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Exemplary Justice and Show Trials

Exemplary justice is a very old idea, and it has its origins in the inability of a political entity to effectively enforce its writ. Thus the idea of exemplary justice grows out of an intrinsic limitation of early political societies. In brief, exemplary justice is to make an example of a individual. The horrific punishments that we read about in history are largely a function of exemplary justice: it was so unusual to capture an individual guilty of a crime, that particularly brutal punishments were meted out as a deterrence. Thus the potential criminal would know that his risk of being caught was low, but that, if caught, the punishment would be so horrible that the low risk of being caught is balanced by the disproportionate consequences in the unlikely event of being caught.

It is surprisingly difficult to find contemporary sources discussing exemplary justice; contemporary philosophers of law and politics have had little or nothing to say on the topic. You will not find an entry on “exemplary justice” in any of the major dictionaries of philosophy (such works as I have cited in many previous posts), yet I found an exemplary characterization of exemplary justice from almost a hundred years ago:

“…exemplary justice, as it well known, aims to establish in the social mind a permanent association between the criminal deed and some painful consequence, in order to prevent the repetition of a similar deed in the future. This form of justice pays no regard to the offender; its attention is fixed only on the needs and welfare of society.”

Gustave A. Feingold, “The Association Reflex and Moral Development” in The Journal of Genetic Psychology, Volume 23, 1916, p. 473

Although the contemporary silence on exemplary justice might lead one to suppose that it no longer plays a role in contemporary society, in which the proportionality of retributive justice is carefully calibrated to the nature of the crime, there is one form, however, of exemplary justice that came of age in the twentieth century, and that is the show trial. The use of mass media — newspapers, magazines, radio, and television — to inflame public opinion was central to the mobilization mass sentiment against an offender whose crime subverted principles upon which a given regime was founded.

The most notorious show trials of the twentieth century were stage-managed by the most notorious political regimes of the twentieth century — Soviet communism, Nazi Germany, and communist China under Mao. However, there is a sense in which we can consider the Scopes Trial as a show trial, so such events are not unique to dysfunctional regimes. This recent innovation in exemplary justice demonstrates that, despite its antiquity, the idea of exemplary justice continues to be relevant in our time and cannot be dismissed as a defunct idea.

Civil Disobedience and Popular Ideology

Even as the idea of exemplary justice has largely fallen out of public consciousness, another idea has taken its place, which is closely related to exemplary justice, but which resemblance has not been widely recognized. I am speaking of civil disobedience. Unlike exemplary justice, the idea of civil disobedience is relatively recent, having its origins in the nineteenth century, and, quite specifically, in Henry David Thoreau’s essay, “On the Duty of Civil Disobedience.”

Unlike the idea of exemplary justice, civil disobedience is widely treated in contemporary literature. Here is a concise definition from a relatively recent source:

civil disobedience, a deliberate violation of the law, committed in order to draw attention to or rectify perceived injustices in the law or policies of a state.

The Cambridge Dictionary of Philosophy, 2nd Edition, Editor: Robert Audi, Cambridge et al.: Cambridge University Press, 1999, pp. 144-145

Civil disobedience, although a recent idea, proved to be one of the ideas that shaped the second half of the twentieth century. Mohandas Gandhi was influenced by Thoreau, and put Thoreau’s idea into practice as a mass movement in a country where the colonized masses so greatly outnumbered the colonizing forces that civil disobedience changed the direction of India’s modern history. After Gandhi, Martin Luther King jr. employed civil disobedience in the civil rights struggle in the United States, successfully turning public opinion against segregation laws in the US, which might also be said to have changed the direction of US history.

There are few ideologies that have shaped the fate of nation-states in the twentieth century, as I have pointed on in several posts, especially in relation to environmentalism, which is one of those few ideologies (cf. Ideology in our Time). While civil disobedience is not precisely an ideology, it is not entirely independent of ideology. Civil disobedience can only be effective when the campaign against formal legal institutions has the sympathy of a sufficient number of individuals that social change can be effected by the direct action of these individuals. Thus the content of civil disobedience reflects populist sentiment.

Exemplary Justice and Civil Disobedience

There is a sense in which exemplary justice and civil disobedience are each the mirror image of the other. Civil disobedience could be called exemplary defiance of the law, in order to more explicitly contrast it with the exemplary enforcement of the law. One might say that civil disobedience aims to establish in the social mind a permanent association between injustice and some socially painful consequence.

Exemplary justice is the response of formal, legal institutions to their inability to enforce their writ; civil disobedience is the response of those subject to formal, legal institutions of the inability of those institutions to enforce their writ. Both, thus, are predicated upon the intrinsic limitations of political societies, though the first approaches this from the perspective of the state while the second approaches this from the perspective of the population of the state.

Both of these ideas implicitly recognize Weber’s definition of the state as the legal monopoly on violence; exemplary justice celebrates this legal monopoly on violence, using it to social ends beyond the limits of the use of this violence, while civil disobedience exploits the legal monopoly on violence by not even seeking to employ violence but rather to employ non-violence. If the state as a legal monopoly of violence, it does not retain a legal monopoly on non-violence, leaving non-violence civil disobedience open as an avenue of protest against the state.

When one sovereign nation-state seeks to force another sovereign nation-state to do its will (a close approximation of Clausewitz’s definition of war, “War therefore is an act of violence intended to compel our opponent to fulfill our will”), it goes to war, or otherwise inflicts damage on the other nation-state. Each sovereign nation-state, reserving to itself a legal monopoly of violence, is free to use violence on other sovereign nation-states, and this is what we call war. The anarchic international system allows for the possibility of war though the de facto legitimization of redundant monopolies on violence.

Civil disobedience is parallel to war in its use of mass mobilization, and might be defined as, “an act of non-violence intended to compel our opponent to fulfill our will.”

The shift from state power to popular will is revelatory of the growth of popular sovereignty, which has been definitive of the modern era since the series of revolutions that shook the Western world from the American Revolution of 1776 to the French Revolution of 1789 and then the series of revolutions throughout Latin America that resulted in the decolonization process and the formation of independent nation-states in Latin America.

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Sunday


Riots in Brazil...

Riots in Brazil…

Riots in Brazil. Riots in Sweden. Riots in Turkey. A popular revolution in Egypt now turned sour and the new leadership, placed in power by popular protest, facing popular protest of its own. This week began with a fresh round of protests of renewed vigor and greater numbers (cf. Egypt Morsi: Mass political protests grip cities and Brazil protests resume ahead of Confederations Cup final).

What’s going on? Do these protests represent an unprecedented global popular movement, or a mere coincidence, or is there some contingent relationship among the protests that is more than coincidence but less than the principled unity of a political movement? In short, are the protests one or many?

Riots in Sweden...

Riots in Sweden…

Such events as those in Egypt are not unprecedented, which implies the predictability of such popular unrest. The “People Power” revolution in the Philippines in 1986 ended the decades-long rule of Ferdinand Marcos and installed Corazon Aquino as president of the Philippines. However, it was not long before Malacañang Palace was the focus of popular protests against Corazon Aquino, but an historical parallel like this poses as many or more problems as the comparisons of civil unrest across contemporaneous nation-states, which is in itself problematic.

Of course, a detailed examination of political protests will always reveal unique conditions in each county where the protests occur, with unique historical antecedents to unique events in the present, so that any argument for an underlying unity of globally-distributed protests is prima facie implausible. But while every historical event is unique, individual acts of protest can take on a symbolic value that is not unique, as with the self-immolation of Mohamed Bouazizi, which proved to be the trigger for popular protests that became the Jasmine Revolution and resulted in the fall of the government of Zine El Abidine Ben Ali. What is true across Tunisian society might plausibly also be true across broader swathes of society, potentially even becoming a transnational trigger.

Riots in Turkey...

Riots in Turkey…

However, there are countervailing historical circumstances that suggest the plausibility if not of a globally unified movement, of a contingently unified manifestation of discontents intrinsic to industrially developing societies. (Several commentators on the protests in Brazil have said that the people of Brazil feel unconnected to the major political parties in the country. In other words, Brazil is a lot like the US, where popular protests on the right agitated by the Tea Party movement and popular protests on the left agitated by the Occupy movement each have a vague ideological content that seems to match up with existing political parties, but no robust party loyalties.) It has become a commonplace that social media has made communication global and instantaneous, and indeed this was foreseen in the earlier idiom predicting a “global village” — though it would have been more accurate to speak in terms of a global conurbation, or what Doxiadis called Ecumenopolis.

In contemporary terms this global immediacy of communication has concrete consequences: except for cases where governments radically restrict social media, as in China and North Korea, people know what is going on elsewhere in the world. However, it would be unwise to read too much into the “know” in the previous sentence. The fact of the matter is that people see emotionally charged images, often accompanied with stirring slogans, and they respond viscerally to this. Such images are sometimes called “memes” and are said to “go viral” when they are passed around through social media networks to the point of saturation — i.e., to the point that everyone who uses the internet is likely to have seen these images at some time or another. this we may call the emotional valorization of protest.

Riots in Egypt...

Riots in Egypt…

The intellectual or ideological valorization of protest is to be found in the parallel justifications that are made for protest as the need for rationalization is felt. Protest is defended on the basis of its being non-violent resistance, and the work and the lives of Henry David Thoreau, Mohandas Gandhi, and Martin Luther King jr. are invoked in defense of popular protest, no matter how marginal or unjustified the occasion of protest. But to what extent is popular protest non-violent? One of the central dishonesties of our time is our ambiguity about violence, which is on the one hand sometimes minimized, while on the other hand it is sometimes magnified. The perpetrators of violence minimize their violence, and claim to be responding to the provocations of their victims, while the victims of violence magnify the violence they experience and employ their victimization as a political strategy in the furtherance of their ends.

In all honesty we should admit that protest marches often occupy a gray area between peaceableness and violence, and once a protest has begun it often shades over into violence; sometimes the violence of “peaceful” protests takes the form of systematic attempts to bait police and crowd control officers into responding to provocations in a manner that can then be magnified for the maximum political effect (as just noted above). Exemplary protest, like exemplary justice, has a symbolic value, and this symbol is employed as a tool of political action. A symbol can be the trigger for wider spontaneous action, or it can be systematically exploited by a revolutionary cadre seeking to foment wider action. In precipitating an event that can be transformed into a symbol, protesters create their own propaganda — the propaganda of the deed, as it was once called.

The woman in a red dress being sprayed with pepper spray by Turkish police was among the viral images that rapidly gained global prominence in social media.

The woman in a red dress being sprayed with pepper spray by Turkish police was among the viral images that rapidly gained global prominence in social media.

A protest, then, is always potentially an instrument of mob violence. Moreover, there is no clear line between protest and revolution; the two are separated by a gray area just as peaceful and violent protest are separated by a gray area. An attempted revolution can fizzle into a mere protest, while a protest can snowball, gathering strength and momentum, until it becomes a kind of revolution. Peaceful protest that escalates into violent protest can, if sustained, escalate in turn into revolution. Short of revolution, social unrest and violence that begins in protest can bear some resemblance to the ritualistic rebellions of medieval peasantry, and repressive regimes may tolerate ritualized protest for its cathartic effects.

Established political institutions may be little affected by the waves of protest that wash over it, and which recede like the tide when the storm is over. One thinks in this connection of the Chinese protests over the US bombing of the Chinese embassy in Belgrade. In such cases popular protests putatively in opposition to a given regime play into the hands of state power, which benefits from the release of social tensions.

The Guy Fawkes mask from the film V for Vendetta has become a globally recognized symbol of protest.

The Guy Fawlkes mask from the film V for Vendetta has become a globally recognized symbol of protest.

Clausewitz has been quoted innumerable times to the effect that war is the pursuit of politics by other means. I have also written about Foucault’s corollary to Clausewitz, which is that politics is the pursuit of war by other means. Clausewitz’s principle and Foucault’s corollary constitute explicit and formal recognition of the convertibility of politics and warfare. There is also an implicit and informal parallel to Clausewitz’s principle and Foucault’s corollary, and this is the practical escalation of political protest into violent revolution (the implicit continuity of popular politics with popular revolution) and the use of popular revolution to obtain social concessions (the implicit continuity of popular revolution with popular politics).

The explicit formulations of Clausewitz’s principle and Foucault’s corollary are useful for understanding the explicit, formalized politics of established political entities; the implicit formulations are useful for understanding the implicit, informal politics of mass movements. The two are related to each other as explicit social contract to implicit social contract. This parallelism shows us that the valorization of protest is a parallel to the valorization of the martial virtues in explicit formulations of Clausewitz’s principle. It is easy to ridicule the explicit manifestations of state power such as the praise of military valor and the awarding of medals for such valor, yet all of this is precisely parallel to the implicit manifestations of popular power, such as the lionization of courageous protest and the de facto social recognition of the value of this protest.

Before social media in its electronic form, the Korda image of Che Guevara became a globally recognized icon merchandised on T-shirts, posters, and every imaginable kind of paraphernalia.

Before social media in its electronic form, the Korda image of Che Guevara became a globally recognized icon merchandised on T-shirts, posters, and every imaginable kind of paraphernalia.

I fully realize how what I have written here sounds outrageously reactionary, and that I sound like an apologist for state power, if not an unreconstructed totalitarian. Nothing could be further from the truth. I am no lover of state power, and no apologist for tyranny or totalitarianism. But just as tyrants and demagogues must own their responsibility for their depredations, now more than ever, in an age when popular sovereignty is the unquestioned presupposition of political order, the masses must own their responsibility for their depredations — and depredations are depredations, whether they are committed by a tyrant or by a mob, and regardless of motive. When mobs kill and destroy, it is no comfort to anyone that they kill and destroy in the name of the “the people.”

While tyrants can be made to pay for their crimes by their deaths in paradigm cases of exemplary justice, as with Nicolae Ceaușescu and Muammar Gaddafi (to name a couple of prominent examples from my life time), the diffusion of responsibility found in the collective action of large groups (i.e., a mob) usually means that no individual takes (or can take) responsibility for the death and destruction. This problem needs to be openly acknowledged, if popular sovereignty is not to degenerate into mobocracy.

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