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Volume 8, Number 2 (1984) reprinted by permission Legal Studies Forum ORWELL'S NINETEEN EIGHTY-FOUR AND LAW RANSFORD C. PYLE Department of Public Service Affairs. University of Central Florida major work. We can anticipate a spate of academic papers, popular presentations and a variety of general responses. Certainly legal scholarship should not be left off the bandwagon. Nevertheless, 1984 may be viewed at first blush to have a lot to do with politics, almost nothing to do with law. The book's protagonist, Winston Smith, probably Orwell's oracular alter ego, declares that his society has no laws, and American practitioners are no doubt inclined to agree. To a lawyer, the most notable feature of the regime of Oceania (1984's huge nation headquartered in London) is its absence of lawyers and courts - there is no legal profession as we think of one. I would like to focus in part on that apparent gap in what otherwise would appear to be a slightly grotesque forecast of selected features of socialist society and politics. I say "slightly" because the frighteningly grotesque vision it presented a third of a century ago is mitigated by a partial fulfillment of the prophetic message. Oceania is an administrative state controlled not by lawyers but by psychiatrists (or psychologists or other social scientists). This shift creates a therapeutic approach to administration rather than a negotiated one. The fact that the therapy acts something like a social lobotomy does not prevent it from being therapy. Orwell reverses the secularization of society, which has been a fairly steady evolution in the West perhaps since the Enlightenment or before. The therapeutic state depends upon domination by mind doctors who in turn rely on religious adherence to their domination and their symbols. In many respects we return to an earlier sacred period in our social evolution with the one distinction that there is a sophisticated technology for enforcing belief, though not nearly as sophisticated as it might have been if Orwell were writing today. Let us first address the problem posed by Smith's assertion that Oceania has no laws. I suspect that Smith, and perhaps Orwell, was confusing legality with legitimacy. Oceania has laws, we just do not like them. Smith regarded Oceania as lawless in large part because of a childhood recollection of a former order to which he attributed legitimacy. In a certain way, Smith reflects what most of us experience, namely, in childhood we uncritically accept authority as legitimate, wise and usually just. As we mature we discover the fallibility of those in authority. In Smith's case, maturity was accompanied by a drastic change in regime, heightening his disillusion. We must suspect as well that Orwell, as an Englishman, had internalized the Anglo-American penchant for process. The cornerstone of our law has been the accessibility and regularity of procedure - rights spelled out in terms of procedure. In Oceania, modeled as it is on the pre-war Soviet state, rules are substantively oriented to serve goals which always take precedence over procedure. To one who has always accepted a system of justice based on fair procedure, the regime of 1984 must always seem unbearably lawless. Although the regime appeared repressive to Smith, it was not this feature which bothered him as much as the lying, rewriting history, misrepresentation of current events and facts, and endless sloganizing designed to entrap the subject masses. Smith was an employee of the Ministry of Truth and was often responsible for editing and rewriting information. , He was painfully aware of the manipulation of the truth. Big Brother's henchmen had not yet perfected their psychological techniques to the point that they could resolve effectively the dissonance between knowledge and belief. Smith knew the propaganda was false and the slogans meaningless, yet even he was expected to believe and trust. Repression and prevarication are devices commonly used by the powerful to assert legitimacy since the exercise of power never benefits the powerless as much as the powerful. Those who hold power customarily must rationalize a privileged position which is never fully deserved. In fact we might say that the lie that legitimates is constitutionalism, the highest order of law, while coercive enforcement is the lowest order or at least the practice of power at the lowest level. Smith's description of Oceania suggests a large gap between these two orders, a gap filled by what we ususally perceive as law. We may be wrong, however, in what we intuitively think of as law, i.e., the rules which legal institutions apply. At an earlier period in history or in a more primitive setting, law may well be composed mostly of political charter (declaring the seat and extent of authority) and policing. The rules that we perceive today as law may be the product of a revolution in legislation in the modern era. In Oceania there are no lawyers and no need of lawyers; there is a direct line from Big Brother to the Thought Police. The futuristic innovation here is that Oceania is a nearly global community rather than a provincial feudal society where authority and enforcement over a local community reside in the hands of a very few persons. Yet Orwell is clearly parodying the Soviet regime and we can think of Trujillo, Somoza and Duvalier, closer to us in time and space, to realize that large numbers of people may well fall under regimes based principally on coercion. As a populous and complex society, Oceania must interest us for its apparent lack of articulated rules. What fills the gap between Big Brother and the police is a bureaucracy. Just as a bureaucracy has expanded in modern nations to assume so many tasks formerly neglected or else left to private or family institutions, in Oceania the bureaucracy has assumed responsibility for law, religion and education. We should not underestimate the prophetic aspect of this message. Since the late forties when 1984 first appeared, controls of the state and regulation of society in America as elsewhere has become increasingly the prerogative of the bureaucracy, which has grown to a size barely imaginable in Orwell's time. Americans look constantly to government for the solution of nearly all our problems - we have come to love Big Brother. Thought Control and Social Control It is somewhat curious that in this relatively tight and concise piece of fiction the author felt the need to add an appendix in which he explains "Newspeak," a revision of English ("Oldspeak"), formulated by the Oceania regime. Perhaps in the context of the late forties in the English- speaking world the use of acronyms, abbreviations and abbreviated compounds may have been somewhat novel. Still, I would imagine that the reading public could easily have gotten the point by reading the book; Orwell must have been intent on making clear a political (or psychological) statement by including the Appendix. Animal Farm had already shown a certain fascination with the power of slogans to distort and misrepresent the motives of those in power. And we should be particularly interested in the fact that slogans in both these books are in some sense "rules." They are commonly constitutional rules in that they are fundamental principles, the basis for the generation of enforceable rules. For example, "All animals are equal" serves as a justification for revolutionary action as well as the enforcement of duties. "All animals are equal but some animals are more equal than others" is, of course, a much more clever statement in that it continues to assert fundamental rights at the same time that it is designed to imply justifiable privilege for some. Orwell carries this sort of logically indefensible statement even further in 1984 with "WAR IS PEACE," "FREEDOM IS SLAVERY," and "IGNORANCE IS STRENGTH." The equation of opposites is so obviously illogical that the assertion of its truth suggests a higher sacred wisdom. I am reminded of Zen koans or Hindu mantra or even "The first shall be last and the last shall be first, " and "The meek shall inherit the earth." Ritual use of language suggests a higher meaning to meaningless (or relatively meaningless) phrases which is understood by the wise leaders. We should not make the scholarly or lawyerly mistake of trusting our semantic powers in interpreting Newspeak. The manipulation of political words in Newspeak follows its own semantic, which is powerfully reinforced by ritual. It is thereby removed from ordinary logical constraints. We may see that the slogans are nonsense; but that is because we read them as ordinary English and not as political formulas and sacred symbols. In a somewhat different way from the political slogans, Newspeak is a language which is designed to control the masses Its basic purpose is to purge and condense English to the point that "heresy" becomes unthinkable, and Orwell's choice of the word "heresy", rather than some other word signifying political dissent, is illuminating. As the entire vocabulary is being changed, Orwell emphasizes that particular attention is paid to the political vocabulary, of which a significant element is social control. We might even say that Orwell's thesis is that with the proper language internalized by the masses other forms of coercion are no longer necessary. And I think we ought to take this author quite seriously. Orwell was once a bureaucrat, a literary critic, a successful author, and a student of socialist politics. He was an expert in the impact of language on people and he was very much concerned with warning us about the language of false prophets. Let us look at part of his analysis of Newspeak. Although Orwell claims through Winston Smith that law does not exist in Oceania, revealingly, the authorities have invented the terms "sexcrime" and "crimethink" which are Newspeak words for sexual immorality and thought crimes, respectively. What the Oceania authorities have done, in our own perspective, has not been to create a criminal law as we know it, that is, a law of crime in the secular sense, but, rather, to ritualize the language of law to the extent that legal thoughts are sacred. "Sexcrime" appears to be borrowed from ancient sources. For a long time in Western history, the law of marriage and sex was strictly a matter for the ecclesiastical courts; "crimes against nature" covered a host of non-procreative sexual acts. This comes very close to "sexcrime," which includes everything except "goodsex," i.e., "normal intercourse between man and wife, for the sole purpose of begetting children, and without physical pleasure on the part of the woman; all else was sexcrime." It is interesting to note that in the very next sentence Orwell refers to "heretical thoughts" and the difficulty of expressing them in Newspeak. The authorities in Oceania have chosen to control disapproved conduct in part by ritualizing the language in which conduct is defined. The voice from the telescreen shouts: "Thoughtcrime does not entail death;Sloganizing reduces the already narrowed vocabulary of Newspeak to abstractions which are intended to be internalized by the citizens to such an extent that deviation is not ordinarily a perceivable possibility. To impose this upon a nearly global urban community is the monumental task of the authorities in Oceania and one which in 1984 is nearing completion. If there are no laws (p. 8) there are nevertheless "punishable offenses" such as "facecrime, " which is constituted by wearing an improper expression on your face (p. 62). Almost anything could constitute "crimethink" ("thoughtcrime" in Oldspeak) and was apparently punishable by death although such a punishment appears to occur in the case of Winston and Julia only after their thinking has been adjusted to the point that they accept the faith, i.e., they love Big Brother. And despite the apparent effectiveness of thought control, coercion is evidently commonly necessary and the spectre of police arrest is made particulary fightening lest anyone be tempted to disobey imperfectly internalized rules. Deviation from the rules appears to be as much "sin" and "heresy" as it is crime, and confession and the acceptance of guilt were the means of rehabilitation rather than punishment as such. O'Brien, in the process of brainwashing Smith, compares the Oceania attitude toward deviance with that of the Inquisition (p. 257). Yet O'Brien notes that the Inquisition was less effective, making martyrs out of its victims. In Oceania, he goes on, the deviant must ultimately surrender of his own free will (p. 258). Clearly, our notions of crime and punishment are quite primitive by 1984 standards. In fact, what may be the frightening feature of 1984 is the use of primitive techniques in a very sophisticated fashion. Social control is established by thought control with the ultimate threat of physical violence (the citizens are unaware of the brainwashing procedures). In this process politics and religion seem to have been reunited. Orwell is certainly drawing from totalitarian models of the thirties, both communist and fascist, in developing the cult of the leader and the propagandazation of a political ideology. Artistic license allows him to present these techniques in a more advanced form than we believe them to have yet existed. That Orwell had in mind some new use for religion is echoed by the following statements found in the Appendix devoted to Newspeak: What was required in a Party member was anCertainly in media propaganda and instruction, the new religion was designed along Orwell's construction of a modern political psychology, modeled on the experiences of Nazism and Soviet communism, but I think it is the blend of religion, applied psychology and law that is worthy of our attention. We wonder whether Smith's assertion of a society without laws is also Orwell's characterization, i.e., did Orwell unconsciously rather than consciously build a structure in which law was imbedded in ideology to such an extent that rules were inculcated rather than articulated? Crimes and punishments existed without explicit rules. He has gone one step further than Animal Farm, where rules were constantly promulgated, only to be quickly reformulated without notice. In 1984 promulgation is no longer necessary. How far have we come toward Orwell's vision? Quite clearly we have moved steadily onward toward an administrative state where the bureaucracy assumes more of the responsibilities formerly entrusted to non-governmental institutions. And I think it is noteworthy that this tendency is world-wide, regardless of culture, history or ideology. American bureaucracy is still legalistic, that is, lawyers still play a large role in the administrative state. It is possible, however, that lawyers are becoming more and more functionaries of public and private bureaus, and I include the large law firms in this. The growth of specialization, computerization and competition have all coalesced to transform the practice of law into the business of law. If the importance of the legal profession seriously diminishes, I suspect it will come about through the bureaucratization of lawyers into civil servants. Winston Smith, for instance, is a modern scrivener and I think it possible that some parallel transformation of lawyers could take place. In other realms of our society, the Orwellian vision is closer to the mark. The masses are certainly subject to the whims of those who manipulate their brains. Statisticians, pollsters, PR men, Madison Avenue and Hollywood have all had their fling at mind control. As Orwell predicted, the "telescreen" has been the instrument of thought slavery. Television has its profound impact and the computer's "telescreen" is being readied for the final coup. This incredible vehicle for the presentation of information and misinformation seems to me to fit quite neatly into the Orwellian vision. I am reminded of a recent debate in which "60 Minutes" was examined as to whether it was news or drama. I wondered what the debate was about since such a distinction is hardly relevant to contemporary TV - it seems to me that the Miss America Pageant is fiction, pro- football is a documentary, evening news is drama, morning news is comedy and "Dallas" may be reality. On the one hand, television programming is junk food for the masses, "prolefeed" in Newspeak, but on the other hand it powerfully defines our culture, and thereby defines what is real to us. Orwell seemed to realize that modern technology could transform all communication into some form of entertainment and in the process control our thinking. Consider for a moment that Jack Klugman addresses Congressional committees on health and Veronica Hamel addresses meetings of the American Bar Association (nor should we forget our President is a former movie cowboy). Apparently members of Congress and attorneys have accepted the actor in place of the expert or perhaps expertise is no longer meaningful in a political sense. In any event, television controls our information and we accept its magic and its performance. Orwell was quite correct in envisioning the "telescreen" as an essential vehicle for thought control, even though he saw it not only as a propaganda device but also as a spyglass. If it becomes the latter, I suspect it will be as a computer into which we all put our private data. Critics of television have accused it of all sorts of crimes but I think it is clear that television has been significant in portraying American society to itself. Its main effect has been to trivialize just about everything. By and large, television programming has done what language was supposed to do in Oceania, i.e., narrow down our vocabulary to the extent we tend to think in very restricted terms about immediate but trivial problems. Television is more total than the approach of the Ministry of Truth, which was working primarily with the vocabulary of the spoken language. Television narrows life itself to a small range of significant problems. If Orwell were to write today, the focus of his prophecy would be the computer. All the devices at Big Brother's disposal were nothing compared with the computer. It controls the flow of information and its processing as well as the production and automation in much of industry. Whoever controls the computers will very likely control society. The impact in law is already being felt. Legal research may cease to be a creative task and may become a purely mechanical one left up to the lowliest employee of huge firms which are run so efficiently with the assistance of computers that smaller firms will be of use only in trivial or bizarre legal confrontations. It is interesting to note the awe with which we now view the computer. Parents quite willingly accept the notion that their children will inevitably be failures in life if they fail to acquire computer skills. Our attitudes toward the computer and what it can do are like acts of faith. We have been predisposed toward this by our traditional love and respect for science and technology and pre-adapted for it by our love for viewing the cathode ray tube. Perhaps the means for Orwellian thought control are at hand. This may sound apocalyptic, but we have reason to be fearful about relinquishing our free will to machines which can monopolize information and industrial production. A lesson to be learned from 1984 is that belief is totally manipulable when power rests in the hands of those who have total control of the dissemination of information. The second lesson from all this, as far as lawyers and the legal profession is concerned, is that there is a sound reason behind the separation of church and state. The secularization of the legal system is a great protection if legal practitioners are similarly secular in orientation. A secular legal system based on rationality grounded on ethical inquiry offers far greater hope for legal reform and social change than a society whose legal system is based on orthodoxy, whether it be legal or some other kind of orthodoxy. If we must believe in something let us believe in "due process," a very vague concept, but one that allows a judge to step in where he perceives injustice. Such a notion encourages inquiry and reform when the judiciary is ethical and fairminded. In my judgment, the reformer has an important task besides the obvious one of change. That task is to help create the legal environment of reform. Whereas the legal system attempts to create a forum for the just resolution of disputes, we should not neglect the encouragement of ethical development in those who make the rules of the legal market place. We must take an activist role in educating judges and practitioners as well as students. To me the logical basis of the concept of due process (in the procedural sense) is the creation of the critical ethical faculties of the populace. This goal is exactly opposite that of the 1984 regime. |
