Popular Justice and The Rule of Law -- 1

[LeoCasey@xxxxxxx]

           Strange Fruit
           sung by Billie Holiday

Southern trees bear a strange fruit,
Blood on the leaves and blood at the root,
Black bodies swinging in the southern breeze,
Strange fruit hanging from the poplar trees.

Pastoral scenes of the gallant South,
The bulging eyes and twisted mouth,
Scent of magnolia sweet and fresh,
Then the sudden smell of burning flesh.

Here is a fruit for the crows to pluck,
For the rain to gather, for the wind to suck,
For the sun to rot, for the tree to rock,
Here is a strange and bitter crop.

                              * * *
Popular justice, in which  the people' take  justice' into their
own hands outside of the framework of the rule of law, has a
history, and any serious discussion of the concept must make some
serious reference to that history. In the American context, for
example, one can not evade the overriding presence of lynching
and the ways in which popular justice is enmeshed not simply in
the rough and rudimentary community justice of the frontier
community, but also in the Jim Crow regime of racist terror
against African-Americans. Nor can one forget the mobs which have
marked modern, urban  race riots' (which began at the turn of the
century, it should be recalled, as attacks of white vigilante
mobs upon black communities within cities.) It will not do, I am
afraid, to create a hermetic seal around  revolutionary' popular
justice, and pretend that the issues surrounding it are not one
and the same issues that involve all forms of popular justice
which deny a rule of law. (All the more so since they are those
who would defend the riots which followed the Rodney King
verdicts as a form of  popular rebellion' and  popular justice'.)

This point finds an interesting theoretical illustration in
Foucault's famous 1972 interview, "On Popular Justice: A
Discussion with Maoists" (reprinted in _Power/Knowledge_). Here
it is Foucault who turns out to be the strongest partisan of
popular justice. Foucault argues that the emergence of the
judicial apparatus is part of the development of the modern
state, and that the specific form of the judicial -- "the third
party place of the judge, reference to a law or to impartiality,
and effective sentencing" (p. 36.) -- is intrinsically a form of
class rule. This judicial order has "the appearance of the
expression of public power: an arbitrator both neutral and with
authority, of whom the task was both to  justly' resolve disputes
and to exercise  authority' in the maintenance of public order."
(p. 6) Foucault sees no social advance in a system which, among
its other functions, replaced the blood feuds of feudalism with a
first approximation of impartial, law-based justice; for him, the
judicial form simply disguises class rule. As a consequence, he
celebrates acts of  popular justice' as reversions to the
pre-judicial forms: rebellions are defined, for him, as the moment
when the prisons are closed down, the judges thrown out and the
courts closed down. Further, "it seems to me that a certain
number of habits which derive from the private war, a certain
number of ancient rites which were features of  pre-judicial'
justice, have been preserved in the practices of popular justice:
for example, it was an old Germanic custom to put the head of the
enemy of the stake, for public viewing..." (p. 6) (I, for one,
can not read this passage without recalling in my mind the vivid
accounts of the public spectacles which accompanied the lynchings
of African-Americans, lynchings which included the most graphic
and revealing mutilations of the black body, from castration to
immolation. Ancient rites indeed.)

Foucault opposes the establishment of any  rule of law.' He
begins this discussion with an account of a moment in the French
Revolution circa 1792, when Parisian workers embarked on the
execution of their class enemies. "Now, no sooner had the
executions started in September, when men from the Paris Commune
-- or from that quarter -- intervened and set about staging a
court: judges behind a table, representing a third party between
the people who were  screaming for vengeance', and the accused
who were either  guilty' or  innocent'; an investigation to
establish the  truth' or to obtain a  confession'; deliberation
in order to find out what was  just'... Can we not see the
embryonic, albeit fragile form of a state apparatus reappearing
here? The possibility of class oppression?" (p. 2) Yet when
challenged as to what should replace the  rule of law' and the
judicial apparatus, Foucault's utopianism stands naked: "I'll
reply by what is, of course, an evasion: it remains to be
discovered. The masses have suffered too much over the centuries
from this judicial system for its old form to be reimposed upon
them... The masses will discover a way of dealing with the
problems of their enemies..." (p. 28)

Strangely enough, it remains for Foucault's Maoist conversational
partners to point out any of the shortcomings of  popular
justice'. "During the Liberation there were a variety of acts of
popular justice," one Maoist notes, and goes on to describe an
act which illustrates, for him, the ambiguity of these practices.
"I want to discuss those young woman whose heads were shaved
because they had slept with the Germans. In one way this was an
act of popular justice: for intercourse (in the most physical
sense of the term) with Germans was something which was offensive
to the deepest, bodily, sense of patriotic feeling: this really
was an emotional and physical injury to the people. However, it
was an ambiguous act of popular justice. Why? Quite simply
because whole the people were being entertained by shaving the
heads of those women, the real collaborators -- the real traitors
-- remain untouched." (p. 9) To which I would add, in the
selection of women who had slept with the Germans as the object
for  popular justice' do we not see the most minor of the crimes
of collaboration elevated to the greatest of heights, in no small
part because of sexist and narrowly nationalist conceptions of
the role of women. What other meaning could one give to the
punishment written, in classical pre-judicial form, upon the
bodies of these women as they are displayed for public spectacle
-- shorn of their hair and what remained of their modesty,
swastikas painted across their naked breasts? In this rite of
humiliation, they were excised, symbolically, from the mothers of
France. Remember, it was not Klaus Barbie and his ilk marched
half-naked through the streets of Paris. Even at its best
moments, popular justice reveals the underside of the populace,
the deepest and darkest sexual and racial obsessions a society
harbors.



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