A CASE OF THE TRIAL

“Each time a defendant comes to court and contests his or her guilt, a process unfolds that reiterates precepts that are central to the self-image of modern democracy.”

The law is reason, free from passion. Or so said Aristotle. The crux of Sadakat Kadri’s The Trialattempts to prove the opposite. Kadri’s ambitious book looks at the western criminal trial from the days of Socrates to the more recent trial of OJ Simpson. It traces the contours of law, and finds the interdependence of reason with passion, juxtaposing one with the other. Each chapter navigates a particular era, rummages through its social fabric and seeks to explain the evolution of the law. The book is divided into eight thematic and chronological chapters. Kadri explicates notions of fairness and justice, emotions and passions and correlates each to the society and its norms.

While modern criminal trials in western societies are considered secular, founded on reason, their existence has been shaped by religion and superstitions. Kadri tries to poke into these aspects in the first chapter, which looks at the conflict between the need to ‘punish’ and the fear of mistakes. The idea of the law “descending directly from the gods”, and hence the onus of its adjudication on them, is tacitly explored. Kadri uses the story of Oresteia, by Aeschylus – “The oldest courtroom drama” to reflect on the tension between the two ideas of justice that were at odds with one another. The first, assumptions that people were at fault only if they had done evil deliberately. The second, that some deeds demanded punishment, regardless of the perpetrators intention, if the rage of the gods was to be forestalled. Kadri then goes through the trials of the Greek and Roman eras, describing their rationale in detail. He mentions practices such as ordeal (drowning, freezing), combat, compurgation (proving innocence by making gathered crowds swear it) to carve out the idea of justice.

The chapters on The Inquisition (or orthodoxy revisited), The Witch Trial, and the Trials of Animals, Corpses and Things (even against weevils that threatened vineyards, and the “defunct decedents” who died before they could be called for their cases, but were tried after their death) are downright fascinating. They challenge every modern notion of rationality, and portray the banalities that societies across the world considered fair and legal at some point in their history.

The subsequent chapters delve into modern times, starting with the Moscow Show Trials. The chapter on the “War Crimes Trial” – rips the visage of idealism and justice with respect to international law, from the Nuremberg Trials onward. What Kadri calls a “shameful little secret of international criminal law” is the fact that “Nuremberg was conceived in Moscow and came into being despite the wishes of the western allies rather than because of them.” Kadri explains how the western Allied leaders “resolved to reiterate Churchill’s earlier proposals for extrajudicial killings. Stalin would be asked to approve a loss of “50–100… world outlaws” who were to be “executed summarily on capture and without recourse to the method of trial, conviction and judicial sentence”.

The last chapter dedicated to the Jury Trial looks at the modern Jury system and the role and significance of evidence. Kadri details how the Jury system has become a part of every country that saw the shadow of the British Empire, barring a few. He talks about it being a venerated system of justice in the US and UK. Kadri argues that jury trials outline perpetrators as ‘bad’, so as to define what is good. That in exposing criminals to a community denunciation, it reestablishes to the citizens that they are law abiding, morally sound characters in contrast to the immoral defendants being persecuted. Through multiple cases and their absurd resolutions, Kadri then goes on to note how juries are fallible. The most disputed questions at a criminal trial are the credibility of the witnesses, the reasoning behind the beliefs and doubts, and whether such issues demand “social legitimacy” rather than “fiendish cleverness”. He concludes that jurors may not be oracles, but their diversity allows their potential failings to cancel each other out. The “prejudices and stupidities of like-minded professionals are less likely to – and those of one judge never can.”

The Trial is not an easy read. It is encyclopedic and at times hard to digest, given the magnitude of information that has been condensed within its pages. While Kadri notes that the book is specifically on the jury system of criminal trials, it does not adequately address why countries such as India, Singapore and Malaysia do not follow this system. Nor does he assess the deficiencies of other systems in comparison to the Jury system. Though it is thematic, it often digresses from case to case, making too many points at once. However, Kadri’s writing, his analysis peppered with fascinating examples, and passionate interjections absolve most of its flaws and keep the pace. Like his other book Heaven on Earth – a legal history of the Sharia laws across the Muslim world – The Trial attempts to analyse multiple themes and ideas, and then contextualise their relevance through time.

Kadri’s views of the criminal trial often make the reader introspect on the nature of justice. How is justice defined and what does it mean to each stakeholder – the society, the defendant and the victim? Assessing this is not simple. It means understanding the norm, beliefs, identity and geographies of the lands where it was served. It also means understanding that law and order that seek to be evidential and rational, are products of evolving sentiments and emotions, and it is these which eventually frame notions of justice and fairness. Kadri is often pessimistic and cynical of the criminal trial. He reveals its rot and decay, its fallacies, inconsistencies and the blatant misconstruction of the ideas of justice. He looks at the problems with evidence, and the manipulation of arguments that distort the empiricism of the jury.

However, his conclusion is not pessimistic. Like its namesake by Kafka, the book delves into the surreal aspects of a judicial system. Each chapter is punctuated with quotes from Kafka’s novel that reaffirm the absurdity of a system perceived to be an ideal. But the case Kadri does make in his cynical view of the trial is that it is the best of all the alternatives, and that the current form of the judicial system in Western nations has evolved into this state of imperfect perfection, after centuries of trials, errors and realisations. He says that the crucial question remains whether there exists an alternative that can command equal respect and more confidence.

He concludes that each time a defendant comes to court and contests his or her guilt, a process unfolds that reiterates precepts that are central to the self-image of modern democracy. The criminal trial portrays “a state that is sufficiently self controlled to precent public officials from unilaterally deciding anyone’s fate, and humble enough to trust its citizens to watch the law in action – even, sometimes, to do justice themselves”. Kadri affirms that the criminal trial literally enacts the meaning of human dignity –“showing a civilization that treats its most despicable enemies with respect – presuming them innocent, confronting them as equals, and giving them a champion to argue their cause”.

Trials then are more than just idealised or flawed spectacles. They stand as testimonies to the idea that despite human inconsistency and irrationality, the best form of reasoned and well-argued deliberations should always triumph over any instinctive and savage desire for punishment or retribution.

( This post was originally published on No Man’s Land)

Sarah Farooqui in ADDA OPINION

A review of Sadakat Kadri’s The Trial which looks at the history of the criminal trial from the days of Socrates to the trial of OJ Simpson.

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