The state washes its hands
Perhaps no one will be as pleased as Chris Grayling to read Frederick Wilmot-Smith’s attack on him (LRB, 6 November). ‘Upset the lefties and you must be doing something right.’ But it does not follow that ‘upset Grayling and you must be doing something left.’
Left-wing lawyers defending legal aid do not always tell the whole story of how it started. The Legal Aid and Advice Act of 1949 came after the Rushcliffe Report but did not completely follow its recommendations. Rushcliffe envisaged a national network of law centres staffed by salaried lawyers. That did not happen. Instead the Law Society was given control of the scheme and doled out the money to its members in the high street. The Law Society could have used the money to set up its own salaried service but never tried to do so.
The Act did not touch criminal cases. They continued under the 1903 Poor Prisoners’ Act (updated in 1930). An attempt to introduce salaried public defenders was made in 1919 but the culture and class interest of the legal professions stood in the way of that development for another eighty years. In 1963 hourly rates replaced fixed fees. Writing in 1966 Lord Widgery confessed that the taxpayer was getting poor value from a system designed to protect vested interests: ‘The chief advantage of the public defender system is that it is cheap,’ he noted, ‘but we should also see that one of the most serious objections to the public defender is its effect on the criminal Bar. The effect should almost certainly be the shrinkage of the independent criminal Bar.’
It’s easy to understand why conservative lawyers would relish public subsidy of private enterprise, but how bizarre that welfare state lawyers should argue to the same effect.
Our adversarial system is too dependent on lawyers, too expensive and too inefficient. It creates an excessively large prison population (if that could be reduced there would be serious savings). Radical reform requires reconsideration of the purpose of criminal law and the way it works. John Langbein, in The Origins of Adversary Criminal Trial (2003), and Richard Abel in English Lawyers between Market and State (2003) showed, respectively, that the adversarial system leads inevitably to a ‘truth deficit’, and that supplier-induced demand and moral hazard render the economics of legal aid inherently unstable. Langbein closes his argument:
European criminal procedural systems became hybrids of European and English, but they retained their defining feature, the principle that criminal courts must have the duty and the authority to seek the truth. In England, by contrast, the well-meaning reforms of the 18th century that resulted in adversary criminal trial had the effect of perpetuating the central blunder of the inherited system: the failure to develop institutions and procedures … that would be responsible for and capable of seeking the truth.
Finding the truth means acquitting the innocent as much as it means convicting the guilty. David Rose’s In the Name of the Law: The Collapse of Criminal Justice (1996) shows how the German inquisitorial system establishes enviably high conviction rates. That is why it is trusted by the public. Even better, miscarriages of justice are less likely:
The alternative to the adversarial model is an ‘inquisitorial’ system in which the objective search for truth becomes an avowed public purpose not a by-product generated by chance. In the halcyon days of 1991, as Home Secretary Kenneth Baker established the Royal Commission, there was widespread speculation that a radical shift in this direction might emerge. One of the Commission’s first acts was to order research into two nearby jurisdictions which broadly follow inquisitorial principles, France and Germany. The authors of this study, published in 1992, reached several immediately striking conclusions. First they found that in neither country was it likely that miscarriages of justice such as the Guildford or Birmingham cases would occur. Second in contrast to the stratified and often vexed relationship between the different actors in the criminal process in England, on the continent the relationship was marked by a ‘high degree of confidence, and of co-operation and mutual trust’. Finally public confidence in both systems remained high in their respective countries and in the German case the conviction rate was as high as 90 per cent.
Our system cannot cope. It costs too much. Efforts to save money will reduce access to justice, they will force many practitioners out of business, abandoning their clients. It is also inefficient: a low conviction rate requires a high rate of incarceration to maintain the principle of deterrence. Too many prisoners, too many suicides in understaffed prisons. No prison education. No effective literacy programmes. No books. No aftercare. Defendants trapped in a revolving door; poverty and personal inadequacy, police station, court, prison and then back round again while professionals protest that throwing more money at the status quo will make it work better.
Grayling’s cuts are permanent, and they make a shift towards inquisitorial procedure inevitable. In his lecture ‘Reshaping Justice’, which he gave in March, Lord Chief Justice Thomas of Cwmgiedd said:
We have to keep an open mind even on radical options. For example, to some a change to a more inquisitorial procedure seems like the obvious or the only solution to the present situation we find ourselves in with the increase in litigants-in-person and the need to both secure a fair trial for all whilst doing so within limited and reducing resources that have to be distributed equitably amongst all those who need to resort to the courts. It might be said by them that to attach to it the label of ‘inquisitorial’ was doing it a disservice, as it was really little more than the active interventionism characteristic of much pre-trial procedure, case and trial management. But I think it is right to refer to it as inquisitorial, because the essence of the change would be a much greater degree of inquiry by the judge into the evidence being brought forward.
Finally, the constitutional advantages of having investigators ultimately accountable to the judiciary must be counted too. Would Plebgate have occurred if police officers had known their evidential handiwork would be compared with videotape by a juge d’instruction? Would Blair be so comfortable if he’d got the treatment Italian prosecutors gave Berlusconi? Would a judge having oversight in sensitive investigations have ever permitted undercover police officers literally to embed themselves with the suspects against whom they were seeking evidence?
Mourning the past will not stop Grayling. Cuts will occur. If justice is to be administered fairly and efficiently it will have to become more inquisitorial. Left-wing lawyers had better calculate what they can contribute to a radically reformed regime.
Given the fate of critics in David Mitchell’s books (Fergus Finch in Cloud Atlas is thrown off a high building; Richard Cheesman in The Bone Clocks is framed for drug smuggling), I’ll be interested to see what happens to Theo Tait in the next one (LRB, 4 December).
Who says what about Hungary
Nora Berend and Christopher Clark start from the assumption that there is and should be only one history of Hungary (LRB, 20 November). The problem, to which they do not allude, is that Hungarian society is deeply segmented and polarised, with each segment constructing its own version of the Hungarian past. Berend and Clark appear to espouse the version favoured by the Hungarian liberal current. That is perfectly legitimate, but it does rather ignore the pasts constructed by the other segments. The national version is the one favoured by the government, and it is entirely at odds with the ones put forward by the liberals and the socialists (they differ in some respects). To these may be added a Jewish and a Roma version, as well as a women’s history. I suspect that Jobbik too is busy creating its own variant, looking primarily at shamanism rather than Christianity. None of these is or should be canonical.
On a more specific point, Berend and Clark might have added that the monument in Szabadság tér (Freedom Square) is intended to commemorate all the victims of the 1944 German occupation, many of whom were not Jewish. On a recent visit to the square I noted that the monument was surrounded by a large number of mementos, both Jewish and non-Jewish. This indicates a degree of popular identification with the monument, but there was also a poster denouncing it as a falsification of history.
It should be acknowledged that the German occupation was a necessary condition for the Holocaust in Hungary, but it was not sufficient. Once the country was occupied, the Hungarian state machinery did, indeed, participate actively and brutally in the deportations to Auschwitz. But it would have been worth adding that in July 1944, Ferenc Koszorús intervened with the army units under his command to stop the gendarmerie from pursuing the deportation of the Jewish community in Budapest.
The Fidesz government, in October 2013, was the first in Hungary explicitly to accept responsibility for the Holocaust. As for the deplorable statement by a Jobbik MP that Jews in public positions should be listed, it was condemned by all other political parties, Fidesz included.
Berend and Clark write: ‘Half a million citizens of neighbouring countries who define themselves as ethnically Hungarian were given the vote.’ This is not correct. Anyone with forebears who were Hungarian citizens can claim citizenship and this includes, say, ethnic Serbs whose grandfathers were conscripted into the Hungarian army during the Second World War.
The EU is setting up a committee to look at the practice of fundamental rights in all 28 member states. It will be interesting to see if, as the authors imply, Hungary is at the bottom of the list. The chances are that many other EU member states will find such scrutiny more than awkward.
MEP for Hungary (Fidesz)
While everything in Nora Berend and Christopher Clark’s account of the present state of affairs in Hungary may be true, my contacts there see it in a rather different light, just as ordinary Russians are grateful to Putin for rescuing their country from the chaos which, as Hobbes maintained, is worse than almost any tyranny. We must not forget that Hungary was for some time occupied by the Turks, that its lost Calvinist province of Transylvania was better off under their rule than when ‘liberated’ by the Habsburgs (in fact an oasis of religious tolerance), that its bid for freedom was crushed by Austria in 1848, and that despite having rather reluctantly entered the 1914-18 war, it was dismembered by the Treaty of Trianon, which even ceded to Austria some of its erstwhile territory as well as assigning Transylvania to Romania, the Banat to Yugoslavia and Slovakia to the Czechs – all of them provinces with a large Hungarian minority.
In these circumstances, it was only too natural if Hungary found itself in some sympathy with recidivist Germany, which was in fact more leniently treated in the Treaty of Versailles. There followed at the end of the Second World War a period of brutal Russian occupation – confirmed after the crushing of the Hungarian revolt that, as it turned out, was the beginning of the end of the Soviet empire. The succession state when that empire broke up was not a success, foreign occupation having effectively destroyed what had once been a democracy on the 19th-century British model, leaving the country in the charge of corrupt functionaries left behind by the communists. We should surely now help the Orbán regime to develop however slowly into a modern Western state rather than expel it from the EU for finding itself in an impossible situation, and instead of pointing a finger at their political deficiencies, get the mote out of our own eyes.
One cannot defend the many egregious politicians running modern Hungary but Nora Berend and Christopher Clark’s analysis is crucially undermined by their omission of relevant facts. First, Budapest is unique among the cities of Central and Eastern Europe in that a significant number of Jews survived the war in Budapest. Historians may debate to what extent their survival was the result of Admiral Horthy’s passive resistance to some of Hitler’s policies. Second, Horthy was not simply ‘forced to abdicate’. An SS commando mission under Otto Skorzeny kidnapped his son and Wehrmacht units stormed the Buda castle.
Horthy undoubtedly had failings but under his rule feudal social arrangements and the fiction of Magyar supremacy were preserved for a population obsessed with the failings of Western peace-makers at Trianon. Compared with what followed there was a semblance of continuity. Not many Hungarians who experienced 1956 and its aftermath would agree with Berend and Clark’s astonishing assertion that the communist ‘interventions look quite restrained in retrospect’.
In the light of reading Nora Berend and Christopher Clark’s bleak portrayal of Hungary, readers might be pleasantly surprised to witness the exuberance in Vörösmarty Square when a plethora of small publishing houses set up for three days as part of Book Week in Budapest, or the free concerts across the squares of the inner city, where tens of thousands of young people gather and drink peacefully with barely a policeman in sight.
Berend and Clark are selective in the way they use history to make the case that what is happening now isn’t ‘just a phase’. They ignore the fundamental point that taking control was the only way Hitler could force Hungary to give up its Jews, and imply an upstart militaristic imperialism when Hungary was, in its view, restricting itself to reclaiming lands and citizens stripped from it after the First World War by the unjust Trianon treaty.
Rather than being a willing supporter of Hitler, Hungary repeatedly stood up to him. Poland had no better friend in 1939 when Hungary said it would rather blow up its railways than let them be used to open up a second front in the German invasion, and then went on to open its border not only to a flood of Polish refugees but also to some hundred thousand Polish troops and airmen who went on to fight the Nazis throughout the war.
That is not to deny that there was, and is, a fascist element in Hungary, as there is elsewhere, or to deny the atrocities that Berend and Clark correctly identify. But the West has consistently failed to understand Hungary and the complexities that come with its geopolitical position.
Balingup, Western Australia
Nora Berend writes: The opposition is not between liberal and nationalist constructions, but between historical research and political myths – incorrect representations of the past that create legitimacy for the present. Hitler did not take control; Horthy retained power, and hosts of government employees participated in the deportations. Koszorús was no saviour of the Jews: he was ordered to Budapest with his troops to ward off a putsch Horthy (wrongly) suspected was being organised against him, and more than 23,000 Jews were deported from the suburbs of Budapest by the Hungarian state within days of Koszorús’s ‘intervention’. Horthy professed to be an anti-Semite; his authoritarian regime reintroduced open elections in the countryside, and used political anti-Semitism and extrajudicial methods such as the murder of journalists. Jews who survived did so after Szálasi’s takeover.
The monument on Szabadság tér was originally planned as a monument to the German occupation, as the official government gazette testifies. After popular protests, it was renamed as a monument to the victims. The mementos around it are not signs of popular identification with it, but of grassroots protest against the blurring of culprits and victims. The occasional admission of responsibility is rendered meaningless by government projects that blame the Germans.
Having forebears with Hungarian citizenship is not enough to claim it today; knowledge of Hungarian must be proven. Viktor Orbán, in a speech to Hungarians in Romania, declared that it was ‘a fitting punishment’ of ‘political forces who had voted against accepting Hungarians from outside the state boundaries that it was with the votes of those outside the borders that a two-thirds majority was achieved’. Liberal democracy, he said, has failed to protect national interests. Azerbaijan, Russia and Turkey are models to emulate: ‘what we are building in Hungary,’ he declared, ‘is an illiberal state.’
Mary Somerville’s Due
Mike Jay writes that Mary Somerville’s On the Connection of the Physical Sciences (1834) ‘began as a summary translation’ of Laplace’s Mécanique Céleste (LRB, 20 November). In fact her translation was published as The Mechanism of the Heavens in 1831; and more than just a ‘summary’ of Laplace, it was regarded at the time as an important elucidation of this dense work. On the Connection of the Physical Sciences, written by Somerville herself but drawing extensively on contemporary science, was a far more wide-ranging account of the interrelationship of natural forces.
Nottingham Trent University
The Lion Monument, which dominates the site of Waterloo, is not the British Lion but the Batavian one (LRB, 20 November). The Duke of Wellington deplored it: ‘they have ruined my battlefield.’