Preface to the First Edition
This book began with a simple question raised by a student in my jurisprudence class: What is a political trial? My response was the generally accepted standard answer, that political trials are attempts by regimes to control opponents by using legal procedure for political ends.
It was based on a book for which I have immense respect, Otto Kirchheimer’s Political Justice. But my response satisfied neither me nor my students. With the trials of the Chicago Eight, the Boston Five, the Catonsville Nine, and Dennis Banks and Russell Means fresh in our minds, and after having had Leonard Weinglass, William Kunstler, Russell Means, and later Fr. Daniel Berrigan on campus as guest lecturers, the standard response to the question seemed vastly oversimplified. More questions about law and politics are raised by certain trials than we can encompass by saying that they involve the attempt of those with power to swat their opponents.In subsequent semesters of the jurisprudence class I invited my students to explore the problems raised in political trials by considering, along with the theories of law of H. L. A. Hart and Ronald Dworkin, such issues as are contained in Aeschylus’ Oresteia, the trials of Socrates, Jesus, John Lilburne, and the Nuremberg defendants, Robert Bolt’s play A Man for All Seasons, and Samuel Butler’s satire of a trial in Erewhon. In each instance we asked ourselves: Is this a political trial? What is the difference between what is properly law and what is properly politics? What can the courts do when faced with a case which questions the legitimacy of the law itself? Is the fundamental difficulty that law and politics operate according to diametrically opposite premises: power is its own authority in politics, but the rule of law is legitimate only when might does not make right? Can the law be something more than an instrument of those who hold power whether direct power, hidden economic power, or subtle social influence? Finally, can we have political trials within the rule of law?
I wish I could recall who in my class asked the question in the first place.
I would tell that student, now probably a decade after graduation, that I have a better response: Chapter 1 of this book, with the other nine chapters as elaboration. The law’s delay is nothing compared to the academy’s.In addition to my students who ask questions, I must thank those teachers of mine, such as Howard Lutz, Karl Meyer, Arthur L. Peterson, and Mulford Q. Sibley, who encouraged questions from students. “Certain questions are put to human beings,” Leo Tolstoy has taught us, “not so much that they should answer them but that they should spend their lives wrestling with them.”
I am fortunate to be teaching at a college which is a community of good will. Cheerful colleagues have provided an informal and running conversation about the questions raised by political trials. They include Howard Cohrt, William Dean, Richard Elvee, Tom Emmert, Robert Esbjornson, Marleen Flory, Will Freiert, Michael Haeuser, Norma Hervey, Douglas Huff, Conrad Hyers, Byron Nordstrom, Garrett Paul, David Wicklund, and especially Don Ostrom. Charles Walcott was a dependable driver and listener. I was given time and assistance to work on the project by a leave from Gustavus Adolphus College and a National Endowment for the Humanities Fellowship for College Teachers. The first version of this project was presented at the 1982 meeting of the Academy of Criminal Justice Sciences in Louisville, Kentucky, and received the Anderson Outstanding Paper Award. Versions of chapters 4 and 9 were presented at the 1983 ACJS meeting in San Antonio, Texas. I appreciate the comments of the critics, especially Otis Stephens and Philip Rhoades. I am grateful to several people for their dedicated service in editorial, typing and detail work: Dalia Buzin, Lisa Bushmann, Janine Genelin, Janice Handler, Diane Jensen, Joyce Johnson, Omo Kariko, Joan Kennedy, Julie Lloyd, Nancy Pautz, and especially Saralyn Kriesel. Melody Decker and the staff of the Clerk’s Office in the Federal District Court in St. Paul were helpful and patient while I spent a month in their office reading the Wounded Knee transcript.
I am particularly indebted to Ralston Deffenbaugh, Jr., now director of the Office on World Community of the Lutheran World Ministries, who was an observer for the Lutheran World Federation at the SWAPO trial of Aaron Mushimba and others in Namibia. Chapter 3 is his. I wrote it entirely from his materials and notes. In some places I simply used his words. Ralie, in addition to being co-author of chapter 3, provided encouragement for the project from the start.
My loyal critic throughout has been my wife, Kathryn, from whom I have learned many things including much about writing. Finally, I value having had the opportunity to work with an editor of the stature of Irving Louis Horowitz.
Ron Christenson