Date: Wed, 25 Mar 1998 19:34:41 +0000
From: James Heartfield <James-AT-heartfield.demon.co.uk>
Subject: Re: M-TH: Judges and Authoriatianism in the State


In message <c235d440.35194ce5-AT-aol.com>, LeoCasey <LeoCasey-AT-aol.com>
writes
>
>It is as much as what is not said, as what is said, in James H.'s assault on
>the role of an independent judiciary. And what is not said is what reveals how
>much his argument is one with the most reactionary attacks qua Robert Bork, as
>Justin has suggested.

Oh well that's convenient. Why criticise me for what I do say when it's
so much easier to criticise me for what I don't? As in

'It's as much what is not said, as what is said in Leo C's assault on
democracy, and what is not said reveals him to be at one with ______
[complete according to tastes from list of Adolf Hitler, Margaret
Thatcher, Joe Stalin etc].'

Leo's debating style seems to be drawn from the Stalin school of
falsification (of which I see he is an honours graduate). But all this
childish 'right-wing' smearing is a defence of what? 'The Independence
of the Judicary'.

Does anybody in this day and age really believe that ludicrous myth, let
alone seek to defend it? Is the medieval system of chambers and judicial
promotion to be defended? Why not the House of Lords while you are at
it?
>
>One would never guess from all of this that the real danger of 'creeping'
>authoritarianism in the modern state lies not with the judiciary, but with the
>executive. 

Well that's an interesting thesis, but what has it got to do with our
assessment of the judicary? By all means make an argument along those
lines. But in itself that could hardly mean that the judges were a good
thing. This kind of faulty reasoning reads: 'don't pay attention to
that, pay attention to this'.

OK so let's look at this

>As Poulantzas noted in his last book, 

That was some time ago, now. Does anyone still read Poulantzas|? I
suppose you might if you were paid to. Did he commit suicide because he
just ould not bear the idea of reading another one of his own mind-
numbingly boring books? Or was it because he realised that his ally and
collaborator Louis Althusser was a grade 'a' lunatic?

>_State, Power, Socialism_,
>with considerable and telling insight, 

hahahahahahahahahah

>the central dynamic of the modern state
>was an authoritarian statism -- "intensified state control over every sphere
>of socio-economic life combined with the radical decline of the institutions
>of political democracy and with draconian and multiform curtailment of so-
>called 'formal' liberties, whose reality is being discovered now that they are
>going overboard." (p. 204.) This radical decline is marked, he notes, by "the
>decline of parliament, the strengthening of the Executive, the political role
>assumed by state administration." (p. 217.) 

And might that 'state administration' not also include the judicary?
Isn't the judicary assuming an ever more political role? Example: the
enhanced powers of Lord Irvine. Could it be that Poulantzas was a
precursor of Robert Bork!

>Further: "real power is thus
>rapidly being concentrated in tighter and tighter structures, tending to move
>towards the pole of the governmental and administrative summits. Always of a
>more or less fictitious nature, the already greatly reduced separation of
>legislative, executive and judicial powers in the bourgeois State is itself
>subject to final elimination." (p. 227)

Well, it is pretty bog standard rehash of Stalin's 'the state is the
terroristic tool of finance capital'. But I still don't see how this
disagrees with what I say. Here's Poulantzas on the separation of
powers: 'more or less fictitious'. Nicos and Leo should know that the
doctrine of the separation of powers is a conservative monstrosity
designed to curtail the power of parliament, along with mixed
constitutions, Houses of Lords, Monarchies and the like. It owes more to
Lord Acton than the people.

>
>James H. is an advocate, all in the name of 'democracy', of that final
>elimination of the separation of powers. 

Which is in any event fictitious.

>The judiciary should have no
>independence, 

No, again this is your straw man, not my argument. I entirely agree that
judges should have independence in the application of the law in
individual cases, trying and sentencing. I endorse the Law Lords' call
to take away from parliament the right to set the murder tariff.
Individual sentences should not be subject to political debate.

But as long as we have laws, they should be made by the legislature, not
the judicary.


>but be subjected to a parliament which is ever more under the
>control of the executive.

The sleight of hand here is Leo's. Parliament makes laws. The executive
is a sub-committee of parliament, and draws its authority from
parliament. Where Leo does identify a problem is that in the absence of
a critical political culture, parliament becomes more like a rubber
stamp on the decisions of the executive.

But you miss th most important point:

Unlike the judges, the politicians are elected.

If we do not like them we can vote them out.

Nobody can vote a judge out of office.


At its root the problem of  the legislature becoming a rubber stamp is a
problem of the diminished political culture, rather than an intrinsic
flaw in the executive. as a rule the left got hot under the collar about
the overweaning power of the executive because they were frustrated at
an inability to beat the Conservative Party at the polls.

> The role of executive is never discussed, never
>confronted, simply tucked in, as imperceptibly as possible, into the
>legislature. 

Well that's another article. Why don't you write it? I suspect, though,
your attack on the executive is just a trojan horse for a rejection of
the elected legislature.

>And the judiciary, when it seeks to defend those so-called
>'formal' liberties -- or better, "the dead weight of elitist tradition" --
>from the executive and authoritarian statism, is condemned.

Thankee kindly Lord Denning for standing up for oor ancient liberties. I
doffs me cap to thee, M'lud And let those radicals never say we need a
the franchise when we has good genlmen loik you to look aafter us.
-- 
James Heartfield


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