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Chapter 4

THE RULE OF LAW

[16] After French feudalism was destroyed right down to its basic constitution in the typhoon of the great revolution of 1789, rights to protect individual citizens were included in the laws of the state.¹

Laws that protect individuals in a democratic state are generally known as democratic rights. What we are dealing with specifically in this section are the rights of individuals in relation to violation of law. Using the terminology introduced above, we see that democratic rights represent a negative right-the right to be free from arbitrary endangerment in matters relating to arrest, investigation, and trial. According to such rights, a person who has not yet been proved to have committed a crime, or who merely is suspected of having done so, cannot be arrested arbitrarily by anyone at all. Neither can he or she be pressed by torture into making statements nor punished arbitrarily in violation of humanitarian principles.

Regulations defining rights in regard to arrest, investigation, and trial of persons suspected of having violated the law are not exactly the same in the different democracies, such as England, France, and America, but I may summarize their general content as follows:

1. In a democracy citizens may be arrested only by people charged with that responsibility by law and on behalf of a legally constituted governmental body, on the basis of evidence, obtained from witnesses under oath, regarding specific charges relating to laws of the state that have been previously defined by legally constituted representative bodies.

[17] 2. In the investigations prior to a public trial, the accused may bring forward their own witnesses and lawyers. Force and torture, generally known in the Anglo-Saxon world as the third degree method, may not under any circumstances be used by those in authority. If the judge considers the accused to have violated the law, the accused must then be brought before a legally constituted state court. They must be given full opportunity to defend themselves, to bring forward witnesses, and to use defense lawyers to confront those experts, employees, and strong organizations that have been available to the state. All this must be carried out in open session.

3. The accused must be punished by preexisting legally established means (hanged, jailed, fined, or demoted) and according to legally established provisions (regarding length of imprisonment, amount of fine, etc.). Punishment can be imposed only after investigation and public trial conducted by a legally constituted state court. The accused must have had the right to defend themselves, if necessary with the assistance of experts, against the prosecutor, who is assisted by the experts and organization of the state, as mentioned in paragraph (2) above.

In the era of arbitrary arrest, investigation and punishment were carried out by a single body or person. It is obvious that many people were arrested and punished in the interest of the accuser himself, for such reasons as hatred or jealousy. Accordingly, the arrest and investigation procedures took the form of mere preliminaries to the punishment of the accused. In the democratic era, however, the complete statements of both the accused and the accuser had to be weighed and compared by a judge, according to the law.

Indeed, significant progress was achieved by the great French Revolution in the area of a citizen’s right to self-preservation. However, we do not yet know perfection in any part of the universe or any branch of life. What we regard as perfect today will tomorrow be overturned by the more perfect. In turn this more perfect state will likewise be overturned, and the process will go on unceasingly. The motion of thesis-antithesis-synthesis goes on everywhere and at all times.² Let us not be angry or disappointed by this fact. On the contrary, let us be happy and satisfied because in all fields of endeavor things are becoming ever more perfect, for ourselves and for our descendants. This is life-constant motion, change, and improvement in nature’s bounty: thesis, antithesis, synthesis. Improvement is not an empty, meaningless thing, and to pursue improvement is not a futile task like chasing a fata morgana.³ Was not feudalism clearly superior to a society based on head-hunting?

[18] In the matter of individual rights we can regard feudalism as the thesis, opposed by the antithesis of the third estate, giving rise to the bourgeois synthesis of the democratic rights to self-preservation. But this synthesis achieved by the bourgeoisie in its struggle against feudalism has now become the thesis, and it is confronted by the antithesis of the proletariat and the dark-skinned and colonized nations, a conflict that generates the following questions:

1. Of what meaning are established means of arrest—by whom, on whose behalf, on what basis and whose instructions—if in capitalist society over 55 percent of the citizens and in colonial countries over 99 percent of the inhabitants are constantly oppressed by economic crisis, unemployment, war, hunger, and famine? When 99.9 percent of the violations of law are rooted in the terrible condition of society itself and in the ignorance and poverty of its members?

2. Of what meaning are regulations for investigation and public trial, to take place with defense lawyers and under the scrutiny of a judge, if the accused are poor people who have neither the education nor the knowledge to defend themselves nor the money with which to hire slick lawyers who know how to blacken white?

3. Of what meaning is justice when even the most just lawyers are imbued with the interest, education, and philosophy of the bourgeoisie? And what does it mean when, for quite a section of democratic capitalist society, modern prisons give more protection (food, clothing, and accommodation) than does society at large?