Sticks and stones
How much can the words of a statute hurt Mahmoud Khalil?
Sticks and stones may break my bones, but words will never hurt me. It was junior school where I first heard this. The realisation that a stick or a stone could cause significantly greater harm than a word was one of those early learning epiphanies: enthralled as I was by its irreversible binominal, the realisation was completed by an inward Indeed, they don’t.
The phrase is said to act as a psychological reinforcement for those who might otherwise be susceptible to feeling hurt at the tenor of certain words. Safe in the knowledge that words do not hurt, the verbally oppressed nonchalantly shrug them off for what they are: mere words.
The phrase is up there with others whose common trait is to stop the listener in his tracks and cause them to ask themselves: Is that actually right? And, like any one-liner truism, it is and it isn’t.
Brace is a word, and, like any other word, it does not have the capacity in and of itself to hurt you. But, if you hear it whilst bent forward with your hands behind your head in an aeroplane, the chances are high that you will soon feel hurt in your bones. I think I heard somewhere that the position advocated for a crash landing on seat-back information sheets is best suited to breaking your neck outright upon impact, but maybe I read the wrong comics. The fact is that brace is probably the most direct portent of imminent hurt you will ever get. Falling babies apparently seem not to suffer any great permanent damage from their falls precisely because they don’t brace for impact, but I don’t know if that’s a useful observation for the occupants of a crashing airliner. It does strike me that, for the odd occasion when they do land other than on all three wheels, it would probably be better if the passengers faced backwards, would it not? It’s not as if there’s a view out of the front window.
An airliner in the throes of crashing is not the only scenario in which a word can presage physical hurt. A baying crowd holding the instruments of their hurt—Molotov cocktails, batons, guns, rocks—can also issue words as a warning of what they are about to hurt your bones with. To that fact is allied consideration of the point at which the—harmless—words will be supplemented with the—harmful—sticks and stones. What the age-old saying elides over is the fact that words and sticks and stones often come accompanied by each other, and then the prospect is one of inevitable hurt, regardless of which of them might come first.
Besides which, whoever dreamt up the saying—as a false security to assuage the fears of the pestered—would seem to be unaware that it acts simultaneously as a goad to those who would cause hurt: forget the words, boys, let’s get straight to the bit about sticks and stones.
In any event, bullies and oppressors are all too aware that words do hurt. Of course they do. They have been used as long as words existed to compose invective, disdain, to rally armies against each other. Words are very, very powerful instruments of hurt. Words are so hurtful, they are even actionable at law. They can destroy reputations, and the right ones can build them. The idea that words will not hurt you even if sticks and stones will is simply arrant nonsense.
The arrest in New York of Mahmoud Khalil, which is becoming a cause célèbre for the White House in America, is founded in words, in a seldom applied act of parliament entitled the Alien Enemies Act. People maybe think that the fact this act bears an 18th century date shows that it is wildly out of touch with modern society. However, it’s worth bearing in mind that this 1798 statute will be measured in due course against America’s first amendment, which is a 1791 amendment to a 1789 constitution. They’re all in the same temporal ballpark.
People may also think that, because a statute has seldom been applied, it lacks pertinence. Unfortunately, the test of how apt application of a statute is lies not in the frequency with which it is applied, but in those things that can, according to folklore, do harm: its words.
The Mikado, an 1885 comic opera by W. S. Gilbert and Arthur Sullivan, contains a song with these lines: My object all sublime I shall achieve in time—To let the punishment fit the crime. To adhere to the meter, the singer repeats the last line: to let the punishment fit the crime. The song containing these lines is entitled A More Humane Mikado, and is sung, appropriately enough, by the Mikado himself. The Mikado is set in Japan, but it’s not about Japan. It is a satire on Britain, and Japan was used as the composers’ backdrop because it was, in 1885, a far-off land of which we knew little (words attributed to Neville Chamberlain in 1938 about Czechoslovakia). Nowadays, critics miss the point and accuse it of outrageous Victorian tropes peddled by a nation with nothing but disrespect for foreigners, which goes to show that words can cause a lot of hurt, even in song form.
The humane Mikado proposes punishments—to fit the crime, of course—such as being thrown into a vat of molten lead. While I don’t believe that that has ever been a form of punishment, in Japan or anywhere else, in terms of the pain inflicted, there are many punishments that have been on the correctional system’s menu, in times past as today, that would cause just as much, if not more hurt.
Exactly what punishment fits what crime is a question for debate. Would it not suffice for someone arraigned for stealing a thousand pounds to be punished by a fine of a thousand pounds? What about the eye-for-an-eye approach set down in the Bible’s book of Exodus? In this context, lawyers speak of the principle of proportionality. The demands in terms of eye-for-an-eye that those who commit murder should themselves lose their life run counter to two objections.
The first is the fact that courts get things wrong. Whilst the law sets down standards that the general public should adhere to lest they come to regret their wrongful actions at a later date, likewise the courts should operate by systems that also allow of reform of their own wrongful actions without regret. The possibility of reform is the solace that is extended to criminals by systems of justice that are civilised. Civilisation, in this sense, is that portion of the human psyche that goes beyond the mere necessities of life—shelter and food—to extend grace and forgiveness to one’s fellow man with the aim of building trust and reliance that will result, ultimately, in community. Civilisation turns a world inhabited by lonesome, wandering hunters into a world regulated by civic institutions, and the question now looming in the United States of America, as also elsewhere, is to what extent a civic institution can, by severing the bonds of reliance and trust that make it the people’s friend rather than the people’s ruler, turn back into being a lonesome, wandering hunter.
What the rule of law does in all of this is set forth the precepts upon which civil society is constituted. It should form the backstop against tendencies by the established civic institution to turn again to wandering huntsman. The rights set down in a bill of rights, and the guarantees encapsulated in a constitution are not built into these documents solely for the benefit of the individual, for all that may seem to be the case. It is similar to when I protect my children: yes, I protect them as individuals in their own right, but I also preserve my own protection, in them, for when I am old and defenceless. I protect them because they are my future and, by extension, they are the future of mankind.
Civilisation, as an amalgam of all the things that mankind assimilates into his communal existence with his fellow man, is the ultimate acquis of mankind. If we cannot hold to the basis of our civilisation, then we must rebuild it again from scratch. For, without it, we are but lonesome, wandering huntsmen. At once susceptible to attack from the wild beasts and our fellow man alike; and none is safe from our own shotgun, either.
Civilisation must furthermore set a standard of generosity of spirit that not only acts as an example to the people ruled by laws, but that mirrors the spirit of generosity that impelled us as human beings to even come together under a civilisation in the first place. And that entails not killing those who commit killings; which gives us to query our own senses of proportionality, to divine what we believe would be a proportionate punishment for any give crime, perchance by imagining ourselves as the culprit.
And so, it is an important question: is Mahmoud Khalil validly being deported by authority of the Alien Enemies Act 1798? The actual words of the statute aside for one moment and looking at the scope of the act as a whole: does his punishment fit his crime? More particularly, is his crime being deformed in order to fit his punishment? It’s a fundament of law that the legal subject must have fair notice of the acts that are prescribed and proscribed by its writ. If ignorance of the law excuses no one, then no one should be bound by a law that gets made up on the spot, for that is arbitrary law, and is the mark of a nation that has ceased to consider itself part of human civilisation.
If contract is a meeting of the minds, then a statute’s passage into law is also an example of that. Yet none such exists. Unanimity, if it exists, is a fiction. It is all the result of compromise and negotiation and, whilst these things are broadly accepted with a nod, they portend one thing in everything we do: imperfection. It is a constitutive element of the human condition. We vaunt compromise as if it was a paragon of our desires. But if it were, why didn’t we start the negotiation there?
In viewing a compromise as unanimity, there lies a danger: that we acquiesce in enacting rules and regulations to govern our conduct that are capable of such broad interpretation and movement as to constitute carte blanche for arbitrariness: one cannot legislate civilisation away. But you can use civilisation as a pretext to render it null and void in effect, and that is what Mr Rubio is doing in the case of Khalil. I’m certain that parliament intended no such thing when it passed the Alien Enemies Act 1798. And it is an intention to deploy that statute otherwise that America’s courts must now resist.
If they fail to do that, they may as well not exist. Civilisation will have broken down. In America at least. Because civilisation is ultimately dependent on the caring hand of the administration, and if the administration pays no regard to the bulwarks of civilisation, then civilisation will have become but a word. One whose absence can most definitely cause hurt, like any stick or stone.