Havel III

XVII

In the "dissident" movements of the Soviet bloc, the defense of human beings usually takes the form of a defense of human and civil rights as they are entrenched in various official documents such as the Universal Declaration of Human Ríghts, the International Covenants on Human Rights, the Concluding Act of the Helsinki Agreement, and the constitutions of individual states. These movements set out to defend anyone who is being prosecuted for acting in the spirit of those rights, and they in turn act in the same spirit in their work, by insisting over and over again that the regime rec ognize and respect human and civil rights, and by drawing attention to the areas of life where this is not the case.

Their work, therefore, is based on the principle of legality: they operate publicly and openly, insisting not only that their activity is in line with the law, but that achieving respect for the law is one of their main aims. This principle of legality, which provides both the point of departure and the framework for their activities, is common to all "dissident" groups in the Soviet bloc, even though individual groups have never worked out any formal agreement on that point. This circumstance raises an important question: Why, in conditions where a widespread and arbitrary abuse of power is the rule, is there such a general and spontaneous acceptance of the principle of legality?

On the primary level, this stress on legality is a natural expression of specific conditions that exist in the posa totalitarian system, and the consequence of an elementary understanding of that specificity. If there are in essence only two ways to struggle for a free society-that is, through legal means and through (armed or unarmed) revolt-then it should be obvious at once how inappropriate the latter alternative is in the post-totalitarian system. Revolt is appropriate when conditions are clearly and openly in motion, during a war, for example, or in situations where social or political conflicts are coming to a head. It is appropriate in a classical dictatorship that is eitherjust setting itself up or is in a state of collapse. In other words, it is appropriate where social forces of comparable strength (for example, a government of occupation versus a nation fighting for its freedom) are confronting each other on the level of actual power, or where there is a clear distinction between the usurpers of power and the subjugated population, or when society finds itself in a state of open crisis. Conditions in the post-totalitarian system-except in extremely explosive situations like the one in Hungary in iggó-are, of course, precisely the opposite. They are static and stable, and social crises, for the most part, exist only latently (though they run much deeper). Society is not sharply polarized on the level of actual political power, but, as we have seen, the fundamental lines of conflict run right through each person. In this situation, no attempt at revolt could ever hope to set up even a minimum of resonance in the rest of society, because that society is soporific, submerged in a consumer rat race and wholly involved in the post-totalitarian system (that is, participating in it and acting as agents of its automatism), and it would simply find anything like revolt unacceptable. It would interpret the revolt as an attack upon itself and, rather than supporting the revolt, it would very probably react by intensifying its bias toward the system, since, in its view, the system can at least guarantee a certain quasi-legality. Add to this the fact that the post-totalitarian system has at its disposal a complex mechanism of direct and indirect surveillance that has no equal in history and it is clear that not only would any attempt to revolt come to a dead end politically, but it would also be almost technically impossible to carry off. Most probably it would be liquidated before it had a chance to translate its intentions into action. Even if revolt were possible, however, it would remain the solitary gesture of a few isolated individuals and they would be opposed not only by a gigantic apparatus of national (and supranational) power, but also by the very society in whose name they were mounting their revolt in the first place. (This, by the way, is another reason why the regime and its propaganda have been ascribing terroristic aims to the "dissident" movements and accusing them of illegal and conspiratorial methods.)

All of this, however, is not the main reason why the "dissident" movements support the principle of legality. That reason lies deeper, in the innermost structure of the "dissident" attitude. This attitude is and must be fundamentally hostile toward the notion of violent change-simply because it places its faith in violence. (Generally, the "dissident" attitude can only accept violence as a necessary evil in extreme situations, when direct violence can only be met by violence and where remaining passive would in effect mean supporting violence: let us recall, for example, that the blindness of European pacifism was one of the factors that prepared the ground for.che Second World War.) As I have already mentioned, "dissidents" tend to be skeptical about political thought based on the faith that profound social changes can only be achieved by bringing about (regardless of the method) changes in the system or in the government, and the belief that such changes-because they are considered "fundamental" justify the sacrifice of "less fundamental" things, in other words, human lives. Respect for a theoretical concept here outweighs respect for human life. Yet this is precisely what threatens to enslave humanity all over again.

"Dissident" movements, as I have tried to indicate, share exactly the opposite view. They understand systemic change as something superficial, something secondary, something that in itself can guarantee nothing. Thus an attitude that turns away from abstract political visions of the future toward concrete human beings and ways of defending them effectively in the here and now is quite naturally accompanied by an intensified antipathy to all forms of violence carried out in the name of a better future, and by a profound belief that a future secured by violence might actually be worse than what exists now; in other words, the future would be fatally stigmatized by the very means used to secure it. At the same time, this attitude is not to be mistaken for political conser vatism or political moderation.. The "dissident" movements do not shy away from the idea of violent political overthrow because the idea seems too radical, but on the contrary, because it does not seem radical enough. For them, the problem lies far too deep to be settled through mere systemic changes, either governmental or technological. Some people, faithful to the classical Marxist doctrines of the nineteenth century, understand our system as the hegemony of an exploiting class over an exploited class and, operating from the postulate that exploiters never surrender their power voluntarily, they see the only solution in a revolution to sweep away the exploitersNaturally, they regard such things as the struggle for human rights as something hopelessly legalistic, illusory, opportunistic, and ultimately misleading because it makes the doubtful assumption that you can negotiate in good faith with your exploiters on the basis of a false legality. The problem is that they are unable to find anyone determined enough to carry out this revolution, with the result that they become bitter, skeptical, passive, and ultimately apathetic-in other words, they end up precisely where the system wants them to be. This is one example of how far one can be misled by mechanically applying, in post-totalitarian circumstances, ideological models from another world and another time.

Of course, one need not be an advocate of violent revolution to ask whether an appeal to legality makes any sense at all when the laws-and particularly the general laws concerning human rights-are no more than a facade, an aspect of the world of appearances, a mere game behind which lies total manipulation. "They can ratify anything because they will still go ahead and do whatever they want anyway"-this is an opinion we often encounter. Is it not true that constantly to take them at their word, to appeal to laws every child knows are binding only as long as the government wishes, is in the end just a kind of hypocrisy, a Švejkian obstructionism and, finally, just another way of playing the game, another form of self-delusion? In other words, is the legalistic approach at all compatible with the principle of living within the truth?

This question can only be answered by first looking at the wider implications of how the legal code functions in the post-totalitarian system.

In a classical dictatorship, to a far greater extent than in the post-totalitarian system, the will of the ruler is carried out directly, in an unregulated fashion. A dictatorship has no reason to hide its foundations, nor to conceal the real workings of power, and therefore it need not encumber itself to any great extent with a legal code. The posetotalitarian system, on the other hand, is utterly obsessed with the need to bind everything in a single order: life in such a state is thoroughly permeated by a dense network of regulations, proclamations, directives, norms, orders, and rules. (It is not called a bureaucratic system without good reason.) A large proportion of those norms function as direct instruments of the complex manipulation of life that is intrinsic to the post-totalitarian system. Individuals are reduced to little more than tiny cogs in an enormous mechanism and their significance is limited to their function in this mechanism. Their job, housing accommodation, movements, social and cultural expressions, everything, in short, must be cosseted together as firmly as possible, predetermined, regulated, and controlled. Every aberration from the prescribed course of life is treated as error, license, and anarchy. From the cook in the restaurant who, without hard-to-get permission from the bureaucratic apparatus, cannot cook something special for his customers, to the singer who cannot perform his new song at a concert without bureaucratic approval, everyone, in all aspects of their life, is caught in this regulatory tangle of red tape, the inevitable product of the post-totalitarian system. With ever-increasing consistency, it binds all the expressions and aims of life to the spirit of its own aims: the vested interests of its own smooth, automatic operation.

In a narrower sense the legal code serves the posttotalitarian system in this direct way as well, that is, it too forms a part of the world of regulations and prohibitions. At the same time, however, it performs the same service in another indirect way, one that brings it remarkably closer-depending on which level of the law is involved-to ideology and in some cases makes it a direct component of that ideology.

1. Like ideology, the legal code functions as an excuse. It wraps the base exercise of power in the noble apparel of the letter of the law; it creates the pleasing illusion thatjustice is done, society protected, and the exercise of power objectively regulated. All this is done to conceal the real essence of posttotalitarian legal practice: the total manipulation of society. If an outside observer who knew nothing at all about life in Gzechoslovakia were to study only its laws, he would be utterly incapable of understanding what we were complaining about. The hidden political manipulation of the courts and of public prosecutors, the limitations placed on lawyers' ability to defend their clients, the closed nature, de facto, of trials, the arbitrary actions of the security forces, their position of authority over the judiciary, the absurdly broad application of several deliberately vague sections of that code, and of course the state's utter disregard for the positive sections of that code (the rights of citizens): all of this would remain hidden from our outside observer. The only thing he would take away would be the impression that our legal code is not much worse than the legal code of other civilized countries, and not much different either, except perhaps for certain curiosities, such as the entrenchment in the constitution of a single political party's eternal rule and the state's love for a neighboring superpower.

But that is not all: if our observer had the opportunity to study the formal side of the policing andjudicial procedures and practices, how they look "on paper," he would discover that for the most part the common rules of criminal procedure are observed: charges are laid within the prescribed period following arrest, and it is the same with detention orders. Indictments are properly delivered, the accused has a lawyer, and so on. In other words, everyone has an excuse: they have all observed the law. In reality, however, they have cruelly and pointlessly ruined a young person's life, perhaps for no other reason than because he made sa~nizdat copies of a novel written by a banned writer, or because the police deliberately falsified their testimony (as everyone knows, from the judge on down to the defendant). Yet all of this somehow remains in the background. The falsified testimony is not necessarily obvious from the trial documents and the section of the Criminal Code dealing with incitement does not formally exclude the application of that charge to the copying of a banned novel. In other words, the legal code-at least in several areas-is no more than a facade, an aspect of the world of appearances. Then why is it there at all? For exactly the same reason as ideology is there: it provides a bridge of excuses between the system and individuals, making it easier for them to enter the power structure and serve the arbitrary demands of power. The excuse lets individuals fool themselves into thinking they are merely upholding the law and protecting society from criminals. (Without this excuse, how much more difficult it would be to recruit new generations ofjudges, prosecutors, and interrogators!) As an aspect of the world of appearances, however, the legal code deceives not only the conscience of prosecutors, it deceives the public, it deceives foreign observers, and it even deceives history itself.

s. Like ideology, the legal code is an essential instrument of ritual communication outside the power structure. It is the legal code that gives the exercise of power a form, a framework, a set of rules. It is the legal code that enables all components of the system to communicate, to put themselves in a good light, to establish their own legitimacy. It provides their whole game with its rules and engineers with their technology. Can the exercise of post-totalitarian power be imagined at all without this universal ritual making it all possible, serving as a common language to bind the relevant sectors of the power structure together? The more important the position occupied by the repressive apparatus in the power structure, the more important that it function according to some kind of formal code. How, otherwise, could people be so easily and inconspicuously locked up for copying banned books if there were no judges, prosecutors, interrogators, defense lawyers, court stenographers, and thick files, and if all this were not held together by some firm order? And above all, without that innocent-looking Section roo on incitement? This could all be done, of course, without a legal code and its accessories, but only in some ephemeral dictatorship run by a Ugandan bandit, not in a system that embraces such a huge portion of civilized humankind and represents an integral, stable, and respected part of the modern world. That would not only be unthinkable, it would quite simply be technically impossible. Without the legal code functioning as a ritually cohesive force, the post-totalitarian system could not exist.

The entire role of ritual, facades, and excuses appears most eloquenfly, of course, not in the proscriptive section of the legal code, which sets out what a citizen may not do and what the grounds for prosecution are, but in the section declaring what he may do and what his or her rights are. Here there is truly nothing but "words, words, words." Yet even that part of the code is of immense importance to the system, for it is here that the system establishes its legitimacy as a whole, before its own citizens, before schoolchildren, before the international public, and before history. The system cannot afford to disregard this because it cannot permit itself to cast doubt upon the fundamental postulates of its ideology, which are so essential to its very existence. (We have already seen how the power structure is enslaved by its own ideology and its ideological prestige.) To do this would be to deny everything it tries to present itself as and, thus, one of the main pillars on which the,system rests would be undermined: the integrity of the world of appearances.

If the exercise of power circulates through the whole power structure as blood flows through veins, then the legal code can be understood as something that reinforces the walls of those veins. Without it, the blood of power could not circulate in an organized way and the body of society would hemorrhage at random. Order would collapse.

A persistent and never-ending appeal to the laws-not just to the laws concerning human rights, but to all laws-does not mean at all that those who do so have succumbed to the illusion that in our system the law is anything other than what it is. They are well aware of the role it plays. But precisely because they know how desperately the system depends on it-on the "noble" version of the law, that is-they also know how enormously significant such appeals are. Because the system cannot do without the law, because it is hopelessly tied down by the necessity of pretending the laws are observed, it is compelled to react in some way to such appeals. Demanding that the laws be upheld is thus an act of living within the truth that threatens the whole mendacious structure at its point of maximum mendacity. Over and over again, such appeals make the purely ritualistic nature of the law clear to society and to those who inhabit its power structures. They draw attention to its real material substance and thus, indirectly, compel all those who take refuge behind the law to affirm and make credible this agency of excuses, this means of communication, this reinforcement of the social arteries outside of which their will could not be made to circulate through society. They are compelled to do so for the sake of their own consciences, for the impression they make on oue siders, to maintain themselves in power (as part of the system's own mechanism of self-preservation and its principles of cohesion), or simply out of fear that they will be reproached for being clumsy in handling Ihe ritual. They have no other choice: because they cannot discard the rules of their own game, they can only attend more carefully to those rules. Not to react to challenges means to undermine their own excuse and lose control of their mutual communications system. To assume that the laws are a mere facade, that they have no validity, and that therefore it is pointless to appeal to them would mean to go on reinforcing those aspects of the law that create the facade and the ritual. It would mean confirming the law as an aspect of the world of appearances and enabling those who exploit it to rest easy with the cheapest (and therefore the most mendacious) form of their excuse.

I have frequently witnessed policemen, prosecutors, or judges-if they were dealing with an experienced Chartist or a courageous lawyer, and if they were exposed to public attention (as individuals with a name, no longer protected by the anonymity of the apparatus)-suddenly and anxiously begin to take particular care that no cracks appear in the ritual. This does not alter the fact that a despotic power is hiding behind that ritual, but the very existence of the officials' anxiety necessarily regulates, limits, and slows down the operation of that despotism.

This, of course, is not enough. But an essential part of the "dissident" attitude is that it comes out of the reality of the human here and now. It places more importance on often repeated and consistent concrete action-even though it may be inadequate and though it may ease only insignificantly the suffering of a single insignificant citizen-than it does in some abstract fundamental solution in an uncertain future. In any case, is not this in factjust another form of "small-scale work" in the Masarykian sense, with which the "dissident" attitude seemed at first to be in such sharp contradiction?

This section would be incomplete without stressing certain internal limitations to the policy of taking them at their own word. The point is this: even in the most ideal of cases, the law is only one of several imperfect and more or less external ways of defending what is better in life against what is worse. By itself, the law can never create anything better. Its purpose is to render a service and its meaning does not lie in the law itself. Establishing respect for the law does not automatically ensure a better life for that, after all, is ajob for people and not for laws and institutions. It is possible to imagine a society with good laws that are fully respected but in which it is impossible to live. Conversely, one can imagine life being quite bearable even where the laws are imperfect and imperfectly applied. The most important thing is always the quality of that life and whether or not the laws enhance life or repress it, not merely whether they are upheld or not. (Often strict observance of the law could have a disastrous impact on human dignity.) The key to a humane, dignified, rich, and happy life does not lie either in the constitution or in the Criminal Code. These merely establish what may or may not be done and, thus, they can make life easier or more difficult. They limit or permit, they punish, tolerate, or defend, but they can never give life substance or meaning. The struggle for what is called "legality" must constantly keep this legality in perspective against the background of life as it really is. Without keeping oné s eyes open to the real dimensions of life's beauty and misery, and without a moral relationship to life, this struggle will sooner or later come to grief on the rocks of some selfjustifying system of scholastics. Without really wanting to, one would thus become more and more like the observer who comes to conclusions about our system only on the basis of trial documents and is satisfied if all the appropriate regulations have been observed.

XVIII