Reviewed by Lee Ruddin, (LL.B: Liverpool); (MRes: London) and (PgCert: Sheffield). Email: leetherudster [at] aol.com.
“It is a common conceit of the current era to believe that we are living in unique times, that present circumstances have thrust us away from previous habits and towards practices that are foreign to us. Currently, politicians are telling the public in many countries that the new forms of terrorism that have arisen since 9/11 demand responses that may cut into previously untouched freedoms. Furthermore the relationship between citizen and state may have to be reordered to cope with the risks to security that this new terrorism poses. And states may have to impose unusual restrictions on citizens’ movements and routines and dissolve some of the protections that have previously been afforded to suspects” (pp.4-5).
Albeit lengthy, the opening passage by Barry Vaughan (Institute of Public Administration, Dublin, Ireland) and Shane Kilcommins (Centre for Criminal Justice and Human Rights, U. College, Cork, Ireland) in Chapter One (“Ending or extending the long nineteenth century of criminal justice”: pp.4-18) is worthy of quoting in full.
First, with regard to the present, it is a common European retort to American policy since 9/11 to say that the only thing unique about the atrocities is that US citizens were the victims. “Welcome to the World,” Arundhati Roy – ungentley and inhumanely – writes in WAR WITH NO END (p.38).
Yet to miss the distinctiveness of Terror Tuesday is to misinterpret today’s terrorism and overlook, what Philip Bobbitt, author of TERROR AND CONSENT: THE WARS FOR THE TWENTY-FIRST CENTRY, calls its “profound periodicity” (p.44): from sixteenth-century privateers and eighteenth-century Barbary pirates to twentieth-century IRA and twenty-first century terrorism. So unique is this period that Bobbitt heads his opening chapter “The New Masque of Terrorism” (pp.23-84).
Secondly, with reference to the citizen and state, the relationship need not be reordered in toto. Rights of the citizen and powers of the state do not exist along a simplistic axial spectrum – moving between the latter in times of tumult or toward the former in times of tranquillity. An increase in one need not mean a diminution of the other.
It is a blunder to think of rights and powers as a zero-sum game (Vaughan and Kilcommins say as much: p.14). Paradoxical as it may seem, increasing the powers of the state can increase the liberties of the people (the authors do not say as much). [*785]
“It may be true that it’s better to let a hundred guilty persons go free than to have one innocent person be detained. But is it also true that it’s better that one hundred innocent people die so that one innocent person not be detained? That’s the world we enter when we go from mere crime to the mass murder of twenty-first century terrorism” (Bobbitt: p.247).
For all of Vaughan and Kilcommins’ hyperbole pertaining to “squashing the values of due process” (p.6), “executive encroachment upon the rule of law” (p.6), “the vulnerability of the rule of law to governmental decree” (p.7) and “the machinations of the executive” (p.14), al Qaeda remains by far the gravest threat to citizens’ movements today – not the “inconvenience and annoyance occasioned by more rigorous law enforcement” (Bobbitt: p. 246).
That said, as Vaughan and Kilcommins point out, “There is a legal dialectic at work which is often overlooked when commentators talk of the suspension of law. They neglect how the judicial habitus, in its constant re-articulation of the rule of law via individualised cases, affirms due process values and continues to provide some protection from arbitrary states power” (pp.13, 18). Chapter Eight (“Conclusion: The war on terror and campaigns for rights: pp.171-177) is a case in point. Rest assured there is certainly no “neglect of the past” on the authors’ part (p.171) and, what is more, neither do they align themselves with the “liberty lobby” (p.172).
Historically-speaking, Chapter Two (“Justice, rights and reciprocity”: pp.19-40) and its chronicling of “crime and modernity” (p.20) followed by the change “from sovereignty to government” (p.21)” proves a page-turning affair. Shortly thereafter, Vaughan and Kilcommins examine the work of three theorists: John Lea, Pat O’Malley, and John Pratt within the neo-conservative and neo-liberal discourses. Talking of neo-conservatism, while “Manichean” (p.27) is one such incontrovertible definition, “baleful” and “malign” (p.29) are – fashionable as they are in academic circles – less so.
Chapter Three (“Reconstructing truth in the criminal law: Moving from an exculpatory to an inculpatory model of justice”: pp.41-66) charts the transformation of the accused in the justice system at different historical points in time: from the birth of centralised production and the death of localised law to the lawyerisation we have today. All the same, Chapter Seven (“Justice beyond the nation-state”: pp.152-170) reports that 1980s “Concerned Parents Against Drugs” practices parallel with trials in the eighteenth and early nineteenth centuries (p.168).
Condensing the Irish story between the eighteenth and twentieth century models of justice is surprising albeit understandable pages later. Up until this point, however, it must be noted that Vaughan and Kilcommins have yet to tackle the subtitle (NEGOTIATING JUSTICE IN IRELAND) – fifty pages in and all we have is the odd reference to its constitution (pp.10, 39) or its colonial status (pp.31, 43).
Chapter Four (“Law in the shadow of the gunman”: pp.67-96), building upon Chapter Three and the localised model of justice being tested to the limit across [*786] Irish Sea from England and Wales, shows how the perpetual paramilitary action entailed that law resided under the shadow of the gunman. The fallout is a dual system of justice: rule of law and rule by law. (Be sure the executive-judiciary polarity is the central theme of the book.) Normalisation of the exception, extraordinary law normalised, call it what you may, but Vaughan and Kilcommins offer five examples of how unconventional laws deal with conventional crime (pp.81-90):
- Gardaí holding and information gathering tactics
- Extra-ordinary measures and non-paramilitary activity
- The retention of the non-jury Special Criminal Court for non-paramilitary activities
- Seizing criminal assets without requiring a criminal conviction
- The acceptance of supergrass testimony in the ordinary criminal justice system
Yet, in stark contrast to the preceding chapter and the shadow cast by the gunman, Chapter Five (“Entrenching the ‘equality of arms’ framework in the ordinary criminal justice system in Ireland”: pp. 97-119) illustrates case law that illuminates a working inculpatory justice system. A conceptually – not chronologically – rich installment is in store.
Of a similar tone, Chapter Six (“Disaggregated Justice”: pp.120-151) charts the delicate equilibrium between accused/state relations and the protection from the state to protection by the state. Vaughan and Kilcommins are at pains to highlight the “thickening” periods of detention concomitant with the “thinning” of interrogation particulars. In a similar vein to Oren Gross and Fionnuala Ní Aoláin (2006), Vaughan and Kilcommins shed light on a dark corner of the legal universe and emergency powers.
Law and politics aside, it is worth noting the authors’ animated style of writing: “Advancing this engine of judicial oversight requires the ‘carriage of due process’ to preserve a space of liberty from executive encroachment” (p.14).
“Our purpose in this chapter is to attempt to paint a very large landscape, capturing broad contours and the sharpest of contrasts rather, than a portrait that is consumed by detail and precision” (p.42).
“. . . herding Irish exceptionalism into one chronologically disordered section” (p.44).
“. . . swampy textual lowlands” (p.98).
“. . . dying sting of the modernist wasp” (p.119).
Make no mistake about it, Vaughan and Kilcommins’ lively intelligence is a beneficial rarity. Historically nuanced, disciplined, not to mention, multidisciplinary, TERRORISM, RIGHTS AND THE RULE OF LAW is a title that is as historical as it is new-fangled which renders it all the more important given that we are living in unique times.
Berger, John (ed). 2007. WAR WITH NO END. London: Verso Books. [*787]
Bobbitt, Philip. 2008. TERROR AND CONSENT: THE WARS FOR THE TWENTY-FIRST CENTURY. London: Penguin Books.
Gross, Oren, and Fionnuala Ní Aoláin. 2006. LAW IN TIMES OF CRISIS: EMERGENCY POWERS IN THEORY AND PRACTICE. Cambridge: Cambridge University Press.
© Copyright 2008 by the author, Lee Ruddin.