Saturday, August 25, 2007

Victims' Rights

Rue89 today attacks Pres. Sarkozy's recent call for trials of individuals who are deemed "not responsible for their actions" under French law. The headline puts the matter in rather lurid terms: "Sarkozy wants to try madmen, magistrates rise up." I think the issue deserves more sober consideration. "As chief of state," Sarkozy says, "I must see to it that victims have the right to a trial in which the criminal, the experts, and everyone will be obliged to state his beliefs."

One might respond to Sarkozy by saying that victims may have rights, but not necessarily to a trial. Victims forgo private vengeance because the state acts in their behalf, but it is up to the state to determine the procedures under which it does so. The trial is a device to protect the rights of the accused, who may be deprived of life or liberty. Its purpose is to determine facts and pronounce applicable laws. If the facts are uncontested and the only question is the technical one of the accused's responsibility for his actions, French law allows for exceptions to the right of trial. Sarkozy does not question the competence of the courts to determine "irresponsibility" without a trial, but he finds that the recourse to this procedure may fail to satisfy the victims emotionally: "The trial makes mourning possible." Rue89 calls this "judicial theatricalization" (la scénarisation judiciaire).

But of course there is an element of the theatrical in any trial, and one might respond in turn to Rue89's critique by saying that the "technocratization of justice" enshrined in the present procedure has just as little to recommend it. In the United States, "victims' statements" have become an increasingly common feature of the sentencing phase of criminal and even some civil trials. Such statements respond to the same emotional need that Sarkozy's declaration evokes. Those who prefer a more rational, more disembodied, more blind justice may find the intrusion of the raw emotion often conveyed by such victims' statements distasteful, yet it must be granted that allowing victims a "voice" in the proceedings does take account of a fundamental feature of state justice, that it exists as a substitute for private vengeance, and that the willingness of aggrieved parties to defer to the blind justice of the state cannot be taken for granted and may require some compensatory sacrifice of purer principle. Why the need for such compensation should be greater now than in the past is an interesting question. Whether it should be indulged or resisted or gently corrected can certainly be discussed. But I do think it's somewhat hasty to dismiss Sarkozy's proposal out of hand, as though it were illegitimate even to raise the issue.

Raymond Barre

Raymond Barre is dead at 83. I met him once. I've had brief encounters with any number of French politicians. When they come to Harvard, I've noticed, they generally put on a rather different face from the one they wear in the political arena. Usually they want to seem a little smarter, edgier, wittier, and more spontaneous than when in the bull ring, where the business is more serious and a slip can mean a bloody goring. But there's an element of sham in their performance, as there is when a matador practices with a wooden bull--no duende.

Barre was different. He seemed exactly the same in the seminar room as on the television screen, perhaps because, being a professor himself, he knew the kind of bull he was likely to face. He was as ponderous as he often appeared on television, delivering himself of grand generalities leavened, rather endearingly, by impish and sometimes donnish asides. Giscard may have called him "France's best economist," but I think he was under no illusion as to his professional standing. Translating Hayek had not transformed him into Robert Solow. He had entered the 1988 presidential race as the tortoise to Chirac's hare, but in the end it was the hare who proved more persistent as well as more nimble, and the tortoise lumbered across the finish line with 16.5 percent--a score representing a centrist strength almost exactly the same as Bayrou's this year. In fact, when you look at the 1988 first-round numbers for the right, it is rather startling to find that Barre's 16+ plus Chirac's 23 plus Le Pen's 14 add up to 53+, which equals Sarkozy's strength in round 2 of 2007. (I take the figures from Julius Friend's The Long Presidency, an excellent compendium of l'histoire événémentielle of the Mitterrand years). Change in France comes very slowly--so slowly that sometimes one wonders if it ever really changes at all. Plus ça change ... [CORRECTION: These numbers are wrong. The correct figures are Chirac 19.94, Barre 16.56, Le Pen 14.39 -- which spoils the nice comparison. Trop beau pour être vrai. Thanks to Arun for the correction. The error is mine, not Julius Friend's, by the way: I misread his book; see comments.]

It is hard to square the unflappable, affable, somewhat ponderous Raymond Barre I met in Cambridge with the Barre who this year defended his Lyon colleague and FN leader Bruno Gollnisch as "un homme bien," who rallied to the defense of Maurice Papon, and who came to believe that he had been hounded mercilessly by "the Jewish lobby" for the remark he made after the bombing of the synagogue on rue Copernic in 1980: the bombers had meant to attack Jews, he said, but had killed "innocent Frenchmen" outside the synagogue.

It was probably one of those unfortunate slips that people obliged to speak in public make from time to time, and whether it should have received all the attention and incurred all the opprobrium that it did can be debated. Perhaps it is the French pride in their language that sometimes magnifies these verbal mistakes beyond all measure. No doubt the attacks on his honor wounded Barre and persuaded him that he was the victim of an organized assault on his character. Perhaps it was what Michèle Alliot-Marie called his "intellectual intransigeance" (one suspects this wasn't intended solely as a compliment). No matter. The damage was done, and he had done it to himself.

It's odd that Giscard's reaction at the time of Copernic has been largely forgotten, while Barre's, perhaps because of his recent contretemps, has been revived. Giscard was on vacation at the time of the bombing and declined to return to Paris. I am reminded of this when I see Sarkozy accused--when I accuse him myself--of hogging the headlines and governing from fait divers to fait divers. Sometimes it's culpable for a president not to hog the headlines, not to wear his heart on his sleeve (if he has one), not to share the public's emotion and outrage. The Copernic bombing was one of those times, and Giscard's sin of omission was arguably worse that Barre's sin (or slip) of commission. But the court of public opinion can be as harsh as it is unfair, and there is no appeal.