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Notes from a cliff-edge

where is the libertarian left?

4/5/2021

 
479 words; 4-minute read

It’s become a commonplace that Covid has amplified features and fissures in society that we always knew existed but never quite acknowledged.
 
For instance there’s the importance of people who keep things going without us realising: shop workers, parcel deliverers, lorry drivers. If reward is a function of indispensability, we now know that these people are poorly rewarded.  (Though the UK government’s 1% pay rise for nurses shows that recognition by no means leads directly to justice).
 
Then there’s the dispute over the role of experts, and attempts by populist leaders like Donald Trump and Jair Bolsonaro to sideline them in favour of quack remedies or downright Covid denialism.
 
We always knew that wages are awarded in inverse proportion to a person’s usefulness to society and that populism is dangerous, but it took the glare of Covid to make these things unavoidably obvious.
 
But there’s another fissure that was barely visible pre-Covid yet which has come to define much of the reaction to the pandemic: the gulf between libertarians and authoritarians. Unfortunately, and with potentially disastrous post-Covid consequences, the libertarian position has been entirely dominated by the right, leaving the left defenceless as the capitalist state arrogates more and more power to itself under cover of Covid darkness.
 
Over the past twelve months it’s been something of a surprise to see how readily people on the political left have lined up behind disciplinary policies and practices that in normal times they’d have fought tooth and nail. Whether it’s increased police powers, enhanced surveillance, Covid passports or the criminalising of information, leftists have either waved through repressive measures or raised the stakes by suggesting how helpful even more repression would be. Voices on the left calling out these measures have been few and far between.
 
Most disturbing of all is the shock horror these same people display when a bill comes before parliament increasing police powers and curbing the right to protest.  What, one wonders, did they expect?  Politically literate leftists shouldn’t have to read Carl Schmitt or Giorgio Agamben on states of exception to know that regimes will always take advantage of emergency to intensify their authority.
 
It’s taken Covid to bring both the outright and the naive disciplinarian left out of the woodwork, and as the Covid crisis draws to a close it may be too late to put the authoritarian genie back in the bottle.  It wouldn't be too bad if ceding a libertarian approach to Covid to the right had just left it in the hands of crazed denialists prepared to go to the wall for the right not to wear a mask.  But actually it's made possible
 the government's truly scary Police, Crime, Sentencing and Courts Bill 2021, waved through in the wake of the softening up offered by Covid 'necessities'.
 
In sum there is huge gap where the left should have been designing, advocating and enacting a progressive libertarian approach to Covid, and the authoritarian capitalist state is gleefully sailing straight into it.

Deliberative democracy and criminal justice

4/3/2021

 
649 words; 5-minute read

There are all sorts of types of democracy and one is called ‘deliberative democracy’. It’s called that because it puts deliberation rather than counting votes at its heart.  In deliberative democracy it’s the process rather than the outcome that counts. And the process is designed to reflect the belief that the best decisions are ones arrived at by discussion between free and equal people.  Anything else is just a variation on coercion.
 
Here are some of the basic rules for good deliberation:
 
  • Participants should treat each other with mutual respect and equal concern
  • They should listen to one another
  • They should speak truthfully
  • There should be no use of force, strategising or deceit, and no sign of partisanship, self-interest or ideology
 
By the same token, decisions reached by strategising and deceit, and characterised by poor listening and a lack of respect and concern, will be bad ones.
 
Deliberative democracy might be accused of being massively impractical, or at the very least difficult to put into practice. But this doesn’t undermine its attractiveness as a regulative ideal, or something we should strive to approximate to when it comes to good decision-making. We might reasonably expect every institution charged with making good decisions to get as close to these ideals as possible.
 
But there’s one arena of decision-making - one which has the profoundest consequences for roughly 1.5 million UK citizens every year - where the principles of decision-making are the exact opposite of the ones above.
 
That arena is the English criminal justice system.
 
From arrest to sentence, the criminal justice system is defined by self-interest, strategising, deceit, lack of respect, dissembling, and a systematic failure to listen.
 
Self-interest is on display by everyone throughout. Take the police force, for instance. Its job is to secure convictions (definitely not justice), and police officers would be crazy to do anything that undermined that objective (what would we think of a police force that never secured convictions?).  Police strategising is common (if they can interview without a lawyer present they’ll do so), as is deceit (evidence that might be useful to the defence is regularly withheld).
 
None of this means that police officers are behaving inappropriately. Far from it. They’re doing no more than what a non-deliberative approach to justice enjoins them to do: maximising the advantages they have to ensure they get as many convictions as possible.
 
Likewise, strategising is not only present in the courtroom, it is essential to how it works. Prosecution and defence plan and plot their way through to their desired outcome with little regard for what should actually count - truth and justice (understood as getting what one deserves).
 
Finally, the consensual approach that characterises deliberative decision-making is completely absent in the criminal justice system, where the confrontational alternative is personified in the battles between prosecution and defence so beloved by TV dramas.  And all of this in a mise-en-scène designed to emphasise inequality and hierarchy, and induce intimidation - the courtroom itself (raised platform for the judge, bowing and scraping, wigs and gowns).
 
The ‘Secret Barrister’, famed for supposedly lifting the lid on the failures of the criminal justice system, gets nowhere near the heart of the problem. Her or his claim that it’s all about a funding shortfall is a distraction from the real issue. Throwing more money at an abominable system would just make it better at being bad.
 
All in all, if someone was invited to come up with a process designed to produce unreliable, even obtuse, decisions, they’d be hard-pressed to come up with anything better than the English criminal justice system.  We need to start again from the first principles of free and equal deliberation if we’re to have a criminal justice system worthy of the name.

    Andrew Dobson

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