Introduction
As some of the left fall all over themseves referring to the genocide in Gaza and the West Bank as a breach of international law without gaining any criticial distancing from the limitations of “the law,” , the actual nature of law and its procedural acrobatics lies hidden. It is better to remind workers, citizens, immigrants and migrant workers of the real nature of law and not its rhetoric.
This is a continuation of a series that exposes the reality of courts as part of the exposure of the reality of the rule of law.
The series involves quotes from the book by Doreen McBarnet (1983) Conviction: Law, the State and the Construction of Justice as well as short commentaries related to the quotes. I use her book as a way of exposing the real nature of the rule of law and the role of courts in both hiding the real nature of law and enforcing the real nature of the rule of law. (If others know of similar sources that expose the reality of law and the courts, it would be appreciated that they provide information in the “Comments” section.)
Rhetoric
You cannot be arrested without a charge, and you cannot be questioned once you are charged. Page 41:
Indeed the combination of rules on arrest-no arrest without a charge-and the rules on interrogation-no interrogation after charge, would seem to render it [detention for questioning] legally impossible.
Reality
But procedures develop that get around this limitation. Page 41:
But there are ways round this: one is the holding charge. The rules prohibiting interrogation in custody refer only to interrogation about the offence with which the person has already been charged. There is no rule against using one charge to take a person into custody then interrogating him in the isolation of the police station on another
offence. The holding charge thus allows a suspect to be questioned in private and in custody until a confession is elicited. It also opensthe way for search. Search of someone’s person or home is not permissible in order to find evidence unless there are prior grounds
for suspecting him of an offence. ‘An Englishman’s home is his castle’ is indeed an old legal maxim expressing the prohibition on search without warrant. But the holding charge obviates this. Once arrested, the person, and the premises he is in, can be legally searched, and if evidence relevant to another charge is unearthed, the search is quite lawful and the evidence admissible.In short, according to case law the police may with impunity make an arbitrary arrest, arresting not on a charge based on some kind of proof of specific implication in a specific offence, but arresting in order to acquire that proof or find out if there has been any activity that could be defined as an offence. (‘That could be defined’ is important. Remember we are not always talking about finding sacks marked ‘Swag’, but, for example, political posters and pamphlets.) Authoritative common law thus unceremoniously turns the basic principle governing arrest on its head.
Wide police discretion over petty offences thus takes on further significance. Defining as arrestable offences behaviour as indeterminate as intent, loitering, or breach of the peace, a known thief in suspicious circumstances and so on gives the police wide powers oflegal detention, and these powers may be used to establish evidence for a different suspected offence, which the policeman is really interested in but has no evidence on which to charge and therefore arrest.
Conclusion
The rhetoric of law–that you cannot be questioned once you have been charged–contradicts the reality of law. The reality of law is that the police have developed wide powers that get around the rhetoric of law so that citizens, immigrants and migrant workers are in effect stripped of such rights.
But you would not know it from the rhetoric of the social-democratic left. We are still waiting for such social democrats here in Toronto to explain to us what he means by the following:
Shouldn’t that institution [the police] be thoroughly transformed, by political struggle, into a more humane, limited and less autonomous one?
My reply in an earlier post:
Okay. How does Mr. Rosenfeld or other social democrats propose to do that? Frankly, I think that you should not hold your breath while waiting for a response. The article written by Mr. Rosenfeld from which this quote is drawn is dated May 4, 2020. I have searched on the Net to see if Mr. Rosenfeld has elaborated on this assertion since then; I have not been able to find anything at all written by him on the topic since his May 4 article.
This is just social-democratic rhetoric passing it off for something real; it is pretending to be something that it is not. It is fake social reform. Workers, citizen, immigrants and migrant workers hardly need such pretentious rhetoric. Mr. Rosenfeld has no real intention to lift a finger to formulate let alone implement a policy for police “reform.” I suspect that this applies to many other social-democratic or reformist arguments.
Do not workers, citizens, immigrants and migrant workers deserve more than such rhetoric? What do you think?
In the context of appeals to international law and genocide in Palestine, should not the left be exposing the limitations of the law, both international and national in addressing the problems which we face as workers, citizens, immigrants and migrant workers?
The Abolitionary 