Habeas corpus[1]

Or: ‘What I am charged with ?’  Hans Kelsen and Aung San Suu Kyi.

 

In the picture: the bars of removal are very stubborn, but graceful and very decorative.

 

 

The idea for this short article came from the reading of two interesting, agile books : ‘Lineamenti di dottrina pura del diritto’[2], by Hans Kelsen and ‘Liberi dalla paura’[3] by Aung San Suu Kyi. Both authors talk about justice, rights, and law.

‘Justice‘ is, in my opinion, one of the earliest thinking in a child, and since birth : ‘justice‘ is in fact his, or her, sanction towards each of the others with whom he finds himself – or herself – dealing; a judgement of liking or non liking what is received, that is the offer from reality. And it is thanks to this early judgement of ‘right‘ or ‘wrong‘, ‘satisfying‘ or ‘not satisfying‘ that every child can elaborate even the relationship with each of his, or her, others.

However, a relationship that, unlike what happens for adults, a child considers indispensable to his, or her, own life : it will be very difficult in fact for him, or her, to get away from an adult who even mistreats him or her, if the adult somehow managest or takes care of the child.

Then, when an adult treats a child as if he himself – or she herself – had been mistreated, from other adults or from ‘his‘, or ‘her‘ society, even the safe judgement of a child is burdened of an injustice suffered from the adult and which the child however isn’t experiencing.

“If you analyze any fact considered as a law, for example a parliamentary resolution, an administrative act, a judicial sentence, a legal transaction, a crime, two elements can be distinguished : the one is a significantly perceptible act which proceeds in space and time, an external event, mostly human behaviour; the other is a meaning, a specific almost immanent meaning or adhering to this act or event… From this arises the need to distinguish the subjective meaning from the objective meaning of an act. Subjective meaning can, but does not have to coincide with objective meaning that this act has in the system of all legal acts, that is in the system of law… When a secret organization, aimed at freeing the homeland from dangerous people, sentences to death an individual they consider a traitor, and have a trusty man carry out what they subjectively believe and call a death sentence, this is objectively, that is in the system of objective law, not an execution of a capital sentence, but rather an assassination… although the external appearance of this is not at all distinguishable from the execution of a capital sentence”[4].  

And here’s what Aung San Suu Kyi says. “Since the relationship between fear and corruption is so close, it cannot be surprising that in every society where fear matures, corruption is deeply rooted in all its forms… Something more than the difficulties of building a barely acceptable standard of living had eroded the patience of a traditionally good-natured and acquiescent people : the humiliation of a way of life conditioned by corruption and fear… The Burmese had grown tired of a precarious state of passive apprehension…”[5]

“When you work in the national interest you don’t have to show loyalty towards anyone in particular, nor for short-term goals. Give up personal loyalties. I would like us to continue our journey with sincere unit of purpose and a clear mind. I always tell people to have high aspirations… as high as possible.”[6]

But, even considering “the highest possible aspirations“ which certainly animate Aung San Suu Kyi’s  both social commitment and personal sacrifice, her invitation to “give up“ one’s judgement tout court, one’s individual experience of ‘right‘ or ‘non right‘, satisfaction or unsatisfaction, that invitation then can make abstract the rights so hard won.

In fact, submission and rebellion are the unsuccessful result of that same acquiescence, individual first and foremost and then social, as Aung San Suu Kyi herself also remembered, when she admits the “giving up“ of thinking.

   

 

Marina Bilotta Membretti, Cernusco sul Naviglio 18 giugno 2016

TutorSalus.net - Freudian journalism

 

 

 

[1] ‘Habeas corpus ad subjiciendum’ (translat. : ‘That the accusation has substance/body’ or literally : ‘That you have your own body’) is a particular order – in English ‘writ’, also said ‘Great writ’ - and of fundamental importance in the English system of law : in the law of origins, each one was subject to a plurality of local and seigneurial jurisdictions which could also physically dispose of the subjects. The text of my Contribution to the debate was presented during the 8th working session of June 11st, 2016 at the Symposium ‘Who can‘, organized by ‘Società Amici del Pensiero - Sigmund Freud‘ 2015 – 2016. An inspiration for this contribution came also from the film ‘Shawshank Redemption‘ (U.S.A. 1994) with Tim Robbins and Morgan Freeman, directed by Frank Darabont, taken from a story by Stephen King. 

[2] ‘Lineamenti di dottrina pura del diritto’, Hans Kelsen 1934 – Piccola Biblioteca Einaudi (2016). Hans Kelsen (Prague 1881 – Berkeley/U.S.A. 1973) was a distinguished innovative jurist, who criticized the transcendent idea of law and justice.

[3] ‘Liberi dalla paura’, Aung San Suu Kyi 1991 – Sperling Paperback (2012). Aung San Suu Kyi (Rangoon/Myanmar, former Burma - 1945) is daughter of Bogyoke Aung San, Burmese national hero and leader in the struggle for independence from English colonial rule and from Japanese occupation. She received the ‘Nobel Prize for peace‘ for her own activity in favour of the human rights in 1991, while she was under house arrest in Burma : the award was received by the two sons Alexander and Kim.

 

[4] ‘Lineamenti di dottrina pura del diritto’, Hans Kelsen 1934 – Piccola Biblioteca Einaudi (2016), pp.48-50

[5] ‘Liberi dalla paura‘, Aung San Suu Kyi 1991 – Sperling Paperback (2012),  pp.183-184

[6] ‘Liberi dalla paura‘, Aung San Suu Kyi 1991  – Sperling Paperback (2012), p.217 ‚‘Il ruolo del cittadino nella lotta per la democrazia‘, speech pronounced on December 3, 1988, Burmese National holiday.