The Real World of the Rule of Law: Courts as Oppressive Organizations, Part Four: To Resist or Not to Resist the Police

Are You Arrested? The Ambiguity of Being Detained by the Police

When a police officer stops a citizen, an immigrant or a migrant worker, it may be understandably unclear whether s/he is arrested or not and what s/he can do or not do if stopped by the police. From McBarnet, page 36:

Arrest-that is, the detention of a person against his will-may be legally carried out only in relation to a specified offence. Otherwise attendance at the police station is purely voluntary. This is the spirit of the Judges’ Rules. Barry Cox ( I975) points out succinctly the gap between this ideology and practice:

Detention for questioning is therefore in theory impossible; in practice ‘helping the police with their inquiries’ is a daily event. (p. I72)

How is this possible? Partly because of the simple fact that if such arrest is impossible in theory it is nonetheless perfectly possible in law. Although they are much referred to as a symbol of legality, the Judges’ Rules are not law, only principles for administrative guidance. Authoritative law on arrest is rather different.

If a person is not arrested when stopped by the police, what can the person do? Can s/he just leave (apart from some exceptions–as when the police require a person to take a breathalyzer test)? Not really. They, of course, can try to leave, but the legal interpretation of such an act is rather tricky. From McBarnet, page 36:

For example, the voluntary nature of helping the police with their inquiries has been interpreted in law, to say the least, very widely. Consider the Scottish case of Swankie v. Milne in I973 which defines the current situation. This was deemed not only not to be an illegal arrest but not to be an arrest at all. The judges accepted that the police had stopped the accused in his car, taken his keys away, waited with him and would have prevented him from leaving if he had tried to. However, they concluded that the accused had remained voluntarily and had not therefore been arrested.

Furthermore, what if the police try to stop the person? What right does the person have in this case? Referring to the above case, From McBarnet comments, pages 36-37:

What their judgement would have been if he had tried to leave is unclear. But it is also an arrestable offence according to the 1964 Police Act to obstruct the police in the execution of their duty, and this has been interpreted as ‘the doing of any act which makes it more
difficult for the police to carry out their duty’ (Rice v. Connolly, I 966). What precisely that means remains an open question. Although Lord Justice Parker in the same case refuted the idea that refusing to answer questions, even allied with a generally obstructive and
sarcastic attitude, was not obstructing a policeman in his duty. Justice James made a point of noting that:

I would not go so far as to say there may not be circumstances in which the manner of a person together with his silence could amount to an obstruction within the section; whether it does remains to be decided in any case that happens hereafter, not in
this case, in which it has not been argued. (Rice v. Connolly, Ig66)

It becomes rather difficult to see how someone can avoid being arrested if the police have a mind to arrest him.

Doing anything that indicates resistance to the police can easily be interpreted as resistance of arrest–and guilt. From McBarnet, page 37:

Furthermore, refusing to co-operate is not a far cry from resistance, which is, of
course, an arrestable offence; nor is resistance far from another offence, assault.

Indeed, in court, resisting arrest tends to be presented by prosecutors as indicative of guilt and therefore a justification of the arrest on the first charge anyway. ‘Only the guilty take advantage of civil rights’ is the line taken.

A person stopped by the police, on the other hand, who does not resist arrest may be accused of being guilty for that very reason. From McBarnet, pages 37-38:

On the other hand, with the nice skill lawyers have of always holding the winning trick, failing to resist is also suspicious. Witness Case 8.

The prosecutor was suggesting that the accused must have been guilty or he would not have allowed himself to have been seized (uncharged) by two men (the police were in plain clothes) without resisting:

Prosecutor: You didn’t do anything?
Accused: I couldn’t.
Prosecutor: You didn’t say ‘What are you doing?’
Accused: No, it was all too quick.
Prosecutor: And no explanation was given at all?
Accused: No
Prosecutor: When did you gather they were policemen?
Accused: I asked them-they said they were taking me to the station.
Prosecutor: But why assume they were policemen? There are railway stations.

The same applies to friends who do not assist the accused. From McBarnet, page 37:

In his summing up the prosecutor considered it doubly suspicious that the accused’s companion had not fought off the two policemen if his friend was being innocently seized:

Prosecutor: According to his story, his companion made no protest while the accused was dragged out by two unknown men. This is quite incredible. He is clearly guilty of this charge.

The flip side of this catch-22 situation–damned if you do and damned if you don’t–is you may be accused of resisting arrest if you do aid someone detained by the police. From McBarnet, page 38:

The companion in question might, however, have been relieved that he had not intervened if he had heard the accused’s mother’s account of her night in jail charged with breach of the peace when she went to protest, or if he had witnessed Case 13:

Policeman: One youth ran towards us saying ‘What are you taking him in for? It’s a fucking liberty. He’s done fuck all!’ He was cautioned and charged with breach of the peace.

What if there is no ground for arrest, the police arrest the person and the person resists? The person can be charged and convicted of assault. From McBarnet, page 38:

In any case, the prosecutor’s argument was only about the credibility of the accused not the legality of the arrest. Indeed, in cases of resistance or assault, even if the arrest was unfounded and illegal it is still, in English law, ‘open to the jury to convict of common assault’ (Halsbury, 1g6g, vol. 25, p. 364) and the charge sticks even if the resister did not know the person seizing him was a policeman. In short, the law itself does not encourage standing on one’s right to freedom from arbitrary arrest.

The Social-Democratic Left and Criminal Law

What would the social-democratic or reformist-left say about this? They would likely repeat what the social democrat Herman Rosenfeld stated:

Shouldn’t that institution [the police] be thoroughly transformed, by political struggle, into a more humane, limited and less autonomous one?

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.

Indeed, when Mr. Rosenfeld, Jordan House and I were giving a course on union organizing and socialism for airport workers at Toronto Pearson airport, I mentioned that we workers at a brewery in Calgary had engaged in sabotage of the machines in order to have one foremen fired (he was pressing us constantly to produce more), I had the impression that Mr. Rosenfeld was uncomfortable in my stating this fact; he was probably afraid of challenging the beliefs of the workers. I could of course be wrong, but Mr. Rosenfeld’s lack of elaboration of how the police are to be transformed and reformed provides further evidence of my suspicion that he actually holds social-reformist views and that his socialist views take second place; this conclusion probably applies to many so-called socialists.

Furthermore, the title of his article from which the above quote is drawn expresses a hostility to the view that what is needed is the abolition of the police and not its reform:

Reform and transform: Police abolitionism and sloppy thinking

Such hostility to a politics of abolition by calling it “sloppy thinking” without engaging in any further inquiry also points to a social-reformist or social-democratic point of view.

Perhaps social democrats or social reformers can provide counterarguments to the above. I welcome such counterarguments–but I suspect that they will not provide any counterarguments.

If there are no counterarguments by the social-democratic or social-reformist left, does that not point to the need to abolish the police and the associated court system that is linked to it? Would not a people’s court and armed citizens be much more in the interests of workers than a separate police force and courts that engage, systematically, in oppressive measures against those who challenge social order? After all, as Mark Neocleous argues, the essential function of the police (and the courts by implication)–is to maintain social order of a society dominated by a class of employers–and not to administer social justice (see Reform Versus Abolition of the Police, Part 8: The Police and the Political Economy of Capitalism).

Conclusion

Workers, citizens, immigrants and migrant workers who are stopped by the police, even if they have not broken the law, could easily be arrested for refusing to comply with police officers’ instructions. On the other hand, complying with police officers’ instruction could also be used in a court of law against them. Such is the illogic of a system of justice within a society dominated by a class of employers.

You would not know it from the rhetoric of the social-democratic or social-reformist left, though. They provide little or no research to educate workers, citizens, immigrants and migrant workers on the real nature of the work of police officer and the real law as expressed in courts of law. Rather, they paper over the real nature of such social institutions with their empty phrases of transforming such institutions “into a more humane, limited and less autonomous” form.

Law (the Legal System) and the Coercive Power of Employers as a Class

Introduction

It is interesting how little discussion arises over the nature of the legal system and how it contributes to the exploitation, oppression and economic coercion of billions of workers throughout the world. Unions rarely if ever discuss such issues–it is considered to be utopian at best–whereas unions dealing with the “real” problems that workers face every day. Representatives of unions really need to justify their lack of interest in, on the one hand, addressing such issues and, on the other hand, in failing to incorporate a critique of the legal system into trade-union education.

All Corporations as Criminals–Not Just Some, Or: Definition of the Problem

Below is a set of quotes, along with some commentary, from Professor Harry Glasbeek’s (2018) book Capitalism: A Crime Story. Glassbeek points out in various ways that the employment contract, whether individual or collective, involves coercion:

Every contract of employment, supposedly voluntarily entered into by workers, imposes a legally enforceable duty on workers to obey, a duty to exercise reasonable skill and care, a duty of good faith and loyalty. The worker is not to talk back, let alone rebel; the worker’s only goal is to serve her employer and its goals. This is deeply embedded in our supposedly liberal legal system. As Otto Kahn-Freund put it, the lawyer acknowledges that the hallmark of employment relationships is the element of subordination to which one party, the employee, is said to agree. Canada’s Task Force on Labour Relations baldly stated that a superior-inferior nexus is the distinguishing characteristic of the employment relationship.46 Even when workers can protect themselves better by having won the right to engage in collective bargaining (obviously a departure from the individual contract model), workers are required to obey all reasonable orders the employers issue. The notionally sovereign, autonomous workers are repeatedly and expressly told that the workplace is not a debating society. Coercion of individuals and appropriation of their product remain salient features of legally enforceable contracts of employment, even when laws are passed to alleviate the burdens imposed by its judicially developed doctrines.48

Force and taking—it is the norm. It is not hard to see this if law’s pretenses are unmasked. Take our illustrative mugger who threatens a person with force: the law is sanguine. He is a criminal. The employer who threatens a worker with wage loss if she insists on having clean lungs is treated, by means of a legal pretense, as merely negotiating terms and conditions of a contract (including those of safety at work) with another equally sovereign party. This is a momentous and absurd assumption. Yet, all occupational health and safety regulation begins with this premise, that is, with the initial thought that, whenever possible, safety at work should be left to bargaining between private (if unequal) actors. I will come back to this issue, but the implications are dire for workers. For the moment, I return to my claim that it is patently false to assert that workers enter voluntarily into contracts of employment. Workers have no choice about whether to sell their labour power [their capacity to work or to use the means of production, such as computers and other machines and tools]; if they are lucky they can choose among some purchasing capitalists. They must sell parts of themselves. That is their only freedom, a freedom that is best described as a freedom they are forced to exercise, an oxymoronic idea if there ever was one.

This coercive economic system and its indirectly coercive political and legal system can have deadly consequences, to which legislators have to pay lip service (as the Westray mining murders illustrate:

Legislators may have to overcome stiff opposition from the dominant class’s opinion moulders, but will act to still the palpable public unrest. They feel under pressure to reassure the non-capitalist public that politicians, policy-makers, and the law do truly care about life and the social values by which non-capitalists want, and expect, to live.

Canada’s Westray mining tragedy provides an easy illustration. Before the mine blew up, there had been fifty-two violations of mining safety regulations detected by the inspectorate, none of them leading to punishment. In the aftermath of the deaths of twenty-six workers (no employers or managers, of course), a public inquiry was established. The findings were that the operators had been incompetent at best and, at worst, heedless of human life. Note here that, while the violations of the regulations provided evidence for such findings, it was not the lack of obedience to the resultant orders for breaches of those
standards that got everyone angry. It was the business plan and the daily modus operandi of the mine owners that was seen as repellent, as worthy of criminalization. This was explicitly supported by the authoritative commission of inquiry. Its recommendation was that, if the law did not allow for criminal prosecution of corporations and of their senior operators for this kind of conduct, it should be reformed. After a lengthy battle (capitalists, their corporations, and their ideological defenders did not like this turn of events), legislation was enacted. It makes it possible to criminalize the omission to take action when it is reasonable for some senior officers to believe that it is likely that there will be a
failure to take adequate care (calibrated by regulations or general legal principles). This gradual realization that the usual exceptional legal treatment of capitalists and their corporations needs to be reined in from time to time is not jurisdictionally specific. Analogous legal reforms have been initiated in some Australian jurisdictions and a somewhat less sweeping statute was enacted in the U.K.

These recognitions that heedless risk-creation and risk-shifting, so natural, so routine to for-profit corporations, is potentially criminal in nature and might be so treated go against the grain, go against the starting premise that capitalism’s normal workings involve virtuous actors, using innocent substances and methods that may occasionally lead to unfortunate “accidents” and “spills.” The resistance mounted by capitalists and their corporations’ cheerleaders has been forceful and, thus far, has blunted the impact of the new criminal law reforms. In Canada, after ten years of operation, there has only been one prosecution in respect of fatalities at work per year, even though the number of fatalities has remained constant. The calculation is that there is a 0.1 per cent chance that a prosecution will be launched after a workplace death. That this was always going to be true can be gleaned from the fact that all these reforms took ages to put on the statute books (in Canada close to eleven years; the Australian Commonwealth statute took a similar twelve years to be given life), despite officialdom’s caterwauling about the tragic nature of the results that had led to them.

The powers-that-be continue to believe in their internalized make-believe view that it is not unethical, not criminal, for practising capitalists to undertake actions that they know, or should know, will lead to a certainty of death or other unacceptable outcomes. Thus, when confronted by policy-makers under pressure to confirm that we still live in a liberal democratic society and should punish capitalists as if they were ordinary folk, they ask everyone not to be romantic. Pragmatism is to rule. Principle is a luxury. The liberal spirit of law must be bent to allow capitalists and their corporations (and thereby all of us) to flourish. It is not a very convincing argument on which to base a legal system. At best, it is
amoral; it asks that we should be willing to suspend our ethical goals for the sake of expediency. In any event, this demand, based as it is on the notion that the suspension of our adherence to our shared values and norms is a practical response to real-world circumstances, is not backed by any sound evidence. What is certain, however, is that the tolerance for amorality, or worse, for ethical and moral failures, does nothing for the social cohesion that any society must have to flourish.

Some Proposed Solutions to the Criminal Nature of Corporations–and the Probable Resistance of Social Democrats to Such Solutions

Academics, like Professor Glasbeek, who are critical of the legal system and are aware of its class biases sometimes naively believe that those who claim to be opposed to capitalism are in fact opposed to it. For example,  Professor Glasbeek argues the following:

It would be politically useful to shift the nature of the debate. It should become a debate about whether corporate capitalism actually delivers the good it promises and that this permits it to justify asking society to bear the occasional “malfunctioning” of the system. If this can be done, anti-capitalist activists might find themselves on a more favourable terrain of struggle. Pro–corporate capitalism advocates will have to show that the material wealth capitalists and their corporations produce outweighs the dysfunctionalities generated by their ceaseless drive for more. The uneven distribution of wealth and power, the many physical and psychic injuries inflicted by the chase for profits, the rending of the values and norms by which people other than capitalists believe they should live, all can be listed and elaborated to offset the satisfaction we are supposed to evince because, in the aggregate, monetary wealth is growing ever so nicely. Making this a focus of the attack on capitalists and their corporations can reveal that their reliance on the argument that “the most wickedest of men [doing] the wickedest of things” is a proper means to deliver the “bounty” of economic growth that we supposedly need and crave is inane, perhaps even insane. An argument that their calculation of wealth does not speak of a kind of wealth that meets the aspirations of human beings who want to live in a more altruistic, more compassionate, more ecologically nurturing society can be put on the agenda.

I fail to see how such an agenda is really being promoted here in Toronto by the so-called progressive left. The progressive left talk about “fair contracts,” “good jobs,” and the like. Indeed, it is interesting how social democrats, ultimately, idealize law and the legal system. Thus, trade unionists here in Toronto, such as Tracy McMaster (union steward, organizer, former vice president, Ontario Public Service Employees Union (OPSEU) local 561 and Wayne Dealy (executive director, Canadian Union of Public Employees (CUPE) local 3902), who refer to a fair contract, indirectly idealize the legal system. They assume that there can be such a thing as a fair contract (including, of course, a collective agreement). The legal system, however, is not only “imperfect” (to use one of Ms. McMaster’s euphemistic terms) but riveted with biases against workers and the working class.

What are Wayne Dealys, Tracy McMasters of the world  doing to enlighten workers about the unfairness of contracts and the unfairness of a society characterized by the power of a class of employers? Or are they more concerned with idealizing collective agreements and minimizing the imperfections in collective agreements and the legal system of which collective agreements form a part?

What would the Dealy’s and McMaster’s say, not rhetorically but practically, about Professor Glasbeek’s following assertion:

This led to legislative interventions to “even up” the bargaining game. We now allow some unionization; we now provide some legislated standards if workers cannot win socially acceptable terms by their own free and voluntary dealmaking. The scope and kind of these protections wax and wane as political and economic fortunes change. When wins are recorded, they are significant worker friendly add-ons to what unmodified employer favouring law offers. But because they are add-ons, many of the legislative gains made by the working class are impermanent. The essentially coercive nature of employment remains intact. Still, the fact that there have been many reforms, that is, many interferences with free contract-making, may suggest to some that the continued significance of the ideological and instrumental impacts of the individual contract of
employment is overstated in the argument presented here. To many observers, the contention that workers are making autonomous choices when entering employment contracts holds up because, in the advanced economies where Anglo-American laws rule, many of us (after 180 or so years of fierce struggles) have some protections against the legalized right of employers to use their wealth as a bludgeon. It is fair to say that the modernized employment relationship looks more benign than it did, but this may only mean that its coercive nature is more insidious, less easily seen. This may make matters
worse….

The fact is that law maintains the basis for a deeply unequal relationship between employers and workers, even when this is sugar-coated by contingent gains made by the working class.

Social reformists and social democrats not only would likely ignore Professor Glasbeek’s analysis of the problem, but they would likely reject out of hand his proposed solutions. For instance, consider Professor Glasbeek’s following proposal:

The characterization of corporations as sovereign individuals with their own agendas is not defensible and should be confronted constantly. Conceptually and materially, they are collectives endowed with disproportionate economic and political powers that benefit the contributors of capital to their coffers. Corporations are instruments designed to satisfy capitalists’ drive for more. Their misbehaviours should be attributed to capitalism as a system and capitalists as people. Anti-capitalist activists and critics should not permit themselves to be distracted by legal proposals to reform corporations or by engaging with movements designed to persuade corporations to be more socially responsible. If, as argued here, capitalism is criminal in nature, it follows that, when they flout ethical and moral norms embedded in law or violate legally mandated standards, corporations are doing what comes naturally to red-blooded human capitalists and what they want their corporations to do. Given the frailty of the legal reasoning that bestows legal personality on an artificial being and that limits fiscal liability and removes legal responsibility from those who hide behind the novel legal person, anti-capitalist activists and critics would do well to argue for the abolition of corporations and hold their controllers’ feet to the fire. An extended and cogent argument to this effect has been made by Steve Tombs and David Whyte in their recent work, The Corporate Criminal.

Conclusion

I know of no social-democratic leftist individual in Toronto who seriously is working towards the abolition of corporations. They consider such talk to be absurd–in practice, although in theory they may pay lip-service to it. They certainly do not teach the decidedly opposite interests of workers and employers. Quite to the contrary. They often paper over such opposition by the use of such phrases as “fair contracts,” “fair collective agreements,” “fair wages,” “decent jobs” and the like.

I invite social reformists or social democrats to engage seriously in creating a movement for the abolition of corporations, in Toronto and elsewhere. Relying ultimately on the legal system to defend us is bound to end up in limited gains and the continued coercion, exploitation and oppression of millions upon millions of workers.

Of course, given my own experiences with social reformers or social democrats, I suspect that they will continue to ignore the systemic real experiences of class oppression, class exploitation and class coercion. In such circumstances, they need to be criticized constantly.

The Real World of the Rule of Law: Courts as Oppressive Organizations, Part Three: Arbitrary Arrest and Police as Privileged Citizens

Introduction

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 and enforcing the real nature of the rule of law.

The courts and the police are interrelated, and as a consequence what the police do and the nature of the police have an essential bearing on what courts do and on the nature of courts–as courts have an essential bearing on what police do and the nature of the police. 

Does the law protect workers, citizens, immigrants and migrant workers from arbitrary arrest, and does it treat the police on the same level as workers, citizens, immigrants and migrant workers? 

The Ideology of Evidence for Arrest Versus the Reality of Arrest to Find Evidence (Arbitrary Arrest)

Theoretically, or ideologically, the police are supposed to have some basis for arresting citizens rather than arresting them and then finding evidence. From page 27:

In principle then the police must have evidence against someone before detaining him, not detain him in order to obtain evidence against him-exactly the principle one might expect to be enunciated in an ideology of legality which seeks to safeguard the citizen from the state by prohibiting arbitrary arrest. At the level of abstract principle, due process and crime control seem well and truly at odds. And the question facing us is how do the police, in the face of legal definitions of due process, acquire the requisite information for incriminating suspects and setting the whole process in motion?

Police work is typically presented in relation to the right of a citizen not to incriminate oneself (as typically presented in police shows (such as those on Netflix and Amazon Prime), with the police then engaged in a process of investigation to establish evidence that substantiates criminal charges. This situation, however, is the exception of criminal charges rather than the rule. Page 27: 

…how difficult the incrimination process is depends on the kind of offence involved. In what the police see as ‘real police work’ (Cain, 1971, p. 88) incrimination may well be problematic. For this is the stuff detective fiction is made of, where only the offence comes to light and both offender and evidence for incrimination have to be established by investigation. But this is not the kind of offence that dominates the work of either the police or the courts. Petty offences, particularly offences against public order, are much more typical and these are of quite a different nature. They are largely a matter of police-citizen encounter with the police defining marginal behaviour as subject to arrest or not, with the
policeman and the culprit on the spot, with no investigation involved, and the process of incrimination simply begun and ended with the charge. In short for the vast majority of cases that are processed by the police and the courts, incrimination, and the constraints of law on incrimination, are simply not a problem.

This does not mean that the police are satisfied with such a situation. They do indeed seek to obtain enhanced powers that would allegedly permit them to widen their field of arrests to include more professional criminals. The problem is that such professional criminals, as professional, often will adapt their procedures to take into account the changed procedures of the police, thereby once again eluding the police. The probable result is that either it will be more likely that the same petty offenders will be arrested, or more petty offenders will be arrested. Page 27:

Of course the police demand for more powers is less concerned with such petty offenders than with the ‘hardened criminals’ who escape conviction by slipping through the net of procedures that are ‘excessively solicitous towards accused persons’. The irony is that
the people most likely to be caught by wider police powers are the petty offenders who, as it were, know not what they do. Successful professional criminals are, as Mack ( 1976) notes and Mcintosh ( 197 1) demonstrates historically, successful professional criminals
exactly because they can find their way round and adapt their methods to new procedure.

As an aside, but related to this, Herman Rosenfeld, a supposed Marxist radical here in Toronto, Ontario, Canada, claimed the following: 

Shouldn’t that institution [the police] be thoroughly transformed, by political struggle, into a more humane, limited and less autonomous one?

Since the police, when they make an arrest, do so in the majority of cases because of petty crimes, where the person is allegedly “caught in the act,” how does Mr. Rosenfeld propose to “transform the police as an institution into a more humane, limited and less autonomous one” under these circumstances? I am still waiting for Mr. Rosenfeld’s elaboration of such a proposal. I predict that he will never elaborate on such a proposal because his statement is pure rhetoric–typical of many social reformists or social democrats. 

Returning to the issue of the so-called right not to be arrested arbitrarily, not only are the vast majority of arrests for petty or minor  offences but they are “easy” in that they do not involve substantial investigation or inquiry. Page 28:

there are so many marginal arrests [because]  they are easy.

Arrests without warrants rarely go challenged. Pages 28-29:

… as Renton and Brown (I972) point out in discussing arrest without warrant, ‘it is not often challenged’ (p. 28). Given the methods available for challenging an arrest, this is
hardly surprising. The opportunities are limited: one may challenge the arrest in the course of a trial, one may take out a civil action or one may lodge a complaint against the police under the 1964 Police Act. 

Furthermore, most such offences do not even go to trial since most of those charged plead guilty. Page 29:

But most cases do not come to trial since most defendants plead guilty (whether they believe themselves guilty or not) 4 and the legitimacy or otherwise of the arrest is therefore never challenged.

Even the presence of a lawyer hardly guarantees that police conduct will be challenged. Page 29:

… even defendants who are represented may find their lawyer advising against questioning police conduct since it might turn the judge against him (Baldwin and McConville, 1977)

If the accused does challenge the arrest, the probability of winning is less than 20 percent: Page 29:

Box and Russell (1975) show that only 18 per cent were found-by the police-to be substantiated. The improbability of successfully challenging an arrest, particularly for a trivial offence, provides one immediate reason for the ease of marginal arrests.

This lack of probability of successfully challenging the legitimacy of an arrest  and being taken  into custody is due: 1. in part to the vagueness in the law’s reference to the legitimacy of an arrest in the interests of justice; 2. in part to only the subjective requirement of the police’s belief that the arrest was justified and 3. in part in the history, character and living circumstances of the person taken into custody. Page 29: 

The legality of custody is defined in terms of reasonableness or the interests of justice (Renton and Brown, 1972, p. 30), neither of which sets the parameters very clearly, allowing wide scope for subjective discretion. Indeed, the common law merely offers a post
hoc check on the ‘reasonableness’ of the policeman’s belief that arrest was justified. The law also accepts the belief that people ought to be taken into custody if they have a past record (Carlin v. Malloch, 1896) or are jobless or homeless. Lord Deas, in Peggie v. Clark ( 1868)
made it clear that the arrest of a member of ‘the criminal classes’ or of someone with no means of honest livelihood or fixed abode is easier to justify than that of someone who:
even although expressly charged with a crime by an aggrieved party, be a well-known householder-a person of respectability-what, in our judicial practice, we call a ‘lawabiding party’.

The homeless and jobless are automatically suspect as being of the “criminal” type; only those who work for an employer (and thus are oppressed and exploited) and, possibly, own some form of property (such as a house or condominium) as well as employers and professionals, should be free from arbitrary arrest since they form essential means or material for the continued existence of capitalist society. 

As I have pointed out elsewhere (Reform Versus Abolition of the Police, Part 8: The Police and the Political Economy of Capitalism), the legal system is designed to ensure that workers remain workers for employers, and those who are on the fringes of the employer-employee relation are always suspect and easy prey for arbitrary arrests by police. This situation is not despite the law but because of the law. From pages 30-32:

Given the law’s attitude to the homeless and jobless we could not expect equality anyway. Pragmatics and rationalisations at the informal level-with the consequence, intended or otherwise, of class and racial bias-are also endorsed in formal law. As for having sufficient evidence on a specific offence, there is also plenty of scope for legally circumventing that principle. The specific offence may itself be rather unspecific: breach of the peace (whose
peace?), loitering with intent or being on premises for unlawful purposes (how does one determine purpose or intent?), possessing goods for which one cannot satisfactorily account (how many people carry receipts and what is satisfactory?), carrying implements
that could be used for housebreaking (where does one draw the line?), or as weapons. Even an empty milk bottle has been defined as a dangerous weapon (Armstrong and Wilson, I973). If the police operate at this level with wide discretion (Bottomley, 1973) it is not just because they surreptitiously take it into their own hands but because they are formally allocated discretion on what constitutes an offence via vague substantive laws and wide procedural powers.

So, in vague cases like breach of the peace, the offence exists because the police say they observed someone loitering, drunk, ‘bawling, shouting, cursing and swearing’, to quote the daily menu for the district courts, or more unusually but nonetheless an observed case, ‘jumping on and off the pavement in a disorderly fashion’ (Case 30). These offences may be, in Maureen Cain’s term, marginal. They are, as described, amazingly trivial. But they are also numerically significant ( 76 per cent of the arrests Cain (1971) observed), hence her interest in probing the non-legal reasons for police making such arrests (p. 74). But what is also important is the formal structure which makes such arrests, whatever their
motivation, legal.

Likewise, one must refer to more than informal stereotyping to explain the arrest of two young boys (Case g), a ‘known thief’ and his companion, who, according to the police evidence, were ‘touching car handles’. Whatever the motivation of the police, the legality of their action is indisputable and the stereotyping more than informal. The General Powers Act 196o lays down the law that known or reputed thieves in suspicious circumstances are subject to arrest. A known thief is someone with a previous conviction for dishonesty: previous convictions become therefore not just informal leads for narrowing-down suspects on committed crimes but legal grounds for arresting them. A reputed thief is someone who keeps bad company and has no known means of honest livelihood: stereotyping and assuming the worst are thus written into the law. Suspicious circumstances are left to the police to define. Thus police evidence in this case is expressed purely as subjective interpretation:

‘they were touching them as though to open them .. .’,
‘he seemed to say to Craig to stand back .. .’,
‘they appeared to be watching and waiting .. .’ (McBarnet’s emphasis).

Note that it is not just police practice but the formal law here which deviates from the ideals of legality, replacing arrest for a specified offence with arrest on suspicion or for prevention; replacing established law with arbitrary definitions; replacing the doctrine of trying each case on its merits with the relevance of  previous convictions. Personal and bureaucratic motivations can explain why the police want to make arrests; the law itself explains why they may.

The Real Rule of Law Privileges the Police Over Citizens

The real rule of law privileges police over citizens. An arrest by the police makes the probability of a finding of a guilty verdict quite high. The police in the courts, in effect, are treated as privileged citizens who have a higher regard for the truth. From page 32: 

What is more, judicial sanctions on police arrests at this level are meaningless. Vague laws and wide powers effectively sidestep standards of legality and proof by equating the subjective police decision with substantive law and requisite evidence. The police are given the statutory powers to define the limits of the behaviour that constitutes public order. It is not necessary to prove any ill effect, for example, in a breach of the peace, that anyone was offended or even affected: a breach has occurred:

where something is done in breach of public order or decorum
which might reasonably be expected to lead to the lieges being
alarmed or upset. … (Raffaeli v. Heatly, 1949; McBarnet’s emphasis)

So the refusal of members of the public to say they were offended in witnessing the incident, a point regularly made in police reports, is rendered irrelevant, as indeed judges point out to juries, reading out the legal definitions and emphasising: ‘Note that ‘might be’. There need not be evidence that anyone was actually upset’ (Case 93). Nor is there any need to prove intent in cases like these, by, for example, reference to:

any particular act or acts tending to show the purpose or intent;
he may be convicted if, from the circumstances of the case and
from his known character, the court is of the opinion that he was
intending to commit a felony. (Vagrancy Act 1824, s. 12)

No further evidence than the policeman’s general statement of his impression unsubstantiated even by details of how he formed it seems to be required. Hence Case 29 where the accused were convicted of attempted theft from cars:

Prosecutor: And was anything missing?
Policeman: No. They didn’t get in. 
Prosecutor: But you are sure they were trying to get in?
Policeman: The behaviour of the boys left me in no doubt that they were trying to enter the van.

Let us now return again to Mr. Rosenfeld’s social reformist political rhetoric: 

Shouldn’t that institution [the police] be thoroughly transformed, by political struggle, into a more humane, limited and less autonomous one?

Given the above situation, how does Mr. Rosenfeld propose to remedy the situation? Through phrases? He refers to “political struggle,” and yet I have yet to see Mr. Rosenfeld engage in political struggle in this area. How are arbitrary arrests to be prevented? How is the main focus of police on petty offences (if indeed they are offences at all) to be transformed into a more humane form?  Political struggle for him must mean–engaging in political rhetoric (in order to hide no real political struggle through challenging the power of the police and courts either on the streets, by way of his writings or a combination of the two). 

Furthermore, what does he mean by “more humane police institution?” Some police institutions are certainly better than other ones (where police are personally corrupt in various ways versus not being so, for example), but the police as an institution is in itself inhumane and an expression of inhumanity. Mr. Rosenfeld, through his rhetoric, really wants the police to continue to exist indefinitely; that is the practical meaning of his political rhetoric. His reference to “more humane police institution” is an “abstract slogan”–a slogan with little meaning in the real context in which workers, citizens, migrants and migrant workers live and experience this world. 

Let us now return to McBarnet’s exposure of the reality of law as opposed to its rhetoric. Minor charges (which are the vast majority of criminal charges) require little proof for guilt to be found. Court bias–and hence the bias of the law–is to assume that the police are telling the truth and that the charged person is lying unless there is evidence to the contrary. Police who arrest on the basis of minor charges in effect are assumed to be disinterested or neutral in making the charge rather than individuals whose prime function is to maintain social order in a society dominated by a class of employers. From page 35:

For the minor offences which dominate the courts incrimination is not a problem either practically or legally. Indeed the three analytical stages of incrimination, assembling a case, and convincing the court collapse into one. The policeman’s observations constitute the grounds for arrest, the substance of the case, and the authoritative presentation to convince the magistrate. There is little at issue for the court to decide in its role of reaching a verdict-nor indeed for it to control in its role of watchdog on the police.

Conclusion

Arbitrary arrest, most arrests involving alleged minor offences,  the unlikeness of challenging arbitrary arrest and the privileges status of police in relation to workers, citizens, immigrants and migrant workers: these are the characteristics of the real rule of law and not the rhetoric or abstract slogan of the rule of law. 

The social-democratic left, however, cling to the their rhetoric or abstract slogan of “transforming the police [and courts]” into a more humane form–without ever specifying how the real world of the rule of law functions nor how they propose to transform this real world of the rule of law into such a more humane form. They cling to the rhetoric or abstract slogan of the rule of law–its public face and by that very fact hide the reality of the rule of law, with its oppressive social structures in the form of oppressive legal structures (courts and police).

Having myself been arrested and subject to police harassment (see A Worker’s Resistance to the Capitalist Government or State and Its Representatives, Part Eight), I find this rhetoric to be quite offensive. It fails to recognize the extent to which people are persistently oppressed in a society dominated by a class of employers and the associated oppressive and exploitative economic, political and social structures. 

Perhaps the social-democratic or reformist left will specify how they propose to ‘transform the police and the law, by political struggle, into a more humane, limited and less autonomous one’? I doubt that they will–or can.

Workers, citizens, immigrants and migrant workers deserve much more–they deserve that their experiences of oppression and exploitation be recognized. They deserve that this recognition be the preparation for the abolition of such oppressive and exploitative conditions. They deserve to live a human life. 

The Real World of the Rule of Law: Courts as Oppressive Organizations, Part Two: The Case, Not the Truth, is Relevant in Court Proceedings

Introduction

This is a continuation of a previous post (The Real World of the Rule of Law: Courts as Oppressive Organizations, Part One). I explored how judges influence what juries define as “reasonable doubt.” As I indicated in the previous post:

The following series of posts are meant to complement the series of posts on the issue of reforming versus abolishing the police (see for example Reform or Abolition of the Police, Part One or Reform Versus Abolition of the Police, Part 8: The Police and the Political Economy of Capitalism).

The following is mainly a series of 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 and enforcing the real nature of the rule of law.

A note on the limitations of the following: Ms. McBarnet draws on English and Scottish law; the situation here in Canada may be somewhat different. If anyone knows of sources relevant for determining the real operationalization of the rule of law in Canada, please provide them in the comments section.

The social-democratic left here in Toronto have little to say about the role of courts in general in oppressing members of the working class, citizens, immigrants and migrants. There are of course particular criticisms of court decisions, but there is no critique of the systemic oppression of the courts.

The Ideology of Telling the Truth Versus Legal Proof and the Construction of a Case

The common-sense view of courts is that a person is presumed innocent until proven guilty. In the previous post, it was shown that the judge influences what is sufficient evidence to convict. 

Another piece of ideology or rhetoric is that witnesses, when they testify, are to provide only the truth and nothing more nor less. From page 12: 

Witnesses are simply enjoined to ‘tell the truth, the whole truth and nothing but the truth’, a fine
piece of rhetoric, devastatingly naïve and blase, but also extremely powerful. …  Indeed when one adds the fact that most trials take place months if not years after the incident in question, and that the court in an adversary system is presented with two conflicting versions of that incident, it becomes incredible that any jury or magistrate can ever feel that what happened has been proved beyond question. Yet in the vast majority of trials it seems they are. The philosophical problem of how one reproduces ‘reality’ thus becomes a sociological one: how is it that in such a situation of ambiguity, conflict, subjectivity, fading or moulded memories, the judges of the facts can so readily find themselves convinced beyond reasonable doubt?

Truth is hardly an issue in courts–despite rhetoric to the contrary. What actually happens (the truth or the incident) and what is presented in court usually diverge substantially. 

It is from a legal point of view and not from the point of view of common sense that is important in trials: From pages 16-17:

Adversary advocacy helps solve the philosophical problem of reproducing reality quite simply by not even attempting it. Instead the search for truth is replaced by a contest between caricatures. Advocacy is not by definition about ‘truth’ or ‘reality’ or a quest for them, but about arguing a case. The concept of a case is such a fundamental part of Western legal thought that we may take it for granted, but it is a method of proof with a history of only two or three centuries, and one which provides a neat example of the abstraction which theorists oflaw under capitalism, like Pashukanis (1978), see as an essential element of the legal form. Just as the concept of the legal subject abstracts him from his real social being, so the case abstracts from the complexity of experience, and in doing so it helps solve both the practical and the ideological problems of proof.

The “case” as opposed to the truth is the central aspect of civil and criminal trials. From page 17:

An incident and a case made out about the incident are not the same thing. Conceptions of reality are multifaceted and unbounded; cases are ‘the facts’ as abstracted from this broad amorphous raw material. The good advocate grasps at complex confused reality and constructs a simple clear-cut account of it. A case is thus very much an edited version. But it is not just edited into a minimal account-a microcosm of the incident-it is an account edited with vested interests in mind. Hence the lawyer’s approach ‘that, so far as possible, only that should be revealed which supports his case’ (Napley, 1975, p. 29). Far from being ‘the truth, the whole truth and nothing but the truth’ a case is a biased construct, manipulating and editing the raw material of the witnesses’ perceptions of an incident into not so much an exhaustively accurate version of what happened as one which is advantageous to one side. In relation to an incident, then, a case is partial in both senses-partisan and incomplete. The good advocate is not concerned with reproducing incidents but producing cases, not with truth but with persuasion.

The editing of an incident arises through the twin legal aspects of proof: relevance and admissibility. From page 15: 

 … the problem of ‘unbounded reality’ is tackled by the notions of admissibility and relevance.

This situation applies as much to the prosecution as it does to the defense in the case of criminal charges. Despite the rhetoric of the prosecutor being “an impartial minister of justice” (page 19), the prosecutor systematically engages in the construction of a case (rather than determining the truth of an incident) in order to obtain a conviction. Pages 19-20:

… the prosecutor has a duty to give to the defence the names of witnesses whom he does not intend to call but who do have material evidence to offer (Archbold, I979, s. 433). The word ‘material’ is the
key. It indicates that the prosecutor is assumed to present a case selected for conviction rather than one that sets out all of even what he sees as the material facts. Again, the prescription for how and to
what end examination-in-chief should be conducted-‘to adduce relevant and admissible evidence to support the contention of the party who calls the witness’-makes no exception for the prosecuting
counsel (ibid., s. 512).

At the level of practice there is no doubt that prosecutors do act out the normal advocate’s role of arguing a one-sided case:

Presenting prosecutors as representatives of justice rather than as biased individuals who construct a biased case to obtain a conviction is ideological and serves to distort the real nature of legal systems (page 21):

… the notion of the prosecutor as a ‘minister of justice’ not only functions at the ideological level both in the rhetoric of the Bar as to their role, and in general to support the view of a system of justice bending over backwards to ensure the innocent are not convicted, but is also an idea that is put to good practical use by prosecutors in court to support the credibility of their cases as
opposed to the biased nature of the defence’s:

Prosecutor: Ladies and gentlemen, my function is to elicit as much evidence as possible to put before you. My friend’s is to defend his client’s best interests. I act in the public interest. (Case 103)

Representing the prosecutor as the “public’s interest” is hardly itself the truth of the situation; the prosecutor constructs a case just as much as does the defense lawyer. Consequently, the reference to “public interest” serves to hide the truth of the situation. Truth is hardly the central focus of the legal system (but, of course, if you are found lying within the legal system, you may suffer legal repercussions–despite the irrelevance of the truth often enough in legal proceedings). Page 20:

the examples throughout this book are readily supported officially by the Fisher Report on the Confait case, in which three youths-two of whom were mentally subnormal-were convicted of murder on the basis of impossible confessions-impossible, because it was subsequently proved that Confait could not possibly have died as late as the confessions alleged. But ambiguities over the time of death were
filtered out by the police and prosecution in constructing and presenting their case. Fisher (I977) notes at the prosecutor’s courtroom examination of a pathologist on the crucial issue of the time of death:

It might well be that, if Dr C. had been given sight of the other evidence and asked to reconsider his evidence in the light of it, and had been asked the relevant questions in a neutral way instead of being asked to suggest ways in which the period for the time of death could be extended after midnight, the course of the trial would have been different and an acquittal might have resulted. (Fisher, I977, p. 223)

Or again:

… far from trying to make the time of death more precise, those concerned with the investigation and prosecution … made every effort to keep it as vague as possible. The reason for this was that they were concerned to establish a case which rested wholly or mainly on confessions which could not be entirely true unless the time of death was outside the brackets given by [the experts). (Ibid., p. 20)

Of course, most social democrats and social reformers will simply ignore this situation. They either ignore legal oppression altogether, or make vague assertions about “transforming the system” into “a more humane form” (see the first post in this series about such a claim by the social democrat Herman Rosenfeld here in Toronto). Social democrats, rather, rely on such vague phrases as the “rule of law” or “democratizing the law” and similar clichés to justify their reformist views (and, indeed, their lack of practical engagement in trying to change the economic, political and social structure).

But let us continue. The construction of a case rather than determining the truth limits the function of witnesses to respondents to lawyers’ questions (which are, of course, designed to elicit responses to favour their specific construction or version of the case). From page 22:

A further feature of the form of presenting proof is that it is interrogatory. Evidence is not presented directly by witnesses, but indirectly in response to questions by counsel. The rules prohibit leading questions but the very framing of a question, whether leading or not, and the context in which it occurs, set parameters on what can be an acceptable answer. The witness is a respondent, ‘he
is there to answer questions, that is all’ (Cockburn, I952, p. IO ), and the person who asks the questions is structurally very much in a position of control (Atkinson and Drew, I979) and quick to interrupt witnesses or warn them to confine themselves to the essential facts they are being asked about, or indeed merely to answer yes or no. 

The construction of a case rather than the determination of the truth in court then presents only a partial contextualization of particular facts–a contextualization that excludes other facts deemed irrelevant to the construction of the case at hand. If witnesses offer facts deemed irrelevant, they may be reminded to confine themselves to answering the question asked of them. Pages 22-23:

Prosecutor  [to victim] Did you know him [the defendant] previously?
Witness: Yes we had a scuffle the night before.
Prosecutor [sharply] Mr Sweeney, the question was very simple. Please answer yes or no. Don’t volunteer anything. Understand? (Case g8)

What is often a gray area of unclear and contradictory facts not only becomes presented as clear facts by either lawyer but is often stripped of the meaning given to them by witnesses. From page 23: 

The questions ‘should be clear and unambiguous and as short as possible, each raising a single point’ (Walker and Walker, I975, p. 360) so particularising and abstracting the facts relevant for the case from the multiple possible facts of the incident. This style of presentation helps construct an idea of clear-cut proof, by filtering and controlling the information witnesses make available to the court, and so transforming what could emerge as an ambiguous welter of vying and uncertain perceptions into ‘the facts of the case’.

Interrogation means not just filtering potential information but imposing order and meaning upon it by the sequence and context of questions asked-whatever meaning it may have had to the witness, control by questioning can impose the meaning of the questioner. The case thus takes on its own logic within the framework of the ‘facts of the case’, and any other issues mentioned, hinted at or unknown, lose any relevancy to the meaning of the case that they may have had to the meaning of the incident.

It is not only the right (or rather obligation) of a witness  to answer only questions posed by the lawyer that leads to the filtering of what happened; the right of the lawyer to sum up the “facts of the case” (and not the witness) can easily lead to a distortion of what the witness is saying. From pages 23-24: 

Prosecutor: Weren’t you making as much noise as the others?
Accused: No I was trying to quieten them down.
Prosecutor: You were saying ‘Ssh’ in a whisper?
Accused: No I was saying ‘be quiet or you’ll get into
trouble’.
Prosecutor: And they were making a lot of noise.
Accused: Yes.
Prosecutor: So you had to raise your voice so they’d hear you.
Accused: Well maybe a wee bit.
Prosecutor: So you were shouting and bawling.
Accused: No.
Prosecutor: You just said you were! (Case 19)

The right of the advocate not just to question but to sum up-a right denied to the witnesses themselves-allows still further editing, abstraction, and imputation of meaning to be imposed on what witnesses say.

But, it may be said, the lawyer for the defense at least can do the same thing as the prosecutor (although we have already seen that prosecutors, unlike defense lawyers, use the ideological ploy of claiming to represent the “public interest”). What of the presumed need for the court to show, beyond a reasonable doubt, that the accused is guilty? In the first post, we have already shown that judges narrow proof of guilt by limiting what counts as sufficient proof of guilt. 

Are the so-called legal provisions that protect the accused, such as the presumption of innocence until proven guilty,  actually in truth the way they are presented as being? Or are the legal provisions more like fiction? I will pursue the matter in a future post in this series. 

By the way, before my experience with a court-ordered assessment of the relationship between my daughter, Francesca, and her parents, on the one hand, and the relationship between the parents, on the other, despite calling myself a Marxist, I was naïve enough to believe that the truth was relevant in court manners. I learned the hard way–and so did my daughter indirectly–just how far from the truth court-constructed cases can be (see the series of posts with the title “A Worker’s Resistance to the Capitalist Government or State and its Representatives,” such as  A Worker’s Resistance to the Capitalist Government or State and its Representatives, Part One  or A Worker’s Resistance to the Capitalist Government or State and Its Representatives, Part Four). I am no longer that naïve. 

Conclusion

The ideology that telling the truth is of prime importance in courts is just that–an ideology. What really happened and what is presented in court can diverge widely. Defense attorneys formulate a case and so too does the prosecution. The case is what is important–not the truth. The rules of evidence, for example, restrict what can be presented, and witnesses are asked questions that the defense or prosecution deems relevant to presenting the “case”–and not the truth.

And yet, on TV programs and in movies we are often presented with the proverbial “Do you solemnly swear to tell the truth, the whole truth and nothing but the truth?”–and yet the truth is one thing that really is irrelevant at court. 

But why does the left not criticize this ideology? Should not the left expose the farcical nature of various social structures, including the legal system? Why is there not discussion about the real nature of legal proceedings? Why is there too often acceptance of the illusion–the ideology–of the rule of law? 

What do you think?

The Real World of the Rule of Law: Courts as Oppressive Organizations, Part One

Introduction 

The following series of posts are meant to complement the series of posts on the issue of reforming versus abolishing the police (see for example Reform or Abolition of the Police, Part One or Reform Versus Abolition of the Police, Part 8: The Police and the Political Economy of Capitalism).

The following is mainly a series of 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 and enforcing the real nature of the rule of law.

A note on the limitations of the following: Ms. McBarnet draws on English and Scottish law; the situation here in Canada may be somewhat different. If anyone knows of sources relevant for determining the real operationalization of the rule of law in Canada, please provide them in the comments section.

The social-democratic left here in Toronto have little to say about the role of courts in general in oppressing members of the working class, citizens, immigrants and migrants. There are of course particular criticisms of court decisions, but there is no critique of the systemic oppression of the courts.

Alternatively, some social democrats imply that the court system somehow embodies the “rule of law,” which is something positive. Thus, the social democrat Bruce Campbell (Adjunct Professor York University, Department of Environmental Sciences (and former Executive Director (1994-2015) of the social-democratic organization Canadian Centre for Policy Alternatives (CCPA)), in July 2008, published the article “A Denial of Fundamental Justice: Conservatives’ no-fly list violates rights, rule of law” in the CCPA journal The Monitor:

Since September 11, 2001, both Liberal and Conservative governments have introduced a vast array of measures that they claim are needed to combat terrorism. Some are enacted through laws such as the Public Safety Act and the Anti-Terrorism Act. Many others have come into being through bilateral agreements with the United States, such as the Smart Border Declaration and Action Plan, and the Safe Third Country Agreement.

These measures, which dramatically expand state power at the expense of our deeply held rights and freedoms and the rule of law [my emphasis], were not needed to deal with a genuine security threat. They were introduced mainly in response to U.S. government intimidation to bring Canadian security measures into line with draconian U.S. practices, and from Canadian business wanting to “do what it takes” to keep trade flowing across the border. (This harmonization process continues under the North American Security and Prosperity Partnership.)

Components of the Rule of Law

Ms. McBarnet’s book gives the lie to the idea that there is such a thing as the “rule of law” in the sense of the application of laws in a consistent and fair manner. Of what does the rule of law supposedly consist? Page 2: 

The conviction process in the legal sense poses a problem for explanation because it raises a strange paradox. All the rhetoric of justice we are so familiar with presents a picture of a system of criminal justice bending over backwards to favour the defendant rather than the prosecution. Every accused has the right to a fair trial. He is innocent till proved guilty; it is the prosecutor who must prove his case. What is more, the accused has a right to silence, he is not a compellable witness and he need not incriminate himself, so that the prosecutor has to be able to prove his case without the cooperation of the accused

Wow. These are an impressive list of legal rights–if they exist. Did Mr. Campbell inquire into whether in fact they do exist, or did he assume that they existed? 

The Paradoxes of the Rule of Law

Those who refer to the rule of law without further ado have some explaining to do since the rule of law ends up resulting in some interesting effects that seem to contradict its positive nature. Page 2:

The accused need prove nothing, but can choose if he wishes to establish a defence case to counter that of the prosecution with the less stringent requirement not of ‘proof’ but merely of raising a reasonable doubt, and he may use legal expertise to do that. The whole flavour of the rhetoric of justice is summed up in the idea that it is better for ten guilty men to go free than for one innocent man to be wrongly convicted. Why then the paradox that the vast majority of cases processed through a criminal justice system so geared to favouring the accused results in a finding of guilt?

The social-democratic left, like Bruce Campbell, remain silent about this fact of the real rule of law. Why is that? Perhaps because they cling to the rhetoric of the rule of law and hence to its ideology rather than to its real nature? 

The social-democratic or social-reformist left, by clinging to such an ideology, contribute to the perpetuation of the oppressive nature of law. 

Let us continue. Page 2: 

In the rhetoric of justice everyone is entitled to a fair trial; yet most defendants plead guilty. In the rhetoric of justice any reasonable doubt should result in acquittal; yet for the clear majority of cases the court is convinced beyond reasonable doubt, despite all the rhetorical hamstrings on police and prosecution, that the accused is guilty. Why?

One obvious answer is that mainly the guilty pass through the criminal justice system and therefore are indeed found guilty because they are guilty. Page 2: 

One answer might be quite simply that the defendants are guilty; the case against them is too strong to be plausibly disputed; the facts speak for themselves. Sir Robert Mark has suggested indeed that the very limitations placed on police and prosecution bringing a case to court make it highly probable that only the indisputably guilty come through the process at all.

However, being judged guilty of a crime is not a self-evident fact. What activities are defined as crimes and the procedures and the processes for determining whether an activity constitutes a crime are not self-evident; they form part of a social process of defining an activity as a crime. Page 3:

But this is where we come to the process of conviction in its other, subjective, sense. Given the ambiguities and uncertainties that dog real-life incidents, how are clear-cut facts of the case and strong cases produced? How do judges and juries come to be persuaded beyond reasonable doubt by one case or another? Evidence, the facts of the case, strong and weak cases are not simply self-evident absolutes; they are the end-product of a process which organises and selects the available ‘facts’ and constructs cases for and in the courtroom. Behind the facts of the case that convince judges or juries to an unambiguous verdict lies a process of construction and a structure of proof that need to be probed and analysed.

… What exactly are the procedures of criminal justice that are so readily assumed to protect the accused? For though they are constantly referred to in theory and in practice they are remarkably little investigated.

Both the social-democratic left and the right, despite their many differences, share the assumption that the rule of law provides many safeguards for protecting the rights of the accused. Page 5: 

Throughout the debate of the 1970s both those advocating law geared more to crime control, like Sir Robert Mark, or his successor as Metropolitan Police Commissioner, Sir David McNee, and those advocating more effective civil rights, like the National Council for Civil Liberties [NCCL], tend to assume that the law does incorporate safeguards for the accused. Hence from one perspective the police are too hamstrung by the law to do their job and the guilty go free; from the other, the law does not work because the police abuse it to secure convictions. So NCCL writers note: 

All policemen are under the same pressure; bend the rules to deliver the goods in the form of convictions. . . . It is the abuse of police powers in these circumstances-arrest, search and questioning that has created the most intractable police/civil liberty problem in recent years. (Cox, 1975, p. 164. [Ms. McBarnet’s emphasis].

For both the the social-democratic left and the right, the problem is not the rules of law themselves but the abuse of those who are supposed to uphold them. Pages 4-5:

The assumption has been in effect that the law incorporates rights for the accused, and the problem has been simply to ask why and how the police and courts subvert, negate or abuse them.

The Rule of Law as Rhetoric Versus the Rule of Law as Reality

The issue is not this or that particular abuse of the law by judges (courts) and the police; it is obvious that that happens. The issue is whether law as it is operationalized is itself an abuse.

Social democrats and the right both operate at the level of the rhetoric of the rule of law–and not at the level of real law, which is the operationalization or the putting into practice of law on a daily basis. Page 6:

But does the law incorporate due process, safeguards for the accused, civil rights? The vague notion of ‘due process’ or ‘the law in the books’ in fact collapses two quite distinct aspects of law into one: the general principles around which the law is discussed-the rhetoric of justice-and the actual procedures and rules by which justice or legality are operationalised. The rhetoric used when justice is discussed resounds with high-sounding principles but does the law incorporate the rhetoric? This cannot simply be assumed; the law itself, not just the people who operate it, must be put under the microscope for analysis.

It is necessary to inquire into whether the legal system actually does what it claims to do: to protect the rights of citizens (if not immigrants and migrants) from abuse. Page 8:

To question whether the law incorporates its own rhetoric is to ask whether deviation from standards of justice and legality are not merely the product of informalities and unintended consequences at the level of petty officials, but institutionalised in the formal law of the state. This has implications for how the state rules. One of the essential justifications of the democratic state is precisely that it is based on legality, that the relationship between the state and the individuals of civil society is one governed not by the arbitrary exercise of power but by power exercised within the constraints of law. The criminal justice process is the most explicit coercive apparatus of the state and the idea that police and courts can interfere with the liberties of citizens only under known law and by means of due process of law is thus a crucial element in the ideology of the democratic state. To question whether the law in fact incorporates the rhetoric of justice is to question the ideological foundations of the state. It is to raise the possibility of contradictions within dominant ideology and questions about the mechanics of its management. It is to raise questions about what the whole idea of the rule of law means and how it operates.

The above quotes are taken from chapter one of Ms. McBarnet’s book. Chapter two of her book is titled “Convincing the Court: The Structure of Legal Proof.” She has this introductory thing to say about the rhetoric (not the reality) of legal proof:

The core of the liberal democratic concept of criminal justice is that a person is innocent until proved guilty. Justice does not rule out punishment; on the contrary it deals in ‘just deserts’. What the ideology of justice is opposed to is arbitrary punishment. The important criterion in dealing out ‘just deserts’ is that the recipient should have been proved guilty.

… 

The trial is where that process of proof is not only carried out but put on public display-where justice has not only to be done, but be seen to be done. The plausibility of the trial as a process of proving the accused guilty is one criterion by which the ideology of justice stands or falls.

One of the issues is what judges understand by “reasonable doubt.” In cases where there is a jury, it is still the judge who decides what constitutes sufficiency of proof; it is the jury (if there is one) that decides whether what is offered as proof is credible or not. In other words, if the jury finds certain events are indeed facts (are credible), the number of credible facts  will determine whether the accused is considered guilty or not (and the number of pieces of credible facts is determined by the judge). Page 13: 

So the courts have drawn a line at what will do as proof. Prosecutors do not have to prove everything a jury might want to know, they only have to produce a sufficiency of evidence. Juries have to be convinced beyond reasonable doubt-but they cannot choose the issues that they have to be convinced about: sufficiency and credibility are distinguished in law. The law defines how much evidence constitutes ‘sufficient’ to prove a case and it is the judge’s role to decide that this standard has been met. The jury’s role is to decide whether they believe it. But the legal demands involved in ‘sufficiency’ are often rather lower than one might expect. Indeed from judges’ summing-up addresses it seems clear they recognise they have to persuade juries-whose only knowledge of the law is after all the rhetoric-that enough evidence is not as much as they might think.

Ms. McBarnet then provides evidence from real court cases of how judges impose their own view of what constitute sufficient evidence to convict (to find the accused guilty as charged). Pages 13-14: 

In Case 103 where the accused was charged with theft but the goods were still alongside the car they had been stolen from, the judge took pains to point out this was not mere attempt but legally constituted theft:

But note this, ladies and gentlemen, [then he picked up and read from a legal text] it is sufficient to complete the crime of theft if the thing be removed for the shortest time and [loudly] but a small distance … and he continued for two minutes with the details.

The same applies in another case:

In Case 91 the judge addressed the jury:

You might expect you would need an eye-witness for proof, but that is not necessary in cases of theft. There are facts and circumstances from which theft can be inferred without eye witnesses. Here the Crown can infer theft according to the doctrine of recent possession …

Again, in another case: 

In Case 93, where one of the charges was breach of the peace, the judge (the same one as in Case 103) again read from a law book on the definition of the offence (having prefaced the law with the comment that this was a common but fundamental offence, ‘because without the peace there is no order, and if there is no order there is certainly no civilisation as we have been brought up to know it’):

Breach of the peace is behaviour which “might reasonably be expected to lead to lieges being upset”. Note that “might be”. There is no need to lead evidence that anyone was upset.

He continued on the question of evidence for the second charge of assault with an ornamental sword:

It was perhaps revealing that the accused’s idea of assault was an idea held by many-hitting a person. That is not the law. An assault in law [and out comes the book again] is an intentional attack on the person of another whether it injures him or not. To aim a blow at a victim is an assault though the blow never lands, to set a dog on someone, to make a gesture of violence are all assaults. Disabuse yourself of the idea that there’s got to be blood, got to be bruises. To aim a blow, a fist, a boot [pause] a sword,
[pause] is assault.

The reality of what constitutes “reasonable doubt” and the rhetoric of the prosecutor having to prove “beyond a reasonable doubt” gives the lie to those who claim that we merely need to transform the legal system, such as the social democrat Herman Rosenfeld, here in Toronto. Let us see what he writes:

Shouldn’t that institution [the police] be thoroughly transformed, by political struggle, into a more humane, limited and less autonomous one?

(For a criticism of his defense of the idea of “transforming” the police into “a more humane, limited and less autonomous institution,’ see, among others, the post Reform or Abolition of the Police, Part One). 

Although Mr. Rosenfeld refers to the police, his logic applies as well to the courts. Perhaps Mr. Rosenfeld and other social democrats will provide us with a description of how they propose to reform the courts in such a manner that judges do not influence how “reasonable doubt” is defined. 

My prediction is that they will neither provide any such description nor, for that matter, will they actually attempt to “transform the courts (and police) into “a more humane, limited and less autonomous institution.” I have not seen any articles written by Mr. Rosenfeld that indicates that he has initiated any attempt to “transform the police (and courts] into a more humane,, limited and less autonomous institution.”

This should not surprise those who read this blog. Social democrats often. on the one hand, accept the rhetoric (ideology) expressed by various social institutions and, on the other, do not lift a finger to really change those institutions in any fundamental way.

I will continue quoting from McBarnet’s book and providing comments in the next post in this series.