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Le salaud lumineux

David Pannick’s Times column today is about the most famous French advocate of the age, Jacques Vergès, a repellent yet compelling figure whose political extremism and cynicism make radical British lawyers look like naive lackeys of the establishment.

He first came to my attention when I was living in France in the mid-eighties and he defended Klaus Barbie, the “butcher of Lyon” in his trial for crimes against humanity. The strategy Vergès employed in that trial was to accuse France of crimes against humanity in its colonies and to argue that it had no moral right to judge Barbie; in essence, to accuse liberal democracy of a hypocrisy so deep as to rob it any moral authority – an argument all extreme leftists use. I think what’s repellent about him is not the people he defends – no lawyer has a problem with the idealism of those who wish to defend unattractive clients to ensure justice is done and injustice avoided. My only difficulty with what I call “defenceism” (that attitude among some criminal lawyers that suggests the state oppresses whenever it prosecutes, that miscarriages of justice are legion and that lawyers should only ever defend) is that it’s sometimes hypocritical itself, since some defenceists want to avoid defending those accused of rape. No, I think what makes people uncomfortable about Vergès is his utter cynicism about law. He doesn’t seem to believe in law as a system for doing right or making human society more moral – but simply and solely in speaking up for those who would destroy law and morality. His book, La Justice est un Jeu, perfectly captures what’s fascinating and replusive about him: in elegant French he tells tales of France’s past crimes, arguing that no court has a firm place from which to judge and that law is a hollow joke. Pannick mentions the missing years of his life: one has to wonder whether he spent the seventies perfecting his political and moral nihilism.

After all that, you’ll be surprised to hear that I can’t help admiring him in a perverse way. You have to be impressed by the way he takes pride in his own scandalousness. He certainly does what he does without fear or favour; and in his own indirect, perhaps unintended way he does serve the public. He’s certainly an intriguing figure. By the way, I once heard him arguing in a TV interview that france should abandon the inquisitorial system of criminal justice and adopt the Englsih adversarial system, which he thinks is fairer to defendants.

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  1. “He doesn’t seem to believe in law as a system for doing right or making human society more moral”

    Well, do you?

    It’s a fundamental question. Parking on a double yellow line is an offence. Is it also immoral? Is it really a function of the law to make society more moral?

    But there’s a great deal more to it than that. I have always believed that legality and morality are two entirely different matters.

    ‘Right’ is a subjective view. And you have to add in all sorts of other factors like culture and religion. Indeed ‘Right’ is a word which has lost all sense and meaning since its overuse and destructive abuse by the current government. So as a start, we should define what we mean by ‘Right’.

    Vergès may be, as you say, a cynic. But he’s also a realist.

  2. Unsworth said – “I have always believed that legality and morality are two entirely different matters.”

    They are! There is not necessarily any link between that which is illegal and that which is immoral. [Back to the old Devlin-Hart debate?].

    Seems to me that the English Bar has got several eminent barristers who are just like Vergès. In murder cases there always seems to be some barrister – (usually a QC) – who manages to conjure up some form of defence or legal argument and this is so in the most clear-cut of cases.

    Whether the English adversarial system is always fairer to defendants is a moot point. It certainly is in some instances such as the recent Kingsnorth case. It is not necessarily so when the defendant is someone who has attracted public opprobrium.

    In any event, the English system is now more loaded against defendants as a result of matters such as “right to silence” legislation; admissibility of hearsay and bad character evidence etc. Someone in an eminent position referred to this as “rebalancing” the system!

  3. Unsworth, Peter, I do believe in law as a moral system, yes, although not in the “enforcement of morals” sense. My approach is a bit different. I don’t think, no, that speeding, say (up to a point) or parking on a yellow line is “immoral”, although I do think there’s an overlap: violence and dishonesty are pretty obviously immoral, I think, but their immorality and illegality are founded on the same reasoning (i.e. the need to protect people) – they have a “common ancestor” rather than illegality being a consequence of their immorality or vice versa.

    What I think is that human society is so much better if founded on the rule of law – if power is subject to the rule of law and distributed according to legal rules, if disputes are settled according to law and if personal conduct is regulated by law – such as criminal law – that it is not only advisable or a good idea or good politics to maintain the rule of law. It’s right to maintain it. Morally right, because people are so much more likely to suffer in an absence of law or rights, that it’s simply wrong to deprive people of rights or support lawlessness. In a sense I’m taking a classical liberal position, but informed by 20th century history my conviction is that the “legal societies” of what we might call the western world are just morally superior to lawless societies, like dictatorships. I think extending law’s empire to govern the conduct of national leaders and of states is a good thing, making a more moral world.

    That’s the discomfort I have with Vergès. Radical defenceist lawyers in Britain sometimes take a stance of opposition to the state – the police, the CPS etc. – but usually they do so from a standpoint that believes in the rule of law, believing that miscarriages of justice can be remedied, that the police should act lawfully and can be held to account by law, and so on. They think law can improve society. The suspicion I have about Vergès is that his career is somehow an attempt to corrode this liberal idea itself, and that he stands for the idea that law and lawfulness do not matter, but are simply oppressive. That he believes in pure political power, in violence even, and not in liberal values. That’s what makes me think of him as a kind of devil’s advocate – not simply who he’s represented. Those people have a right to be defended, too.

  4. Well Carl, that is an interesting position. As I’ve indicated, it would seem that you’re basing the application of law on a common moral code. How would that relate to, say, Sharia Law (which I’d regard as a moral code) or the Talmud, or the intricate differences between Protestantism and Roman Catholicism – and so on ad infinitum?

    Then again, where would European Laws fit into that concept?

    No, I think we should argue for a distinct separation of the religious from the secular, with law (secular) being based upon common values. I’d observe that the rapid expansion of the Muslim communities has (or must inevitably have) an effect upon the legal system. Whether that is a good thing is open to conjecture.

    One should also remember that laws are designed, drafted and approved within Parliament. Whilst there is some ex-officio representation of religion, the majority of parliamentarians do not represent any form of religious (hence moral) belief. But perhaps you might argue that there is a common morality – in which case where is it enshrined?

    Maybe it could be argued that any legal system is just, provided that it is applied equally to all. Legal systems do differ from country to country, and what is regarded as acceptable in one may not be so elsewhere. As but one close at hand instance, the ‘crime passionel’ example comes to mind.

    Of course one needs to consider the relationship between morals and formal religion – but that’s another can of worms altogether.

  5. Carl – We are on fascinating territory! I agree that human society is infinitely better when governed by “rule of law” but it has to be rule of law which somehow emanates from the people who are being governed. How else can it be generally accepted by (and willingly obeyed by) the majority of people? I think you are also right that the majority of lawyers in the UK approach defence work from a basic position of respect for the legal system within which they operate. Nevertheless, I believe that too many spurious arguments are put forward and I do believe that many lawyers do this to make names for themselves.

    Unsworth also touches on the key difficulty in today’s Britain of whether law can be based on a common code. The UK is now a vastly diverse society culturally and it is clear that some forms of conduct are acceptable to some elements in society but are anathema to others. Ultimately, if we cannot achieve some acceptable common code then how can the law be accepted by the people as opposed to a law which is made and imposed?

    Leaving aside philosophy, I think that I too have been persuaded to dislike Vergès. I would certainly hope never to see some of his tactics in a British court.

  6. To change the subject entirely, and in view of the collapse(ing) of the financial system: what do you think of Sir John Davies’ Case of Mixed Money? As in, is it good law or not?

    I ask because this is one of the cases (if not the case) that underpins the common law fiat currency system (which is falling to bits as we type).