Richard Duffee, October 2019
The short essay below, “Crowd Control,” is the first in a series concerning the histories and impacts of broad legal issues on concerns of the peace movement —global warming, disarmament, authoritarianism, ideas of truthfulness, imperialism, and so on. Twenty years ago teaching the philosophy of law in two Indian law schools gave me the chance to learn the social origins of legal traditions rarely taught because legal institutions have a vested interest in treating their ideas as if they were natural facts instead of human inventions. Such authoritarian habits certainly make it easier to justify hanging a man or punishing a country by embargo for the act of a dictator. They also obscure some or all of the truth.
I’ll introduce issues in contexts that make some of their implications more visible than usual. For instance, I argue in “Crowd Control” the constitutions of former colonies of Britain normally don’t mention that they ground their law in British Common Law. So they don’t need to talk about the psychology of kings. But British kings until Henry VIII received their crowns from the Pope and believed they were kings because a deity wanted them to be. Being anointed usually made them believe they shared some of the deity’s omniscience—or that they should use spies to acquire some of it. Kings often imagined they knew other people’s intentions. They certainly were not going to take seriously what a man suspected of a criminal act said his intention was. When the king made a decision, he had no compunctions about naming someone else’s intentions. He delegated this somewhat magical power to his judges. Administrators familiar with the judges then had no trouble deeming themselves to have such powers too. They came to think this was part of government work: one knew the intentions of one’s subjects. And they would train their own underlings—generals, police, sergeants–at-arms, in the same presumptions. This imaginary knowledge of other people’s motives is the norm in former British colonies. Our courts perpetuate it too. This false and arrogant doctrine affects most actions announced by the top tiers of their hierarchies.
This tradition allows former colonies to set up death squads that completely deny due process—and is used implicitly by our own secret agencies. Since we are a bit freer of this corruption than poorer former British colonies, we can protest the climate change that our country is responsible for while people in poor countries are often risking their lives if they attempt the same thing. The reason: they inherit the common law system and are under heavy pressure from the governments of the rich countries to continue to treat their citizens as subjects—that is, as pawns, puppets, and animals. For instance, it was Felix Frankfurter who, when visiting India when the Indian Constitution was being discussed, told Indian judges that they should not include “due process” in their constitution because “it was too expensive” to implement. The result: enormous violence by the Indian police and military. In Uganda Idi Amin thought himself “the last king of Scotland,” by which he seemed to mean a man who is everyone’s father and knows everyone’s intentions, and so would be right to torture or kill anyone he suspected. It’s the commonwealth governments’ free use of that principle, which we got just a tiny whiff of at Kent State, that makes so many poor countries so rigid and tyrannical. And the Republican Party promotes programs presumably designed to turn us into a caste society, the most expedient way to guarantee billionaires that their descendants will have the same privileges they have now.
I. Crowd Control
Two white wooden A’s hammered together at the ends of a white beam nailed between their tops: that’s what you get to look at sideways when you’re beaten down with lathis (club consisting of a heavy stick bound with iron; used by police in India) or shot.
Most former colonies of the British Empire still use British colonial law, their degraded form of Common Law—without juries—and count any gathering of five or more people as a political gathering, and illegal.
In 1995 I talked with the Warden of a Youth Hostel on Nyaya Road (in Sanskrit, “Nyaya” means “Justice”) on the south side of Delhi in the edge of the area with most of the embassies.
He asked, “Where are you coming from?”
“Andhra,” I said.
“Andhra! I used to work in Andhra,” he said.
“Oh, what did you do?” I asked.
“Crowd control,” he said.
“How did you control crowds?” I asked.
“By killing people,” he answered. He looked into my face and explained, “You pick out the people who are leading the crowd. You shoot them.”
In Indian law schools students learn government administrators see “crowd control” this way: if there are more than five people in a crowd, those people all know they are breaking the law. The people in front and the noisy people, the people moving fastest, lead the crowd. They’re inspiring others to break the law. They know this; their acts are intentional. (Judges deem themselves to have the power to judge other people’s intentions—and administrators assume that power can be delegated—to themselves and to the police and military—or death squads.) People in the crowd know they’re likely to be shot. You shoot them because, if you don’t, you’re encouraging them, letting them get away with something they know they shouldn’t be able to get away with. Of course, shooting a person does more than discourage him from “leading” a crowd; but it does discourage OTHER people. Colonial law—and post-colonial law— discourages any attention to individuality: administrators can believe it can be just for one person to pay with his life for another person’s intimidation (“instruction”). Independence doesn’t erase this training.
My father-in-law and sister-in-law were in some of those demonstrations in the 1970s. They felt the government was unjust. Where did the government get the right to make its monarchical presumptions about people’s intentions and knowledge? But that was jurisprudential language you don’t hear in the streets of former colonies. People feel they are defending rights the only way they can. The government claims it’s preventing civil war. Human rights were not taken seriously; in 1995 the Indian government passed a statute saying international rights are part of the supreme law of the land, but lawyers who argue from human rights are laughed out of court. On the street, you just got hit. Any difference between asserting or defending a right and being an anarchist overthrowing the government is regarded as trivial.
Of course, on these terms, the government always wins. It’s not puzzling: it follows from their definitions. The government knows this. They don’t say it to outsiders, just to each other. They claim it’s necessary. For what? For them to rule. Why? Their rule is unjust. In these circumstances, people often resort to circular reasoning.
Protesting Climate Change
In Commonwealth countries you can still die this way by protesting something as universal as climate change. In Singapore, Malaysia, Bangladesh, the Maldives, Pakistan, you can pay with your life. Are they causing global warming? We are—and the other rich countries. Do we risk being killed for it? We might be inconvenienced. But shot?
The average American damages the environment 27 times as much as the average Indian. In the Maldives in 1998 the highest point was 6 feet above sea level. I had a friend whose home was washed away. He’s a refugee in India. Where can he live? We’re being trained to love walls.