lundi, septembre 04, 2023

Is Scots Law infringing women’s human rights? Is Giorgio Agamben’s ‘State of Exception’ theme relevant?

Is Scots Law infringing women’s human rights? Is Giorgio Agamben’s ‘State of Exception’ theme relevant? 
(Fearghas MacFhionnlaigh, 3 Sept 2023)

Roddy Dunlop KC’s summary of the category of “aggravation” is enlightening:

“Police are not obliged to report to the Procurator Fiscal every alleged crime. They have a discretion to issue warnings. However, that does not apply where there is an aggravation. If there is then, in general, the case must be reported to the PF.


“The PF is not obliged to prosecute every reported crime. Again, there is a discretion. Once more, however, the discretion not to prosecute is removed, or at least tightly circumscribed, where there is an aggravation.


“An aggravation relates to certain (but not all) characteristics. Thus race is covered. As is religion; and sexual orientation; and gender reassignment. Misogyny, however, is not an aggravation. Likewise, being gender critical may be covered under the Equality Act. But it is not covered by aggravations under the criminal law.


“Accordingly, neither an assault on a woman for being a woman, or for being a gender critical woman, is an aggravated crime. A report of such could be dealt with by police warning, or not prosecuted by the PF, under the discretions mentioned above.


“On the other hand, an s.38 (breach of the peace) which involves no assault but which does involve alleged hate crime (ie race, religion, sexual orientation etc – but not misogyny) is aggravated and, in general, must be prosecuted and is not subject to those discretions.


“What this means is a breach of the peace involving verbal abuse of certain minorities must be prosecuted; but the assault of a woman does not have to be. Whether this is desirable or advisable I leave to others. But it’s where the law stands right now.” 


(Acknowledgements to Stuart Campbell of Wings Over Scotland blog for the above info in: ‘How Scotland Hates Women’, 31 Aug 2023)

* * * 

The question of course is where is such arbitrary incoherence coming from. For many of us Nicola Sturgeon has long seemed chief suspect. However, more recently my thoughts have been consolidating around the view that, for all her culpability, she is ultimately no more than a colluding dupe of the British State, complicit in the infiltration and sabotage of the Scottish independence movement. Obvious evidence is that similar selective laws are at work far beyond Sturgeon’s remit (it would be naive to imagine she has “retired”). Such inconsistent laws have global manifestations, if mainly in English-speaking countries.


Giorgio Agamben

A friend a while back got me looking at the analysis of the contemporary Italian philosopher Giorgio Agamben. A central focus of Agamben’s political thought is on what he calls the “state of exception”. We had an example of such with government restrictions during Covid. A more stark example would of course be full-on martial law. Agamben’s insightful observation is that the person (ie Head of State) who suspends normal law is in a sense putting themselves above the law (indeed he/she is thereby “outside” the law). Someone who breaks curfew rules, for example, and gets shot by the military is also “outside the law” in the sense that there is no appeal to normal court procedures. Nasrullah Mambrol, founder of and contributor to the ‘Literary Theory and Criticism’ website) summarises this aspect of Agamben’s thinking very helpfully: 

 “State of Exception
Quite pointedly (for it touches upon post 9/11 politics), a state of exception, which is ‘homo sacer’, gives force to sovereignty: after Carl Schmitt, whose work is also analysed in his more recent work, ‘State of Exception’ (2005), Agamben says that the one is sovereign who can determine the state of exception. The paradox of sovereignty is that the sovereign, like homo sacer, is both ‘outside and inside the juridical order’ (Agamben 1998: 15). 

“According to Schmitt, Liberalism is unable to understand the true nature of politics because it assumes that, on the whole, the juridical system will incorporate political events, will anticipate them and so make legal relations the dominant form of political relations. One should think here of constitutions setting the ground rules of political conduct and the court system as ensuring that constitutions are adhered to by all parties. 

“Were such circumstances to be the norm, there would not be any issue of establishing the nature of sovereignty. However, Schmitt argues, political life is subject as much to the contingent and the unpredictable as it is to any normality anticipated by the law. The contingent and the unpredictable form the basis of the state of exception. The sovereign must, first of all, decide when a state of exception exists and, second, decide upon strategies – including the suspension of normal legal processes – to deal with it. These include, above all, calling a state of emergency. 

“There is thus a correlation between the sovereign and the exception. The exception has no power as such (for the exception is determined by the sovereign); however, without the exception, it would be impossible for sovereignty to be and to maintain itself. Following Jean-Luc Nancy, Agamben invokes the old German term ‘ban’ to describe this situation (Agamben 1998: 28–29). He who is banned by the law is not simply set outside the law, but is ‘abandoned by it, that is, exposed and threatened on the threshold in which life and law, outside and inside, become indistinguishable. 

“It is literally not possible to say whether the one who has been banned is outside or inside the juridical order’ (Agamben 1998: 28–29, Agamben’s emphasis). Thus, the law both posits the sovereign and makes the sovereign the one who is also outside the law. This is the paradox of sovereignty.

“Violence
The issue arising for contemporary societies with their juridical systems, and in particular, for Western style liberal democracies, concerns the extent to which the empty space beyond (and within) the law is taken up by violence. For, with the law (legally) suspended, the will of the sovereign becomes supreme. This ‘will’ can be imposed on a situation with any means chosen by the sovereign, and these might well include violence.

“Here then is the worry behind the paradox of sovereignty: the risk that a sovereign might resort to violence in an irresponsible way. Agamben points, for example, to the suspension of law (including the suspension of the Geneva conventions on the conduct of war) in the ‘war on terrorism’ with respect to those interned by America at Guantanamo Bay in Cuba. There, prisoners have no legal identity and recall the plight of stateless people between the wars referred to by Hannah Arendt (who was a key influence on Agamben).

“Agamben also cites the arbitrary policies involving the suspension of the law being employed to deal with asylum seekers. Increasingly, asylum seekers are purposely processed and their claims assessed outside the boundaries of any state, in international territory. They thus have no legal status and thus cannot appeal to any authority if their human rights are violated. They are non-persons.

“Agamben’s further point is that the condition of the asylum seeker seems to be the general condition on the horizon, as ever larger numbers of people find that conditions have become impossible within the state of origin. Increasingly, too, therefore, the political entity of the nation-state is unequal to meeting the challenge of this new political reality. It is unable, for example, to guarantee human rights by virtue of a person’s humanity, founded as the state is on essentially legal principles. Law can be in force without significance, as illustrated by Kafka’s THE TRIAL (1968)” [AN TRIAIL - Leagan Gaeilge ar fáil/ Irish translation available, Risteárd Mac Annraoi 2017.]

“[…] As Hannah Arendt said, human rights are connected to the fate of the nation-state, and that when the latter declines, so does the defence of human rights. The implication is that globalisation impacts negatively on human rights.”
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