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VOLTAIRE'S BASTARDS -- THE DICTATORSHIP OF REASON IN THE WEST |
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14. Of Princes and Heroes There is a curious conceit in the West that our leaders are the product of chance or accident. We therefore tend to complain in an oddly disinterested way about those we place in authority over us. Stranger still, when faced by public needs, problems or crises, we have a tendency to expect the almost-instantaneous appearance of leaders who are appropriate to the situation. The reality is that leaders are rarely produced by either events or accidents. They tend rather to be the natural product of long-term structures and of a civilization's gradual evolution. The citizens' choices are often so limited by these trends that they find themselves obliged to fight wars under the leadership of social reformers, as was the case in Britain, France and the United States for most of World War I. Sixty years later the economic collapse of 1973 found the United States in the hands of a pure politician, devoid of financial common sense. France and Britain were then led by technocrats, whose tools were primarily administrative. Germany alone of the Western nations had a competent economist in place at the right moment and that for reasons unrelated to the immediate crisis. These missed rendezvous are often used as evidence to support the modern truism that democracy is an unwieldy and ineffective way to govern. A more honest and accurate argument would be that democracy is increasingly crippled by the acceptance of rational methodology in the creation and selection of leaders. These leaders are then inappropriate to the democratic process and actually undermine it by working against its inherent needs. From our conversion to reason two types of leaders have emerged: the rational prince and the Hero. The prince remains true to his origins. He was very much the creation of Machiavelli, and then of Loyola, Bacon, Descartes and Richelieu. Modern leaders are not eager to claim these ancestors. Nevertheless, it was Machiavelli's rational prince who multiplied and occupied the positions of administrative power so effectively that he was soon spreading out into politics. The politicians themselves then began to imitate the methods of their employees, thus obscuring the natural and profound enmity between democracy and rational management. As a result the development of the citizen's democratic reflexes was constantly sabotaged and the development of the idea of the democratic leader was alternately blocked and deformed. The general frustration created by these obscure battles eventually produced a new type of leader -- the Hero. He was a facile combination of the democratic and the rational approaches -- simultaneously popular and efficient. He was popular thanks to the combining of the majesty proper to kings with the worship proper to God in order to twist public opinion into adulation. He was efficient because his power left him free to administer without social restraint. Unfortunately this joint solution was a betrayal of both public opinion and public administration. All Heroes, it rapidly became clear, were the enemies of the public interest. And the key to their power was a talent for using effective violence against the citizenry when necessary. Even the Hero who used his power to do good was merely preparing the way for another who would do evil with greater ease. The perplexing question this raises is how a civilization, which emerged from the destruction of the absolute power of kings and churches, in the name of such things as liberty and equality, could have become devoted to such a cult. Stranger still, it was clear from Napoleon on that only the rare individual could become a real Hero, capable of the superhuman feats and weaknesses which destroy the power and self-respect of the citizen. The continued growth of the Heroic option therefore meant the development of a third and more easily attainable leadership type -- the falsely Heroic leader. These people might rise to power through violence, in imitation of the real Hero, or through the established methods of democratic society. But they would deform that process by using Heroic imagery and promises of Heroic efficiency. The overall effect has been that our society now finds itself dominated by the occasional terrifying real Hero, scattered between bevies of false Heroes, most of whom have managed to use the electoral system, and a whole range of unelected rational princes, the leading examples of whom preside over our legal codes. None of these three categories is easily controlled, because their power is the fruit of a profound rejection of the democratic relationship. Princes On October 13, 1761, a thirty-year-old French Calvinist, Marc-Antoine Calas, hanged himself in his' father's shop on the rue des Filatiers in Toulouse. [1] In order to protect his son's reputation, Jean Calas, who was a leading textile merchant, tried to hide the suicide. The tensions between the town's Catholic majority and Protestant minority led to the growth of a rumour that Jean Calas had strangled his son after discovering that he was about to convert to Catholicism. The merchant was subsequently arrested and a protracted trial followed. He was condemned first by the municipal magistrate and later by the Parlement of Toulouse. On March 10, 1762, he was executed by being broken on the wheel, a method which involved stripping the victim naked and tying him with arms and legs spread-eagled to the flat of a large wagon wheel, which was laid on the ground. One or two men then set about smashing his joints and bones one by one with a metal bar. Having been made pliable, the arms and legs were then woven through the spokes. Finally the wheel was raised up to a vertical position and the victim left to die in agony. Calas died protesting his innocence. Such a condemnation also meant that his family lost their civil and property rights. Twelve days later Calais widow went to Voltaire and begged him for help. He was then sixty-eight years old and Europe's most popular playwright. Already one of the most famous men of his day, he was a leading gadfly in the continentwide agitation for political and social reform. A permanent threat of imprisonment in France hung over his head. He had recently Red the service of Frederick the Great of Prussia and settled at Ferney, an estate perched prudently on the French-Swiss border. From there he lashed out in all directions at those who caught his attention. Voltaire's first reaction to Madame Calais plea was that her husband had been guilty. His horror of organized religion made him believe the worst of all sects. However, he investigated the case and became convinced that a great injustice had been done. He wrote to his contacts in Paris -- ministers, courtiers, parliamentarians -- asking them to intervene. They weren't interested. This was a turning point in Voltaire's life. Perhaps the most important. He had never had a great philosophical scheme. However, he passionately desired reform and his already long career had been made up in good part of looking for the right way to force the hand of governments. He had been a courtier and a royal adviser, a playwright and an historian. Three years before he had taken up a specific human rights cause, involving six brothers whose inheritance had been stolen by the Jesuits. He now took personal charge of the Calas case and began pouring out a torrent of words in all directions. In the process Voltaire virtually invented the idea of public opinion and demonstrated how it could be marshalled for a good cause. Instead of arguing from a high plane as the other eighteenth-century philosophers habitually did, he came down to the realities of human life. As a result he developed the idea that specific, heart-rending cases could be converted into great battles which would set standards and force widespread reform. More important, he concentrated on the law -- on legal reform and on the fairness of its application. Of course, Voltaire wasn't the first man of letters to seek social reform through legal reform. Jonathan Swift had taken on endless cases in Dublin in the first half of the century. Voltaire, who was a great admirer of Swift, had spent three months in the same house with him more than thirty years before during his English exile. His later concentration on satirical political novels, pamphlets and poetic attacks owed a great deal to Swift. And Henry Fielding had begun his attacks on the law with a trilogy of plays in 1730. In 1749, by which time Fielding was a lawyer and a justice of the peace, he published Tom Jones, a novel that was in part a demonstration of the need for legal reform. Voltaire used the English model and English thinkers throughout most of his life as the political example to be followed. However, the Calas case was something new. Within a year Voltaire had turned it into the talk of Europe. The misfortune of Jean Calas began to take on mythological proportions. Voltaire kept up his assault. It took two years to force a judicial review of the case. And on March 9, 1765, three and a half years after the execution, the forty appellate judges of the Town Hall of Toulouse unanimously exonerated Calas. Every man and woman in Europe could see and feel that justice had been done. The pattern had been set for the great populist legal battles, which in our century would produce the Dreyfus case and Watergate. As for Voltaire, he was no longer seen as a political gadfly. He was now the defender of Calas and therefore the defender of Justice. He went on to take up a stream of other cases over his last twenty years. The rule of law had thus been fixed in the consciousness of the citizenry as the most reliable tool for controlling leaders and achieving both political and social justice. Only a few years before, the ideas of Montesquieu, a senior judge-turned-writer, had quite naturally been addressed to other members of the elites. Now even the complex and highly intellectual message of the Encyclopedistes had a populist reverberation they themselves didn't quite understand. Their arguments in favour of a strong monarchy bound by an inviolable legal code suddenly caused others to wonder why, since the legal codes were to be inviolable, the monarch had to be strong. That refrain had a longer history in England, but there it took on a new amplification when King George III's refusal to act in a law- biding manner provoked American gentlemen -- including landed gentry and city merchants -- into revolutionary action. It became clear during these and other debates that the new rational public man was meant to be first and foremost a lawmaker. This was to ensure the reign of Justice, which was generally understood to mean the exercise of authority in the maintenance of right. [2] The importance of lawmaking was confirmed by the Napoleonic experience, which demonstrated that, even when a Hero was in power, rule by law was to be second only to military glory. While Napoleon was busy conquering Europe and violating the citizen's most basic rights, he was also putting his name, with the accompaniment of great pomp, to a new revolutionary legal code. It has been central to his Heroic myth that he be given credit for writing, if not all, certainly a great part of the Napoleonic Code. He was described and depicted staying up for entire nights to dictate the new standards of justice. In reality most of the Code had been in preparation before his rise to power. A committee of great legal thinkers then gave it shape. Napoleon made some late drafting amendments and, to his credit, enacted the whole package. Whatever the historical truth, the idea had been established that, while Heroes might seize more arbitrary power than an absolute monarch, they did so on behalf of the citizen. That idea is still with us. Implicit in the new, popular crusade for lawmaking was the question of form and style. The rule of law meant that the actual formulation of the laws must be clear. Without clarity there could be no general understanding among the citizenry; and without understanding, no sense of whether right had been maintained. It has taken two centuries for that clarity gradually to disappear, while the law has grown to become a force in itself rather than an extension of representative decision making. The swelling mass of legislation processed by our assemblies has to do increasingly with administrative methods rather than the enunciation of policy. Most of the laws relate to technical aspects of the system's development. And the sheer weight of the laws makes actual governing almost impossible. With very few exceptions, neither the elected representatives nor the citizens understand the legal structure. Over the last hundred years, our thin legal codes doubled their thickness, then tripled, then quadrupled. As justice took hold in detail, so it seemed to become more demanding, and so further legislation was required. Along the way something peculiar happened. Our languages gradually proved themselves incapable of absolute concepts. The propositions of justice laid out in the seventeenth .and eighteenth centuries had seemed perfectly clear. The subsequent inability of legislators to write legal sentences which could capture these propositions was, at first, blamed on incomplete policy decisions. By the late 1950s, this excuse was wearing thin. Each new law, no matter how well drafted, failed to achieve the marriage of principle with application. Further laws were required to plug the holes which inexplicably appeared or to extend the regulation to areas inexplicably excluded. And each additional law created not fewer but more holes. As the tapestry of the different Western legal systems grew in complexity, so each became less like a fireman's blanket and more like a crazy fisherman's net, which allowed all sorts of fish through -- big and small, depending on such factors as intelligence, luck and money. Criminal law, for example, proved itself not too bad when it came to dealing with amateurs, pretty hopeless with small-time thieves and unable to touch the professionals. Tax laws soon had many major corporations paying less than any employee working on their assembly line, because the corporations could take advantage of hundreds of provisions related to tax loss, special investments, write-offs and shelters, while the employees had their taxes simply deducted at source. The legal profession began expanding by leaps and bounds in order both to plug these multiplying holes and to exploit them. Today there are 350,000 lawyers in the United States; 25,000 in Washington alone, where they devote themselves to governmental structures. In France, the argumentative onus and inquisitory role in law is only partially entrusted to lawyers. Magistrates, notaires and the Conseil d'Etat -- a bureaucratic corps devoted to cases which pit the public against the administration -- account for a large percentage of legal activities, In spite of this, the number of lawyers has approximately doubled over the last twenty-five years from 10,000 to 20,000. There have been equivalent increases in most Western countries. Swelling national legal codes represent only a small part of their work. Administrative regulations are equally important, as are new areas in multinational law. For example, the law of the European Community is now as important as that of each member state. Thus, in the growing maze of technicalities, a cat-and-mouse game began between opposing armies of lawyers, whether struggling over criminal cases, corporate takeovers, taxation policy, environmental standards or thousands of other personal, private and public issues. Only the sides they represented made them opponents. Their skills were the same, Their methods came from the same source. The sides, however, were not equal. Those writing the laws couldn't possibly keep up with those legally breaking them, because the legislator must obey his own rules. As for the mass of lawyers working against the public interest whether for criminals, corporations or individuals with a personal agenda -- they were restrained only by the technicalities and so kept a constant lead over the legislators. The critical mass of laws and the intricate struggles surrounding them began ineluctably to transfer real power from the people's representatives to those who interpreted the legal code. When it came to creating policy, the interpretation of law gradually became as important as that of legislating it, then more important Whatever the constitutions of the nations may say, the reality today is that judges and courts are more important legislators than the elected representatives. This is the third element in the decline of the elected assemblies. Just as parts of the representative's power have gone to the executive and to the administration, so another part has gone to those who argue and apply the law. As the lawmakers have declined, the law itself has grown into a seamless structure. Like administration, it has become both a substitute for policy and a body on whose back policy can be made. *** The fixation of most eighteenth-century thinkers on inviolable legal codes was produced by two factors: their desire to end the intolerable rule of arbitrary, absolute authority and their belief in some sort of social contract. Their assumption was that this contract would automatically encapsulate and defend acceptable social standards. John Locke's Social Contract had been published in 1690, just forty years before Voltaire's exile in England. For most people Locke seemed to have swept away the authoritarian origins of contractualism in the philosophy of Hobbes. Locke's approach was more flexible. And properly controlled authoritarianism didn't bother the proponents of reason. The rational, contractual approach to law seemed to them to provide guarantees for justice. Even so, to a minority these dreams of justice, rendered absolute by the application of unfettered intelligence, seemed dangerously dissociated from the realities of human society. Rousseau, for example, reacted by attempting to reattach the new legal concepts to their roots -- that is, to humanity. "I refer to morals, customs and, above ail, belief: this feature, unknown to our political theorists, is the one on which the success of all other laws depends." [3] In the 1950s that idea was still being expressed by Learned Hand, the greatest American judge of his day and a constant advocate of social justice. Surrounded by the explosion of regulation, he wrote: "I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there no constitution, no law, no court can save it." [4] This same ethos, balancing legal codes with a moral centre, had been perfectly expressed at the moment of America's creation, when Edmund Burke rose in the House of Commons to speak against his own country's opinion and state interest by seeking justice for the revolutionary cause." It is not what a lawyer tells me I may do, but what humanity, reason and justice tell me I ought to do." [5] Burke approached the American Revolution in exactly the same way that Voltaire had approached the Calas case. He sought justice in a specific case, believing that any victory over the details of evil would eventually defeat it in general. But as the web of legal statutes has grown, so the chase after specific justice has, like democratic consultation, become more of a release device than one which leads to general solutions. These focused quests, particularly when they are successful, now often result in even greater injustice. Watergate was an apparently successful quest for greater honesty in American presidents and their entourage. Instead it became a manual for the use of a subsequent presidency, which engaged in far greater dishonesty without the president or his popularity being touched. The general reaction, to legal complexity and the resulting obscurity that encourages legalistic manipulation, has been a growing desire for freestanding laws -- that is, laws rendered inviolable by a bill of rights. Where such bills already exist, as in the United States, the drive has been to strengthen them. This curious movement was created in part by the abdication of the confused and frustrated political classes. If a bill of rights would ensure the justice they no longer felt able to create themselves, then why not surrender some of their theoretical powers to a document which could? The perceived success of the American Bill of Rights lies at the origin of this argument, which has recently been successful in Canada and is steadily growing in England. Lord Scarman, for example, one of the nine Law Lords and Chairman of the Law Commission for seven years, eventually came out in favour of a British· Bill of Rights: "When times are abnormally alive with fear and prejudice, the common law is at a disadvantage; it cannot resist the will, however frightened and prejudiced it may be, of parliament." [6] But how successful has the American Bill of Rights actually been, and in comparison to what other system? Despite U.S. power and riches, no developed country suffers from greater economic and human rights disparities or has higher levels of criminal violence. Forty million Americans are without any access to health care. Racial slums are abandoned by the authorities. In Los Angeles 70,000 young belong to street gangs which murder some 380 of their own every year, as they have each year for the last decade. [7] A higher percentage of the national wealth is in the hands of a smaller percentage of the population than in any other Western country. There are 25,000 murders a year -- a figure which grows to new record levels every twelve months. To this should be added 1.5 million violent crimes per year and 12.3 million property crimes. Only the United States among the Western countries has permitted the return of vigilante groups to help in the maintenance of public order. There is no other way to describe the Guardian Angels who first gave themselves to the New York City subway system and are now patrolling a growing number of neighborhoods. For the constituted authorities to permit their presence, and the public to welcome it, is to concede that the legal system doesn't work at any level, from the policeman on his beat to the Supreme Court justice. It was the Bill of Rights itself, as interpreted by the Supreme Court, which made slavery legal in the Dred Scott case of 1857. That same Bill of Rights negated the results of the Civil War by making de facto slavery legal in the form of Segregation thanks to the court's decision on Plessy v. Ferguson in 1896. Indeed, that same Bill of Rights ended de facto slavery with the Brown v. School Board decision in 1954, only after great internal debate among the judges. In 1905 the Court approved the exploitation of workers, women, children and immigrants, thanks to Lochner v. New York. It continues to find women unequal to men, in such cases as Bradwell v. Illinois or Hoyt v. Florida. In Korematsu v. U.S.A. it also approved the removal by the Executive of the constitutional rights of the American Japanese after Pearl Harbor. This is not to say that legislatures are incapable of acting badly. Over the question of Japanese rights in 1941, the parliaments of both Britain and Canada were guilty in the same way as the American Supreme Court of racism combined with financial opportunism -- that is to say, the removal of rights, internment and forced disposition of property. The point is, however, that the Bill of Rights gave no extra protection, nor did the wisdom of the judges. Still more important, these policy questions central to morality and humanism, central to the very nature of the citizen, were decided by an appointed body. The elected representatives thus escaped all responsibility for decisions which were essential to the moral and physical wellbeing of their electors. Worse still, so did the citizen. Our confidence in the courts, when coolly examined, turns out to be confidence in the judges. It is a confidence based upon a reassuring vision." Unlike most others who pronounce in the public domain, judges appear to offer, and to deliver, clear and definitive answers. Justice according to law is a coin which, when tossed, does not rest on the rim. It comes down head or tails; it is clear who has wop and who has lost. The judge gives his reasons, pronounces the result and withdraws to the chill and distant heights." [8] Lord McCluskey, the senior Scottish judge, gave this description in 1986. Judge Learned Hand put it that the judge's "authority and immunity depend upon the assumption that he speaks from the mouth of others, so he must present his authority by cloaking himself in the majesty of an overshadowing past." [9] Montesquieu was the senior judge in Bordeaux in the early eighteenth century. He described the situation in his limpid manner." When I visit a country, I don't examine whether the laws are good, but whether they are executed, because there are good laws everywhere." [10] Or again, Lord McCluskey: "The judge hears both sides. He passes all the material over his own well-calibrated mind, satisfies himself how the law applies to the established facts, and pronounces judgement which determines the rights and liabilities of the litigants." [11] All this makes the judge sound very much like someone we know. A mythological figure. A disinterested servant of power and justice. One who is indifferent to lobbying and independent from the opinion of the majority. Who tries to decide with the general good in mind. He is, of course, the Prince. Machiavelli's Prince, but also everyman's ideal prince. He is the Goldfriend of Anglo-Saxon literature. He is Solomon and Henri IV, le bon roi and other just kings. He is, above all, the long-lost benevolent despot of the philosophers of reason. He is Frederick of Prussia, Catherine of Russia and Christina of Sweden as Descartes, Grimm, Voltaire and Diderot had hoped to mould them. He is the prince of reason. *** That being so, the judge is precisely what the descendants of reason -- technocrats in all their forms -- have always wanted. Perhaps more important, he is precisely the sort of individual that they have laboured to make our entire civilization feel it ought to want. And in a sense they are right. If we are to have a civilization of systems so complex and unending that they avoid all normal control devices, then we also need a tyrant, benevolent and fair, who will simply say, when the system gets out of hand -- "That won't do. Stop it." But what would be the point in accepting this sacrifice of democratic rights if the legal system and its control devices don't work? The evidence is strong that they don't. Judges have great difficulty in composing fair and clear judgments. The citizen is being squeezed out of his role as jurist. The system seems unable to judge fast enough to keep the system up to date. And worst of all, the law and its officers are capable only of prosecuting the crimes which hardly matter. The major crimes escape them entirely. First there is the question of the judges' ability to judge fairly and clearly. The citizen might be reassured by the fact that Western courts have made a series of generous judgments over the last thirty years. However, that is a short period of time. And even in this new age of justice, their calls have been close, Between 1974 and 1984, 20 percent of the judgments of the American Supreme Court were by margins of 5 to 4. In 1987Justice Lewis Powell retired. Of forty-one cases decided by 5 to 4 during his last term, he cast the majority vote thirty-three times. He was key to decisions on both abortion and affirmative action, although he did not always cast a reform vote. His successor is less generous in spirit. As a result, in early 1989 the Court began to reverse itself on affirmative action in a series of decisions such as Wards Cove Packing v. Antonio. Most of these Supreme Court votes were also by 5 to 4. [12] According to the late reforming justice, Thurgood Marshall, the legal interpretation of the Court has now come full circle, back to the situation before Brown v. Board of Education began the desegregation process. In 1991 the political reversal of the Court majority was complete. Thurgood Marshall became so frustrated by yet another right-wing decision that he resigned. The case in question reversed by 6 votes to 3 earlier Supreme Court decisions on the admissibility of unrelated information in murder trials. [13] No doubt Justice Marshall, then aged eighty- two, was particularly distressed by the knowledge that the pattern of future decisions was established for the next two decades. He described the situation in his dissenting opinion:
In a separate dissenting opinion, Justice John Paul Stevens wrote that "today's majority has obviously been moved by an argument that has strong political appeal but no proper place in a reasoned judicial opinion." Both Justices thus invoked reason and, indeed, Thurgood Marshall opened his moving dissent with the charge that "power, not reason, is the new currency of this Court's decision-making." On one level this is perfectly accurate. However, if you take a longer, historical view, it was the rational conviction that justice can better be accomplished by judicial administration than by democratic politics which first opened the door to the use of executive power to deny justice by determining nominations solely on the basis of ideology. After all, a bill of rights, which can be manipulated for lengthy periods through the appointment for life of justices, removes the responsibility for specific political changes from the democratic process. And Chief Justice Rehnquist, in his majority ruling in the same 1991 case, quite happily said that adherence to the precedents set by the Court's previous decisions "is the preferred course," however, not when a decision is perceived as unworkable or "badly reasoned." And that is where arguments about the nature of justice approach reality. President Reagan, his Attorney General, Edwin Meese -- who escaped on a technicality from prosecution by the courts -- and his supporters always saw the political return of the Right as happening in three stages: first the creation of an accepted philosophical position; then the winning of the presidency; and finally the "roll[ing] back, on all fronts, [of] the liberal conquest of the last half century." [14] That rollback could only be accomplished in the Supreme Court, which is why the most important decisions of President Reagan's two terms were his court nominations. It took only eight years to rebalance the Supreme Court in favour of the Right. President Bush's nominations have created a large majority. A justice usually sits for at least ten to fifteen years. That is, two and a half to four presidential terms during which he is responsible to no one except his own interpretation of the law. The justice is therefore a powerful policymaker. This is by no means limited to the United States. In Canada, which recently gave itself a bill of rights, the now retired Chief Justice of the Supreme Court, Brian Dickson. pointed out that he and his colleagues were now the "final arbiter" of many of the major social policy questions confronting society. Dickson added, "It is power unsought." [15] Indeed, two justices have already had to resign, unable to bear the strain of this new responsibility. And yet the power of judges is seriously hampered. They may not choose problems for consideration. They must wait for them to come to the court. They and the nation may have to wait ten or twenty years for the definitive case in any area of concern to reach one of the supreme courts. It is thus a dangerously passive way to create policy. Perhaps more telling for the citizen is the reluctance of the judges to assume this responsibility. They are themselves exposed to public judgment when they themselves feel only partially responsible. They know that our society did not begin its modern period on an understanding that the judge would be prince. They feel used by the system, like reluctant Caesars, manipulated by their praetorian guard. The citizen's role in the burgeoning legal process is limited to jury duty. This has been absolutely central to the Western idea of fair justice. However, it never goes beyond the first level of trial. Appeals court proceedings are the exclusive responsibility of judges. And as the power of the courts grows, so the role of the jury keeps on shrinking. particularly in the common-law countries. The administrators of our legal systems have been working for some time to narrow the public's role in the meting out of justice. They seem to feel that law has become too complicated for untrained jurists to understand. Juries are therefore now considered unnecessary in an increasing number of trial categories, particularly in Britain. And the powers of juries, where they do exist are increasingly limited. Even the principle of a unanimous verdict has been put aside whenever possible. The idea of being judged by the unanimous decision of one's peers is one of the last areas in which humanism outweighs logic. The juror brings common sense to the court, a factor which is implied by the phrase reasonable doubt. That doubt provides the citizen far better protection than any bill of rights and yet it is slipping away without a murmur of protest from the public. When, in 1972, the U.S. Supreme Court abandoned the fundamental principle of jury unanimity for state trials in their decision on Apodoca v. Oregon, Justice Thurgood Marshall wrote in dissent:
Put another way, our elites do not trust our judgment. The experts who have influence on law reform -- whether inside the bureaucracy, the law societies, the courts or the influential law firms -- will never put it that way in public. Instead they argue that the present system is awkward and old fashioned. The rational argument, as always, is for efficiency. *** Perhaps these arguments would be acceptable if they carried with them a conviction that the result would be a wider application of greater justice. Even on the technical front, efficiency reforms have not solved any problems. The process of justice falls farther and farther behind the event which provokes it. Between the charging of an individual and the final resolution of the case, one, two, three, even four years may go by. If the charge is a serious one, the existence of everyone involved will slip into limbo. The delays now associated with justice send a signal to all citizens: they cannot rely on the legal system to protect them, because involvement with the courts will be a destructive, not a protective, experience. Those responsible for law reform deny none of this. They say it is proof of the need for more drastic reforms. But their earlier changes have now been in place long enough to bear responsibility for a worsening situation. No doubt there is an urgent need for massive reform. But there is nothing to suggest that the "efficiency" sought by official law reform committees in every Western country can solve our legal problems. This sort of reform seems' to be little more than tinkering. The more fundamental problem is that the statutes cannot deal with the agility and imagination attached to major crimes because our legal systems are designed to deal with specifics. And specifics for the intelligent are like obstacles on an obstacle course, The difficult spots are highlighted. You go around them. Periodically, however, even the intelligent make mistakes, They become overconfident or overintelligent. They become carried away by a lax or corrupt political atmosphere or by an overheated economy. And so they get caught. From the public's point of view, these captures appear to be serious assaults by the legal system on corruption and criminality in the elites. In reality they are almost accidental events. For example, the recent "assaults" on insider trading, involving such people as Michael Milken in the United States and Ernest Saunders, former chairman of the scandal-ridden British company, Guinness, merely remind businessmen that that is how all intelligent trading is done. This is an extension of the obstacle-course phenomenon in which, for example, new taxation regulations immediately cause an explosion in creative accounting until a way around is discovered. The American Justice Department recently finished a three-year investigation of General Dynamics Corporation in search of evidence that the company had defrauded the government during the building of nuclear attack submarines. They succeeded in finding evidence that the company may have falsified information about submarine delivery schedules and cost overruns, but the Department lacked an identifiable party to charge. Since the Navy had acquiesced in General Dynamics activities, it would have had to be included in the charge. The Department of Justice was reluctant to charge the American Navy. This was the second incident over which the Department had considered charging General Dynamics. In 1986, while the investigation was going on, the company received eight billion dollars in further defence contracts. [17] The possibility of intentional massive fraud, by a key defence contractor with the acquiescence of the American Navy, is of national importance and constitutes a major challenge to the maintenance of public justice. But these, sorts of events, or rather nonevents, are considered so normal that they cause not a ripple in the sea of public debate. The General Dynamics case didn't even get onto the important pages of the newspapers, nor was it dealt with by the frontline journalists of national affairs. What other explanation can there be for such public indifference than that citizens no longer believe their legal system can work? And what the citizen will put up with rarely remains an urgent matter for the politicians and the press. On the rare occasions when criminals belonging to the elites are brought to court, the circumstances always suggest that somehow a profound error has been made and that the accused, although perhaps guilty, really ought not to be there. In 1986 in the Plaza- thenee Hotel m Paris, a rich American businessman fired five shots at the Vice President of the Franco-Arab Chamber of Commerce, seriously wounding him. Their argument was over a three-million-dollar commission owed to the American, Taj Jamil Pasha, for a turnkey factory contract in Germany. Jamil was released on bail of 800,000 francs ($160,000). He returned to France for the trial three years later. The judge treated him with great respect, referred to his career at the very heart of big business and freed him on payment of a fine of 42,000 francs ($8,000). He can return to France whenever he wishes. The preceding case in the same courtroom involved a young Moroccan accused of trying to hold up a hotel with a pellet gun. He asked for bail. It was his first encounter with the law and he had already been held without bail for nine months. His request was refused and he was taken back to prison. The scene was not very different from that in London in 1988 when the well-known City banker, Roger Seelig, arrived in court to deny the twelve charges brought against him by the Metropolitan Police Fraud Squad in connection with the Guinness case. He was freed on bail of £500,000 paid by two successful businessmen, Sir Terence Conran and Paul Hamlyn. The general feeling in the business community about the charges arising out of the Guinness affair was that, whatever had happened, it had all been good business. The charges were therefore unfair. Seelig was preceded in court by a man accused of eating a £3.95 pizza with the intention of not paying. The accused was sentenced on the spot to £50 or seven days in jail. Having been short £3.95, he was unlikely to have 50. Seelig went on to do something quite unusual. He conducted his own defence. By early 1992, some four years later, the legal process had worn him down. The judge discharged 'the jury because of serious concern over Seelig's mental and emotional health, and he found himself free without any clear legal statement being made on his case. [18] It could be argued that the poor have always gone to prison and the rich gone free. In the Jamil case the court reporter of Le Monde was reduced to quoting La Fontaine. "According to whether you are powerful or miserable ..." [19] Equally, kings or law courts have traditionally reached out from time to time to punish a few of their elite who have become too big for their boots. Louis XIV made Fouquet, his Superintendent of Finance, into an example. Today's courts have chosen Boesky, Saunders and a few others. There is no question of justice being applied to all who may have transgressed. The courts can't handle the Row of petty criminals and murders. What would they do with half the business leadership of the eighteen developed countries? This is not to suggest that the social disparities in Western society are now as great as they were in the seventeenth century. Or that justice is now as violent as it once was. Sentences were far more Widespread and violent than ours but, on those occasions when aristocrats and burghers did come to trial, justice was often as violent for them as it was for peasants. The question here is whether the institutions of reason have improved the equality of justice. It could probably be argued, given the decline in the incidence of treason, religious conflicts and political divisions, that the ratio of convicts from the elites to those from the poorer classes is now lower than it was under the absolute monarchs. Moreover, there have been profound changes in the nature of major crime over the last half century. It is a truism that the Italian mafia has a major role in Italian banking and business and in the largest political party, the Christian Democrats; that the offshore banking havens, such as Bermuda, the Turks and Caicos, the Bahamas and Hong Kong, which are used by most major multinationals to reduce their tax bills, are also used by organized crime to launder their income. Most major international banks have branches in these havens. That is merely a fact. It is a truism that American banks have been penetrated by organized crime, along with whole industrial sectors, particularly the entertainment industry -- Hollywood and film distribution in particular. That is one of the explanations for the exorbitant costs involved in making American films. The charges of criminal activities against the Bank of Credit and Commerce International (BCCI) in 1991 should be seen as an exceptional occurrence brought on by the uncontrolled and extreme activities of the bank. The possibility of fifteen billion dollars in concealed losses and widespread involvement with secret service agencies was bound to attract attention eventually. The BCCI is, however, not an exception in its contempt for national laws. Its carelessness will provide a rare opportunity to examine relatively common banking procedures. The drug trade, once the family business of a few Sicilians, has now taken on gigantic multinational proportions, involving Chinese and Latin American organizations as well as the Italian. Drugs rate today as one of the largest international currency earners. All this escapes our system of justice. The authorities are reduced to humiliating seizures of a few kilos here, a few kilos there. Occasionally, there is a "big" haul, which usually consists of a few hundred kilos -- that is to say, of nothing. No more than 10 percent of the estimated annual drug trade has ever been seized. And when a theoretically important criminal figure is arrested, it is with the greatest difficulty that the government gets a conviction or a long sentence. The 25,000-man American expedition to Panama, resulting in four hundred deaths and hundreds of millions of dollars worth of economic damage, was mounted in the name of justice to shut down a major cocaine network by overthrowing General Manuel Noriega. He was overthrown, a friendly government was installed, and the drug business went on undisturbed. As for Noriega, he and his lawyers spent the subsequent years running circles around, or rather through, American law. The end result was a conviction, hut the process of appeal will drag it all on for several more years. Drugs aside, our authorities have failed to understand how money moves and agreements are made. Our legal codes search for proof of misdemeanors in the forms of contracts and the physical exchange of goods for currency. Organized crime operates without contracts. Without paper. Without borders. Multinationals use contracts, but these may be in any jurisdiction, including offshore havens. Our legal codes and courts are virtually irrelevant when it comes to organized crime. But they are equally irrelevant when it comes to regulating multinational corporations. The point is not that there is a moral equivalence between drug cartels and multinationals, but that our laws are meaningless when it comes to international operations, whether criminal or corporate. When the scandal surrounding BCCI's operations exploded on July 5, 1991, one of the clients named, among the drug lords, dictators, terrorists and gun runners, was the CIA. Almost immediately, Richard Kerr, the Deputy Director of the CIA, confirmed that the Agency had transferred substantial amounts of money through the BCCI, that the bank had been "involved in illegal activities such as money-laundering, narcotics and terrorism," but that the CIA had used the bank "not in any illegal way." [20] This raised two questions. What does the CIA understand "legal" to mean? And, more to the point, given that this statement may well be accurate, what do the functioning elites of the West understand by legal activity, as opposed to legal theory? Kerr made his statement while speaking to a school civics forum. The difficulties into which our legal systems seem to be slipping have provoked renewed debate over the nature of law. Curiously enough, most of our experts -- both liberal and Right wing -- have fallen back on the argument that law is rooted in contract; the contract of the individual with society and, on a more banal level, the endless contracts which make society function. Many of them argue, as does the American John Rawls, that the principles of justice are not evident in our common sense. [21] He therefore seeks an agreed social contract. This approach might make sense if there was some hope that these contracts, high and low, could be enforced and in a manner which reflected their social intent. If not, then in place of a common sense understanding of law and of social standards, all we have is a morass of meaningless technicalities open to exploitation by experts. There are few areas which remain reasonably enforceable. Divorce and murder perhaps retain the greatest clarity. But once we leave the specific, we discover that the whole system, turns -- in spite of our continuing eighteenth-century obsession with absolute justice -- on the assumption that the law will work because it is in some way an expression of the citizenry and the citizen therefore believes in it. The reality is, however, that the creator is increasingly the expert. And the citizens' roles as legislator and jurist have faded, so they no longer feel directly involved. When contemporary legal wisdom speaks of law as contract, one is tempted to reply that the power of money -- legal and illegal -- thinks that contracts are a joke; both the contracts of the individual with society and those of the legal codes. They are playthings to be manipulated by professionals such as lawyers, who are trained to do so. These people use -- or misuse -- common sense and make the governments of the world look like children. Besides, at the heart of justice must be the citizens' belief in the laws they obey and their collaboration with the authorities. The actual statutes do not exist because everyone would act in a criminal manner without them. They are there to layout general social standards and, above all, to deal with a small minority who have always rejected responsible behaviour. There is an assumption in any social contract that the constituted elites are protectors -- for better or worse -- of that social agreement. The idea that a civilization could function with its elites as the principal abusers of the contract is impossible. And yet that is precisely what we have. In many ways, with its ineffectual complexity, law has become like court etiquette of the late eighteenth century. Each man goes through the motions of acquiescence. Then those with power of any sort go away and do something quite different. And the judges preside over these formalities, like rational princes who have neither the paternalistic authority of an absolute monarch nor the populist authority of an elected leader to ensure that the social contract is respected. Heroes The sudden appearance of the Hero at the end of the eighteenth century came as a shock to a civilization in full and relatively optimistic mutation. Bonaparte seemed to materialize out of nowhere. Neither philosophers nor those in authority knew what to make of him. They didn't understand how he could be an invention of the rational revolution. And yet they could see him being admired and eventually worshipped as the natural son of reason: the liberator of peoples; the lawgiver; the administrative reformer; the patron of sciences; the modest ruler, always in simple uniforms, who made no dynastic claims for preferment and sought to create a meritocracy. In the future society they had imagined, however, none of these qualities fitted naturally together with military coups, dictatorship maintained by violence, permanent censorship of free speech and therefore of writing and thinking, the emasculation and eventually the destruction of responsible government, the glorification of an individual, military adventurism, and the institutionalization of profiteering for those in power. Somehow Napoleon had effortlessly introduced both of the above lists. Perhaps it wasn't surprising that this new Hero escaped understanding. In fact, the implications of the Heroic phenomenon still have not fully sunk into the consciousness of Western society. We simply accept that our expert elites prefer dealing with judges and courts rather than politicians and parliaments. The people's representatives themselves have been so discouraged by their inability to keep up with the great search for absolute answers and the rush to efficiency and modernity that they have gradually given over many of their responsibilities -- that is, the power of the people -- to the various administrative elites and to the judges in particular. This loss of practical democratic power has pushed the politicians to bolster their position by concentrating on personal appeal. That is to say, they attempt to lead through personality, a phenomenon usually known as "personality politics." These phrases have a vaguely amusing ring about them. They are reassuring. They imply that nothing more is at stake than a bit of ego from inoffensive politicians. This is so misleading as to be false. Personality is a pleasant way of describing the Napoleonic method of managing the public and from his reign onwards, it developed into the principal public tool of the new Heroic dictators. What is it then, precisely, that contemporary politicians in democratic societies are attempting to create by using this method? Not personalities. They are attempting to turn themselves into freestanding public objects which require no supporting walls or cables such as party, policy, beliefs or representative responsibilities. They wish to transform themselves into this freestanding monolith so that the public will come to them in admiration, without intermediaries or conditions. Not admiration of anything in particular, such as policy or action. Just a warm, imprecise admiration tied to personal characteristics -- being tough, for example, or loving or caring or familiar or awe-inspiring. The politician attempts to create a sense of well-being or dependence in the citizenry. In short, they wish to become Heroes. Not real Heroes, who claw their way to the top in the tradition of reason's first monster, Napoleon. They will settle for an imitation Heroship, in which they are worshipped for their appearance. Modern politicians are to Napoleon what Louis XVI was to Louis XIV. The sight of a Quayle or a Mulroney dressed up for the grand role does add comic relief to public life." And yet," as Naphta pointed out in Thomas Mann's The Magic Mountain, "the insipid is not synonymous with the harmless." [22] The popular success of such consciously constructed personalities may have something to do with the remarkable self-discipline they need to make. themselves over in the heroic mode, Self-discipline has not been seen as a great virtue by citizens of the West over the last few decades. In the 1950s and 1960s, it was popularly assumed to be a preference of the Right, and this misapprehension remains in the political debate. But nothing could be less disciplined than the New Right, with its romantic mythologizing of freedom, equality and individualism in order to obscure such practical policies as the legalization of dishonest speculation through financial deregulation. The New Right is even more undisciplined than the liberal middle classes, which have redefined personal freedom as the privilege not to give of themselves when it, comes to protecting or advancing the public good. Throughout the West they have gradually withdrawn from public life, claiming that politics is too damaging to their private lives. These lives tend now to be devoted to careerism, travel, holidays, sport, exercise and the caressing of a private state of mind which might be described as an obsession with their personal well-being. For both the New Right and the middle-class liberals, individualism has come to mean self-indulgence. Such a childlike approach to the role of the citizen has allowed them to invert logic in a remarkable way. The public servant -- police officer, soldier, tax collector, health authority -- who is paid by the citizen, now becomes the enemy of the citizen. This transformation is, in part, the result of individuals feeling that they have lost control of the public mechanism. But what is self-discipline in public life if not working to ensure that one's beliefs have some effect? The tendency among Western elites is rather to evade paying taxes wherever legally possible and to pay the remainder resentfully, taking government services for granted, while grumbling about them and looking upon public servants and public services as money and time wasters. Thus our elites sink into precisely that childish, irresponsible mold which a technocratic society assumes is the real character of every citizen in a democracy. Should we be surprised, then, that the dream of the Hero still roams so freely through the Western imagination? The Hero incarnates self-discipline. Like the suffering Christ, he is disciplined on behalf of the populace. So long as he is there to protect them, the citizenry may continue to be childish. The Hero has the mythological power to assume responsibility for our rational structures, while giving flight through his own personality to all our romantic fantasies. The rational idea that society is perfectible can also give him the right to use violence, This chastising, punishing Hero first appeared during the French Revolution with the Jacobins under the leadership of Robespierre and Saint-Just. The immediate and effortless marriage which they accomplished between those avenging powers normally associated with the Old Testament God and the new high-rational expectations imposed on each citizen should have given an early warning of the dangers inherent in Heroic leadership. Instead the physical elimination of impure citizens has become a recurring theme. This sort of extremism had once been proper to the defence of religious doctrines. In the twentieth century, we have seen Heroic leadership on the Right and the Left justify the taking of lives on the basis of everything from racial purity to economic and social methodology. Only Heroes are strong enough to establish a virtuous society through bloodletting. Whether paternalistic or avenging, the Heroic argument is that the public stage remains chronically empty. Therefore only extraordinary leadership can save the day. This is the standard justification for a coup d'etat "in the public interest." Perhaps the earliest example of the rational coup was Oliver Cromwell's dismissal of the Rump Parliament in 1653 with the aid of his soldiers and a populist slogan -- "You have sat too long here for any good you have been doing. Depart, I say, and let us have done with you. In the name of God, go." He, the virtuous leader, claimed to speak for the people better than the people's representatives. His actions brought about a political, economic and social revolution. However, because they were encased in strong Puritan themes and because the British monarchy was subsequently restored with most of its superficial trappings, the historic image of these events has been confused. It was left to Bonaparte, with his military investiture of the elected assembly on 18 Brumaire, to crystalize the idea of the Hero's virtuous obligation to carry out a public-interest coup against the people's representatives:
The modern false Hero tends not to lead troops into elected assemblies. However, he has retained all of the Hero's themes: the incompetence of the assembly, the chronically empty public stage, the need for extraordinary and virtuous leadership. Virtue is regularly redefined to reflect fashion. Sometimes it refers to honesty, sometimes to personal virtue, sometimes to devotion to the people's welfare. Over the last twenty years, it has tended to refer to the virtue of personal enrichment. Politicians know that if they can only get up onto the public stage and stay on their feet, they will be able to give the impression that they are filling the stage by the very presence of their personality. Of course they will not be filling it and so the Heroic mythology of emptiness will stay in place, thus making their presence seem even more essential. This conundrum is to the twentieth century what the indivisibility of the Holy Trinity was to the Middle Ages or the nature of predestination to the Reformation. As always, the successful installation of an unsolvable paradox at the heart of public affairs means that those who hold power can find justification for almost any sort of action. The very survival, in the heart of modern false Heroes, of the themes established by Cromwell and Bonaparte means that the social forces which originally produced this phenomenon are not dead. Just as one Hero once drew forth another and the emergence of Heroes prepared the way for false Heroes in their image, so the disappointment provoked by these superficial imitations may in turn encourage the emergence of another real one. The popular mythologies of television, film, videos, novels, comics and advertising are now given over to unnamed strangers who ride into town or to little guys who become champions against all odds or to wise visitors from other civilizations or to solitary soldiers who defeat armies. Ronald Reagan struck gold with the repeated invocation of his own line from a movie about Notre Dame football coach Knute Rockne and his dying star player, George Gripp, Hero of the turf, whose last words to his teammates were that they should go out and score." Win one for the Gipper!" caught the essence of our wistful obsession or belief that we are, in Leon Bloy's words, always waiting for HE who will come. That the language is insultingly hokey only makes the phenomenon worse. The obviously ridiculous has somehow become palatable. Part of our difficulty in maintaining a sense of the dangers implicit in Heroes, whether true or false, comes from the separation of the heroic from the Hero. Rarely has there been such a complete divorce of a word from its meaning. Born as it is of courage, heroism turns on self-sacrifice and humility. It is a sacrifice which comes with no guarantee that the gesture will help anyone. And as the military example shows, only rarely does heroism bring victory. The hero's survival is an accident, because the essence of the heroic act is submission to unlimited risk. In other words the heroic act is perfectly irrational. The rational Hero, on the other hand, is ego unchained; god on earth; the golden calf; whether a general, a tennis player or a politician. He is the colossus whose shade eases the uncertainty of all those who gather below. He is the emanation of the dreams of those who crowd together at his feet. He is their unearned and unattainable expectation. The Hero is thus the great destroyer of individualism. In this era, which we claim belongs to the individual, we dreamily watch and admire bevies of Heroes in all domains in a way no civilization has ever done. Settembrini, in The Magic Mountain, is perhaps the greatest evocation of the man of reason. He considers himself an individualist. But, as the questioning voice of the ordinary man in the novel points out, "to be that, one had to recognize the difference between morality and blessedness," which Settembrini certainly doesn't. [24] It was their inability to recognize that difference which caused the disciples of reason, while in the very process of creating the new moral individual, inadvertently also to create a new version of the "blessed one" they thought they had just finished striking down. In effect, they had combined the mythological powers of the knight, the monarch and the deity to produce a new earthly divinity. *** For two centuries now we have been living with the rational Hero. Born fully formed in the person of Napoleon, he sprang out of the confusion which swept Europe at the end of the eighteenth century. Napoleon was finally dethroned in 1815 and died six years later in exile. Two decades after that first burial in Saint Helena, organized mythology caught up with the phenomenon. The German philosopher Hegel had already written of "world- historical figures" who break the established mold and change history. But it was the Scot Thomas Carlyle who laid out in 1841, the year of the triumphant return of Napoleon's body to Paris, a complete concept of the modern saviour in his book On Heroes, Hero Worship and the Heroic in History. His approach was fawning, indeed worshipful. And with phrases such as the "the strong just man," he successfully inserted this new invention of rational dictatorship into the age-old mythological structure of heroic leadership. Suddenly the likes of Napoleon were being represented as natural descendants of the earlier hunter, warrior, and martyr heroes, who had played a practical and often essential role in their simpler, more direct societies, It also followed that the new rational Hero was a necessary type of leader. Generations of historians have quibbled over the details of what is the properly heroic role for modern leaders; but they have left in place the assumption that modern Heroes are part of a single evolution through history. As a result, for the last hundred and fifty years, every revolutionary, general and beer-hall conspirator has been able to invoke antecedents running from Julius Caesar and various barbarian tribal leaders -- real and imaginary, such as Vercingetorix, Siguror and Siegfried -- to chivalrous knights, Joan of Arc and frontier Indian fighters. Seven years after Carlyle's malevolent contribution, the first major false Hero appeared. He was Napoleon's nephew. A physically awkward weakling and an incompetent conspirator, who tended to panic under stress, he had neither talent nor experience on the battlefield. He managed instead to wrap himself in his uncle's Caesarean aura and to pass himself off as a dashing and romantic leader during the presidential election of 1848. His principle contribution to the Heroic profile was a genius for public relations. Thus he replaced his uncle's practical skills with the illusion of those skills. It could be said that he invented the idea of the Hero as actor. In 1851, he used his power as President to carry out a coup d'etat and a year later was Emperor, all this again in imitation of his uncle. Napoleon III subsequently made a fool of himself on the battlefields of Italy, where he abruptly abandoned his Italian allies because the sight of blood had upset him. In 1870 he was decisively defeated by the Prussian army and crept away to exile in England. Nevertheless, the manner in which he had initially taken power, the subsequent eighteen years of highly visible grandeur and his squashing of practical democracy with massive programs of administrative reform and public works all combined to create the model for future false Heroes. Napoleon III had been defeated by the genius of the Prussian Chancellor, Bismarck, and by a relatively new Prussian General Staff. Eighteen years later these servants found themselves serving a new Emperor, Wilhelm II, who was bombastic, of limited intelligence and filled with self-confidence. He was given to dramatic gestures, dressing up and stridency. His misfortune was that his royal powers were severely constrained by a reasonably buoyant democratic structure and impressive social institutions. He dreamed of stripping all that away to return to the absolute power of his ancestor Frederick the Great. However, Wilhelm didn't resemble Frederick, who had been an austere, withdrawn and almost monklike individual, endowed with military genius and boundless intellectual ambitions. Wilhelm's actual role model was the modern Hero, as defined by Napoleon and imitated by Napoleon III. In their style, he solved his political problems by carrying out what amounted to a coup d'etat from within. In 1890 he fired Bismarck, installed servile chancellors in his place and gradually destroyed all limits on his own personal power. He then reigned as he wished for a further twenty-eight years. Curiously enough, he was bolstered in his approach by Max Weber, the leading German thinker of the day, who opposed the Kaiser's methods but wrote continually about the revolutionary role played in history by charismatic Heroes. Only the disastrous reality of World War I was able to cut through the illusion of Wilhelm's leadership. In the meantime other, lesser sorts of false Heroes had been popping up throughout the West. Comic-opera conquerors like General Boulanger. Mystical generals like Kitchener, whose aura disguised limited talents. A slow and therefore barbarous general like Ulysses Grant was able to gather the Caesarean mantle convincingly enough around himself to win the American presidency. Equally incompetent staff officers, such as Foch and Haig, later covered their bureaucratic methods with dashing attitudes, thus transporting the false Hero into the realm of absolute internal contradiction. It was, however, only in the 1920s and 1930s, 115 years after Napoleon, that two false Heroes were able to perfect the imitation of the real. Of the two, Hitler was the more astonishing phenomenon. What our civilization has retained from that experience is not what it pretends to have retained. On the surface we remember Hitler as a monster and tell ourselves that men like him must never again come to power. In reality, however, we have noted that he was highly successful. A small, ugly, illegitimate, lower-class, failed painter rose to a glory not seen since Napoleon Bonaparte. And yet Hitler did not rise to power by defeating Germany's enemies. He wasn't even a particularly skilled conspirator. Instead, like Napoleon III, he combined a genius for public relations with the phenomena of secrecy and police power, which had been slowly developing since Machiavelli, Bacon, Loyola and Richelieu. Hitler took this science of obscure manipulation to new heights of professionalism, while disguising its shabbiness behind his public relations screen of Heroic glory and purity. Here, truly, was the little guy who became a champion against all odds. He was the ultimate illusion. Here -- if you put aside the specific events of his career, his racism, his violence, his mental instability -- is the model which has been retained by the image makers of today and indeed by rational civilization. For example, if one compares the public style of contemporary political leaders with that of democratic politicians before World War II, they have very little in common. The old politics tended to be dowdy. It tended towards groups of men on podiums behind long tables engaging in lengthy political evenings. There was a reassuring middle- or lower-middle-class air about most of democracy. Even the rising forces of socialism adopted those conventions and. concentrated on issues as opposed to leaders. At its best the style was slow and dreary. At its worst there was an atmosphere of smoky rooms, corruption and ward-heeling. The contemporary political style only begins to make sense if it is compared to the Hitlerian method. We have become accustomed to the high, spartan podiums from which a single, dramatically lit leader speaks while surrounded by a darkness in which large crowds have been assembled. Modern political conventions or rallies are primarily derived from those pf Nuremberg. We now accept as normal the spectacular and officially joyous celebrations, involving massed flags, music and projected images of the leader. In day-to- day life that individual is now routinely and alternately presented as a withdrawn, august figure or, at the other extreme, a man of the people engaged in direct populist encounters. Between these two images lies the reality of democratic politics. And yet modern leaders carefully avoid being seen in protracted serious conversations or negotiations with lower- level public figures. Increasingly they avoid those encounters even behind the scenes. Lower-level officials are sent to represent the leader, who is held back for essential or scripted sessions. At public meetings forty years ago, leaders tended to sit out onstage along with the other speakers, waiting their turn. Now they are kept out of sight and marched in Heroically at the last and most dramatic moment. In their other role, as direct representatives of the people, they are shot, as if from a mystical cannon, directly into shopping malls or fish factories or barbecues where the hands of the people can be shaken. This high-low imagery is tied to the conversion of the leader into some sort of sexual image. Various methods are used. For example, there is the prerational religious and monarchical equation of power with potency, which Napoleon used so effectively. There is also the suggestion -- perfected by Hitler -- of restraint or self-imposed purity to illustrate a personal sacrifice in the service of the public. Some or all of these elements can be found in the political campaigns and governing methods of most contemporary politicians. It cannot be said that these are merely superficial deformities. The process of election and the government's ongoing relationship with the population are both central to the democratic system. What then, are we to make of the modern Heroes who sincerely attempt to serve the public good? Perhaps the simple answer is that they are not modern Heroes but belong rather to a prerational tradition. This does not mean that their actions will be understood in a prerational manner. Instead they will find themselves in constant conflict with society's expectations of them. For example, even fanatically honest men have found it almost impossible to resist the deifying needs of our times. Garibaldi was probably the most famous man of the mid-nineteenth century. Brilliant guerrilla fighter, champion of just causes around the world, the man who made united Italy a military and emotional reality, advocate of reforms which have only recently become realistic possibilities, he found himself constantly at the centre of change. He also felt constantly obliged to flee public affairs and take refuge in isolated places in order to resist the personal implications of his Heroic activities. [25] The son of a fisherman in Nice, he began a confused naval career by serving various powers on the Mediterranean. This culminated with his participation in a republican mutiny against the King of Piedmont. Garibaldi was twenty-seven. His flight led to South America where, for twelve years, he joined and eventually led rebellions against Argentinian and Brazilian dictators. By 1848 he was back in Italy and began in earnest his struggle for Italian unity. He was neither a nationalist nor a patriot as we now understand those terms. He did not believe in the .absolute virtue of nation-states or racial groups. He saw them only as interim tools for achieving social justice. By justice, Garibaldi meant such things as worker rights, racial equality, religious freedom, female emancipation and the abolition of capital punishment. This meant that although he was struggling on the same side as King Victor Emmanuel of Piedmont and his prime minister, Count Camillo Cavour, Garibaldi didn't hesitate to attack them whenever they left the path of justice. His was above all a populist voice, raised to defend the interests of all people. On the other hand, each time his military genius gave him power, Garibaldi promptly handed it over to constituted authorities. The most famous example was his 1860 lightning conquest, at the head of one thousand red-shirted volunteers, of the large Bourbon kingdom that stretched from Naples to Sicily. No sooner had he made himself Dictator of the Two Sicilies than he handed the whole territory over to Piedmont in order to force the creation of a united Italy. He then withdrew from the public fray to his simple house, out on the island of Caprera, between Corsica and Sardinia, from which he emerged periodically over the next twenty-two years to fight for various reforms. Garibaldi, whatever his eccentricities and impossibly elevated standards for public action, never took advantage of his military successes and the public's adulation in order to advance his personal interests or to seize power. It is sometimes argued that he was outmanoeuvred by venal politicians. But that is a point of view which primarily reflects the thinking of our civilization. We expect a Hero, however noble his cause, to seek power; in truth, we require him to want power. The reality is that, although Garibaldi raged against the politicians' manipulations, he refused to play their games and left them free room to manoeuvre. His refusals were not feints designed to strengthen his future position. Given the obsessions of our times, they simply increased his aura as a Hero approaching divinity. And so Italy is filled with hundreds of thousands of relics left by the great man in his passage from town to town. In the municipal museum of Cremona, for example, like pieces of the Cross, a few objects under glass are tied together with a red ribbon. These include a splinter from a door in his house on Caprera, along with a piece of granite and dried flowers from his tomb. Beside this is another glass case, containing what appears to be the dried baby finger of a martyred saint. It is a cigar butt which the Hero had smoked in Cremona. The object is carefully labelled by hand:
These relics lie about Italy like a promise that the Hero will return to earth. Thus, while Garibaldi resisted all the worst temptations of rational society, his example couldn't help but create the hope that another Hero would follow who would be the best of men. A leader who could carry the dreams of the people but also make them work. In other words, someone who could fill the mythological role of Carlyle's "strong, just man." That Hero appeared forty years later in the person of Mussolini, who was Garibaldi's exact opposite. The expectation of rational society is that the Hero will assume power. Sooner or later someone with his own agenda comes along and does just that. At the heart of the problem is our idea of the individual who is "the best." It is a concept which damages our general understanding of what civilization can accomplish. Attempts to do better or to widen our knowledge in the arts or science Or elsewhere are often described as the pursuit of excellence. This is a practical, indeed a humanist approach towards civilization. The search for the best, on the other hand, is an abstract and arbitrary business, which has its origins in warrior societies and idol worship. The man who is the best in whatever domain, is in effect, Hero for a day. A society which mistakes the worship of the best for the pursuit of excellence will have difficulty focusing on established precedent and established procedure. These are swept away in the emotion of the Heroic. And so, acts which are unacceptable in a democratic society -- false heroics, for example; or the manipulation of institutions, even of the elected assembly -- become mere transitory problems when a leader successfully assumes the cloak of the Hero. In the circumstances it seems to be a small price to pay. And so, before the advancing Hero and false Hero, the morality and social conventions of democratic society fade away. *** There is nothing in official Western dogma which identifies the Heroes, false Heroes and Princes, particularly the princes of law, as important factors in our civilization. Laws, constitutions, open and free elections, responsible assemblies and governments -- all these are intended to determine the rules by which we govern ourselves and are governed. The control of the leader by the citizen is not, however, primarily dependent on laws and constitutions. These are theoretical expressions of a relationship. The reality of rational structures imposes a bureaucratic or an emotive relationship. Citizens inevitably find themselves in a pyramidal relationship to the Prince. Structure and expertise guarantee the Prince superiority. The Hero, true or false, good or evil, governs thanks to an emotive trick, in which he is not chosen as an integrated, practical element in society, but is annointed as a mystical leader. The annointment may well take the form of a vote, but then Napoleon demonstrated from the very birth of the Hero that voting in an Heroic context will negate democratic common sense. There is nothing original about a civilization which celebrates and maintains a fictional self-portrait for its own reassurance. Rome maintained the fiction of a republican citizenry defended by an all-powerful Senate long after the emperors were in control. Most European countries continue to think of themselves as the product of racial and cultural unity, when they are generally patchworks of conquered tribes and defeated minority cultures. The United States thinks of itself as the prophet of egalitarianism, when it is among the least egalitarian of the Western nations. None of this is of great importance so long as the state continues to function in a reasonable manner. There is, however, a very immediate danger when a civilization is unable to recognize the nature of its leadership and to understand its origins. This invites unattainable expectations and a profound misunderstanding of the mechanisms by which orders are given and obeyed. The result is a tendency to swing erratically from manic and manipulable optimism to confused disappointment and pessimism, from adulation for those in office to contempt. In the absence of a commonly held sense of what constitutes the clear, fair and successful exercise of power, the desire for something mystical called leadership grows into a haunting and hypnotizing refrain. In the process the citizens lose their self-respect and sense of direction, thus acting in the immature manner that the Princes and Heroes expect of them.
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