple punishment for transgressions and becomes an inherent facet of civil society, creating a form of civil society in which rights are according on the basis of the extent to which society perceives individuals to be deserving of them.
Faced with such values creeping into the British justice system in the names of ‘tilting the system in favour of the victim’, one can’t help but feel that should it be tilted any further towards these notional “victim’s rights� then the famous old statue of Blind Justice that stands bolt upright atop the ‘Old Bailey’ may rapidly come to resemble the Leaning Tower of Pisa.
Curiously, however, this dichotomy between the perceived right of the deserving victim and undeserving [alleged] perpetrator starts to break down when one comes to the third, and oldest, component of the victim’s rights within the British criminal justice system; the right to compensation for injury, a right which dates back to Anglo-Saxon Law and its system of ‘wergild’.
I say curiously for if one looks at the government’s current legislative programme one finds that for all the emphasis that Blair and others have been putting on the rights of the victim in other aspects of the wider debate on law and order, when it comes to compensation for injury we get this instead:
“This [compensation culture] is putting pressure on policy making not just in government but in regulatory bodies, in local government, public services, in Europe and across parts of the private sector; pressure to act to eliminate risk in a way that is out of all proportion to the potential damage.”
“The result is a plethora of rules and guidelines and responses to scandals of one kind or another that ends up having utterly perverse consequences.”
“We cannot respond to every accident by trying to guarantee ever more tiny margins of safety. We cannot, in other words, eliminate risk. We have to live with it and manage it and sometimes we have to accept no-one is to blame.”
Although Blair is referring to matters that are for the most part, of civil rather than criminal law, what does seem clear here, and from legislation being put to Parliament in this session that is designed to limit the recourse of plaintiffs to the courts in medical negligence cases, is that victim’s rights are perceived to much less of a good thing when it comes to securing material compensation for injury, which often entails a challenge to the authority of the State, than they are when they serve to reinforce its authority.
For all it appears that Blair’s personal beliefs shape his views on civil rights, this is far from being the whole story.
It is a truism that those who talk constantly of modernity will tend to be those with the least sense of history.
I should stress, before beginning this strand of argument that this is far from being a statement in support of conservatism traditionalism. I am, personally, no great believer in tradition; rather I take my cue from George Santayana’s famous aphorism that, ‘Those who cannot remember the past are doomed to repeat it’ and consider that one can never be sure where you are going if you cannot recall where you’ve been…
…although Santayana also said that, ‘History is a pack of lies about events that never happened told by people who weren’t there’ - which shows that one should never expect absolute consistency from a philosopher.
What we see from Blair’s stated perception of the nature of civil rights is evidence of a foreshortening of history characteristic of many avowed modernisers, one which shapes his attitude to civil rights in such a way as to demonstrate in the clearest possible terms his own failure to understand the historical basis of his own authority as Prime Minister.
It is all too noticeable, in contemporary debates on law, order, security and civil rights, that just as the presumed rights of the victim are sold as the ‘hero of the hour’, so the black-hat villain of this civil drama is, alternately, the Human Rights Act (which Blair’s own government introduced), ECHR and the European Court of Human Rights; any legislation or judicial body that embodies the principle of universal rights - stranger still one finds this same argument even amongst Conservative ranks in recent years, which goes to show just how far even they have drifted from the pragmatic traditionalism of earlier years.
Always there is a clear message from government when bemoaning the ‘fact’ that civil and human rights get in the way of their doing what is necessary to protect the interests of the British ‘body politic’ that somehow this is all a matter of recent invention and something imposed on British society from outside.
In terms of justice and our rights within the criminal justice system, nothing could be further from the truth.
If one examines the history of human rights law, going back to the UN’s Universal Declaration of Human Rights, what one finds expressed within it is a view of civil rights as they apply to justice which, although heavily influenced by US constitutional law (Eleanor Roosevelt having played a key role in drawing up the UDHR), is almost wholly derived from English Law and the British justice system. This is hardly surprising as that is also the root of US criminal law.
Blair is a lawyer and, as such, should clearly understand this – and if not, his wife, as a human rights lawyer herself, should be well placed to explain it to him, yet his public stance in regards to the justice system seems to suggest that he lacks even a basic understanding of how the principles of the British justice system have evolved and developed over the centuries and the extent to which both UDHR and ECHR consist almost totally of a series of restatements of principles embodied in English , principles that define the rights of citizens in their dealings with the criminal justice system, that substantially predate the post-war codification of universal human rights.
This lead Blair to that most fundamental of all misunderstandings, a failure to understand the nature of the social contract that exists between citizen and State, a contract from which he derives his own authority as Prime Minister.
By far the most egregious of all Blair’s recent conceits is his assertion that the duty of the State to protect its citizens derives from the pre-eminence of the citizen’s right to life – an assertion that is not merely utter rubbish but a complete misstatement of the social contract.
I noted earlier in discussing ‘victim’s rights’ that prosecutions are carried out in the criminal justice system in the name of the Crown and not that of the victim. This is no mere convention, tradition or legal artifice but a direct reflection of the nature of the social contract, a contract that is based not on the presumed rights of the citizen but on a rational transaction between citizen and State in which the State takes on the duty of protecting the life and liberty of the citizen – generally by defending national borders against external aggressors, in return for which the citizen transfers to the State the sole and exclusive right to the legitimate use of force within the bounds of the Nation State.
Civil rights simply don’t come into it and never have done.
In fact, the function of civil rights is to protect the citizen from misuse of the authority of the State and, in particular, it’s exclusive right to the legitimate use of force, as noted by William J Brennan Jr.:
“The Framers of the Bill of Rights did not purport to “create” rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing.”
The idea that the State’s duty to protect its citizens derives from the civil rights of those citizens is an utter fallacy.
This whole idea that one must surrender civil rights and liberties to the State so as to better afford it the ability to defend those rights is a foul and pernicious work of fiction that can come only from someone who fails to understand the very nature of those rights and is, in addition, a betrayal of the very basis of civil society and the social contract between citizen and State. In the face of war, terrorism, or any other threat to the body politic it is the primary duty of the State to defend the rights and liberties of the citizen in full and from all-comers not act in the manner of Caesar and demand that those rights be rendered to the State for protection just as it is the duty of the citizen to defend those rights, even from the demands of the State.
“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”, wrote Benjamin Franklin as if to suggest he might be possessed of a prescient knowledge of the future, even of our own times - although the truth is that he possessed only an understanding of human nature and we have changed little in our relationship to power and politics in two-hundred years.
It would be, I think, a grievous error to ascribe Blair’s apparent evocation on the question of absolutes and torture merely to moral flexibility/relativism and the pragmatism of the realpolitik and its mistaken belief that the doctrine of the ‘greatest good’ may somehow justify atrocity. Tempting as it may be to view Blair through the lens of Machiavelli there seems little doubt that in his own mind Blair sees himself as a moral person; indeed it seems far more likely that Blair’s views on torture are founded not on pragmatism but on what is all too often one of the central conceits of exoteric monotheism, the belief that faith alone makes one a moral person and that a moral person must, by definition, be a good person; that the best of motives can justify the worst of actions, or at least make them tolerable to the conscience.
And interesting though it may be to consider and speculate on his personal motives; to note the presence of Christian dualism in his thinking and how that may serve to shape and influence his personal view of civil society and human rights our real concern should be less with Blair’s motives and morality than with the consequences of actions predicated on both, for as CS Lewis noted:
“Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their consciences.â€?
Liberty, after all, when placed into the protective custody of moral authority, rarely serves less than a life sentence.
