Archive for December, 2012

Kropotkin on Law

Kropotkin, Prince Peter (1842-1921)
Kropotkin was a Russian geographer and revolutionary. His work included the following comments:
* Prisons do not moralise their inmates; they do not deter them from crime.
• Our penal institutions have been nothing but a compromise between the old ideas of revenge, of punishment of the “bad will” and “sin”, and the modern ideas of “deterring from crime”, both softened to a very slight extent by some notions of philanthropy.
• Most people who are kept now in jails, or put to death, are merely people in need of the most careful fraternal treatment.
• The higher instincts of human nature have been checked in their growth by the abominable conditions under which thousands and thousands of children grow up, and millions of adults are living, in what we call our centres of civilisation.
• If we analyse ourselves, we should see that all of us have had some feelings and thoughts such as constitute the motive of all acts considered as criminal. We have repudiated them at once; but if they had had the opportunity of recurring again and again; if they were nurtured by circumstances, or by a want of exercise of the best passions – love, compassion and all those which result from living in the joys and sufferings of those who surround us; then these passing influences, so brief that we hardly noticed them, would have degenerated into some morbid element in our character.
• That is what we ought to teach our children from the earliest childhood, while now we imbue them from their tenderest years with ideas of justice identified with revenge, of judges and tribunals. And if we did this, instead of doing as we do now, we should no longer have the shame of avowing that we hire assassins to execute our sentences, and pay warders for performing a function for which no educated man would like to prepare his own children.
• Humanity has seldom ventured to treat its prisoners like human beings; but each time it has done so it has been rewarded for its boldness.
• Prisons do not cure pathological deformities, they only reinforce them; and when a psychopath leaves a prison, after having been subjected for several years to its deteriorating influence, he is without comparison less fit for life in society than he was before.
• The shameful practice of legal assassination – of hiring for a guinea an assassin to accomplish a sentence which the judge would not have the courage to carry out himself – this shameful practice has not even the excuse of preventing murder. Nowhere has the abolition of capital punishment increased the number of murders.
• From year to year thousands of children grow up in the filth – material and moral – of our great cities, completely abandoned amidst a population demoralised by a life from hand to mouth, the incertitude of tomorrow, and a misery of which no former epoch has had even an apprehension.
• We cannot wonder that our big cities chiefly supply prisons with inmates.
• At the other end of the social scale, money is squandered in unheard-of luxury, very often with no other purpose than to satisfy a stupid vanity.
• Money-worship tends to develop an insatiable thirst for unlimited wealth, a love for sparkish luxury, a tendency towards spending money foolishly for every avowable and unavowable purpose; when there are whole quarters in our cities each house of which reminds us that man has too often remained a beast.
• Man is a result of the conditions in which he has grown up.
• Two-thirds of all breaches of law being so-called “crimes against property”, these cases will disappear, or be limited to a quite trifling amount, when property, which is now the privilege of the few, shall return to its real source – the community.
• Prison cannot be an environment that reforms the criminal. The man who is shut up in a prison is so far from being bettered by the change, that he comes out more resolutely the foe of society than when he went in.
• All legislation within the state has always been made with regard to the interests of the privileged classes. Law originated in primitive superstitions and was developed by the decrees of conquerors. Human relations were originally regulated by custom. The dominant minority used law to make customs immutable which were to their advantage. Law made its appearance under the sanction of the priest and the club of the warrior.
Kropotkin divided laws into three categories:
1.The protection of property. This is intended to appropriate the product of labour or to deal with disputes between monopolists. These laws have no object other than to protect the unjust appropriation of human labour.
2. The protection of governments. This is constitutional law which aims to maintain the administrative machine and almost entirely acts to protect the interests of the governing classes.
3.The protection of persons. This is the most important because such laws are regarded as indispensable to the maintenance of security in society. These laws developed from useful customs but they have been modified by rulers to serve their own interests.
Punishment is not appropriate for anti-social or violent persons. The severity of punishment does not reduce the amount of crime. On the basis of his own experience of Russian and French prisons Kropotkin criticised prisons for killing physical energy, destroying the individual will and encouraging society to treat released prisoners as something plague-stricken. Prisons could not be improved. The more they are reformed , the worse they become.

People without political organisation, and therefore less depraved than ourselves, have perfectly understood that the man who is called criminal is simply unfortunate. The remedy is not to flog him, to chain him up, to kill him on the scaffold or in prison, but to help him by the most brotherly care, by treatment based on equality, by the usages of life amongst honest men.

Kropotkin on the origin of the state:
Laws were made to protect private property and were enforced by a special group of soldiers. The state dates from the sixteenth century when it took over the free towns and their federations. The state resulted from a triple alliance of lords, lawyers and priests who dominated society. They were later joined by capitalists who strengthened and centralized the state.
Consider what corruption, what depravity of mind is kept up among men by the idea of obedience, the very essence of law; of chastisement; of authority having the right to punish, to judge irrespective of our conscience and the esteem of our friends; of the necessity for executioners, jailers and informers – in a word, by all the attributes of law and authority.

Law In Cuba

Cuba and human rights
The Cuban Constitution of 1976 sets out all the rights recognised by the Universal Declaration of Human Rights and includes the following:
• The obligation of the state to assure the economic and social well-being of the collective.
• Positive social and economic rights: the right to work, right to social security, free health care and free education. The right to work is balanced by a duty to work.
• Equality of rights and duties and the prohibition of discrimination.
• Individual liberties, for example freedom of speech in keeping with the objectives of a socialist society.
Capitalist democracy is seen as a democracy for a majority of exploiters and as a form of oppression of the majority.
US and UK jurisprudence puts individual autonomy and property rights above group rights and collective economic and social well-being.
Socialist legality is concerned with collective well-being based on egalitarian values. It imposes limitations of individual liberties for the collective good. Political expression is restricted where it conflicts with state policy. The Cuban Communist party is the only lawful political party.
All efforts to organise internal dissent have been linked to US efforts to destabilise the government.

Lawyers in Cuba
Evanson reports the following:
• The 1959 revolution destroyed the private practice of most Havana law firms. The practice of law was considered to be a parasitic bourgeois profession.
• In many countries, the practice of the law tends to smack of professional elitism and questionable ethics.
• The revolution resulted in a decline in the role of the courts for dispute resolution. Legal education shrank to virtual extinction.
• The Law on the Organization of the Judicial System (1973) eliminated the private practice of law.
• Legal services are provided by bufetes colectivos (collective law offices) which are the exclusive providers of legal services. Services are provided at modest rates or free for those who cannot pay. The National Organization of Collective Law Offices (ONBC) comprises 2000 lawyers supplying free or low price legal services.The bufetos colectivos reportedly provide legal services to almost one million people every year. Issues range from traditional civil, administrative, penal and labour matters to more specialized matters, for example banking and commercial cases. The ONBC has staff who obtain official documents on behalf of clients. There is a fixed tariff for each procedure. Contracts for legal services specify the price of the service and the rights and obligations of the parties.
• Cuban lawyers are expected to support socialist ideology and to work for the perfection of socialist law.Lawyers are called upon specifically to educate their clients and other citizens with respect to their legal rights.
• Legal education, room and board are free. Books are available at highly subsidised prices. In return, law graduates must work at a bufete for three years.
The Cuban population has come to expect relatively easy access to legal services in a system which has substantially diminished inequality in law and the legal process. Legal representation is no longer a privilege of class. Cuba is closer to guaranteeing access to justice than most countries.

Cuban judicial system
People’s Popular Courts were established after the revolution to deal with private disputes and petty crime. Judges were elected and sat on a part-time basis.
Revolutionary Tribunals under military control dealt with war crimes and imposed death sentences.
Under the reforms of 1973, Revolutionary Tribunals and People’s Popular Courts were abolished. Part-time lay judges now sit alongside professional judges in all cases.
Lay judges in Cuba, who sit alongside professional judges, are elected peasants, workers and housewives. The comment has been made that, in this context, justice can be seen as reflecting the popular will.

Cuban law and equality
Under the 1976 Constitution discrimination because of race, colour, sex or national origin is forbidden and is punished by law. The institutions of the state educate everyone, from the earliest possible age, in the principle of equality among human beings.
For example:
• In 1979 all criminal penalties for abortion were eliminated.
• In 1961 all private schools were abolished.
• The private renting of housing has been abolished.
• There is freedom to practise religion except Jehovah’s Witnesses because their beliefs oppose service to the state, especially military service.
• There are no religious holidays and Christmas is a work day.
• The primary aim of the family, and the aim of family law, is to contribute to the development and upbringing of children in accordance with socialist values, and to provide for the emotional needs of individuals.
• There is a legal obligation for men and women to share housework.

Tony Serra

Tony Serra
Tony Serra, described as a “ponytailed, potsmoking criminal defense attorney famous for fighting the government”, was sentenced to 10 months imprisonment in 2007 for tax evasion. Serra’s reaction was to comment that he could do ten months standing on his head. The blacks loved him the whites loved him, the Hispanics and Asians loved him. He talked law 24 hours a day and he found that people in custody were far more interesting than the bourgeois people who populated society. He would prefer to get down with inmates. They were interesting and dramatic. They had overstepped the bounds of society. Some of it was high principle, some of it was low principle.
Serra served four months in prison in 1976 for failing to file tax returns as a protest against the Vietnam War.
Serra is reported to have no savings and no health insurance. Any money he earns is used to pay for the cases which he takes on free of charge.
When he missed a plane and a key hearing in a trial, the judge was unimpressed when he blamed his absence on “bad karma”.