Friday, September 11, 2009

Thursday, July 30, 2009

Children's Rights

Albie Sachs, arguably the world's most famous judge, was fleetingly in the UK last week, primarily to tell the story behind the judgment he made in South Africa not to send a woman to prison because it would infringe the human rights of her three children. Even by the standards of a judge responsible for some of the most progressive legal judgments, such as ruling that it is unconstitutional to limit marriage to a man and a woman, the case of S versus M, now being cited in courts worldwide, is remarkable. "Judges are the storytellers of the 21st century," says 74-year-old Sachs, who told an international audience of human rights lawyers in Edinburgh that the first mindset that needed to be changed in the now historic case was his own.

At first sight, he had intended to throw out an appeal on behalf of Mrs M, who was facing four years in jail for up to 40 counts of credit card fraud that she had committed while under a suspended sentence for similar offences. "I remember drafting an extremely dismissive response. I said: 'This doesn't raise a constitutional question. She simply wants to avoid going to jail. She doesn't make out a case, and her prospects of success are zero.' " It was a female colleague, another of the 11 green-robed judges in South Africa's constitutional court, who insisted that the case be heard. She argued that the human rights of the accused woman's children were not being looked at separately. "She said: 'There is something you are missing. What about the children? Mrs M has three teenage children. She lives in an area that we politely call fragile, an area of gangs, drug-peddling and a fair amount of violence. The indications are that she is a good mother, and the magistrate gave no attention to the children's interests.'

"The minute my colleague spoke to me about the importance of the three teenage children of Mrs M, I started to see them not as three small citizens who had the right to grow up into big citizens but as three threatened, worrying, precarious, conflicted young boys who had a claim on the court, a claim on our society as individuals, as children, and a claim not to be treated solely as extensions of the rights of the mother, but in their own terms." As a result, Sachs created a legal precedent in 2007: a woman who otherwise would have gone to jail did not have to, because of her children's rights. "We could have said the children's rights must be considered but sent Mrs M to jail anyway, perhaps for a lesser term. But that would not have changed anything."

At the time he was drafting the judgment, Sachs did not know of any country that took the rights of offenders' children into account, but he subsequently discovered that similar ideas were being framed in Scotland in a report by the then children's commissioner, Kathleen Marshall. "This was astonishing," Sachs told the audience. "In a totally different legal system, in a totally different society, a conclusion was being reached that is almost identical. It showed that the time has come for new ways of thinking."

Sachs says that South African courts are also taking a new approach to dealing with young offenders. "We use as much diversion as possible from the criminal justice system. We try to use the family and the community. We try to find ways of helping them to live together in the same neighbourhood, and we use apology and reparation and reconnection, rather than institutionalising and isolating the offender from the community and placing the offender with other offenders in a youth culture of marginalisation and anger. Offenders are encouraged to see themselves as part of the community."


The following article is excerpted from The Eight-Circuit Brain: Navigational Strategies for the Energetic Body, forthcoming from Vertical Pool Publishing in October, 2009.

Unchecked, repressed, and overwhelming guilt may be the greatest impediment to genuine relating. Guilt inhibits the flow of spontaneity that actual relating demands. Guilt binds consciousness to the past while corrupting our capacity to be fully present with another person. Guilt distorts our personality with excessive self-consciousness that embarrasses us and leaves us feeling socially inept. Left unattended, guilt doesn't go away but turns into resentment and finally, a toxic emotional sludge. Guilt sucks. Guilt sucks the life force right out of your body.

As long as we suffer from a guilty conscience, we cannot truly relate openly and directly. Before social intelligence can be increased, guilt must be dealt with. If we think we don't feel or have any guilt we may have effectively repressed it and if so, an unconscious guilt complex may be pulling our strings. Some of us manage to escape guilt through the toxic magick of the psychopath. Others temporarily alleviate their guilt by pretending it's not there. What is guilt? Guilt expresses a negative emotional reaction to betraying someone's moral or ethical code that we have been conditioned to care about.

Morality and ethics: two terms commonly confused to mean the same thing. I understand morality as any code of conduct inherited from society, family, and church/religion that defines, sometimes in black and white terms, what exactly constitutes bad behavior and good behavior, a good person and an bad or evil person. Each of us was raised and conditioned by the morality of those who acted as our parents. Whether they were genetically related or authority figures in foster homes, the church, state prison, the orphanage, military school, etc., these moralities share a common reward and punishment system. Violate the code and you are punished by feeling like a no-good person ie. you eat moral guilt. Conform to the code and you are rewarded by feeling good ie. you eat moral pride.

Ethics, as I use this term, express an internal code of conduct developed by making a series of tough decisions based on our personal assessment and judgment in determining the right course of action. When I say "right course of action," I mean according to the individual making the decisions. As these tough decisions continue being made, a personal ethos eventually consolidates and forms the bedrock of our conscience. When we learn to abide by this code, our conscience becomes a guiding principle in our lives. The degree to which we do not define and live by our own ethical codes is the degree to which the guilt complexes inherited from external moralities continue their grip on our psyches. To your own conscience be true or continue regurgitating the moralities of society, family, and church. Developing a real conscience is obviously not for everybody. Not everybody is ready to take a stand and speak their truth, regardless of whether or not it finds agreement with the consensus.

I see two basic types of guilt: spontaneous and mechanical. Spontaneous guilt stems from violating your own ethical code; mechanical guilt stems from violating family, societal and religious morality. Both guilts can feel similar with the exception of one significant difference. Spontaneous guilt happens before you violate your code, while mechanical guilt happens during or after an external code is violated. See for yourself. The next time you feel the onset of guilt, ask yourself if it's happening before the intended act or behavior, or during and/or after it. When the feeling of guilt arrives before taking action, you know you're about to do something that you personally disapprove of. The warning signal of spontaneous guilt also means you have not been punished yet. When the guilt happens during and/or after the act, it is too late; there was no warning. You have been punished.

If you proceed to violate your own code of ethics, you will probably feel remorse and regret for betraying yourself. If you violate an externally-imposed moral code, you will probably feel the automatic oppression of a punishing guilt. Mechanical guilt comes from violating a code that you did not create yourself and that was manufactured by external sources. Mechanical guilt can be traced back to family, societal and religious morals that we passively and unconsciously absorbed without ever questioning whether they were actually true for us or not.

We all undergo similar kinds of conditioning as children until we succumb to its machinations or rebel. Yet it may not be enough to just rebel if we do not replace the old robotic morality with a freshly minted code we can live by. Defining your own ethical code constitutes a creative act. This is why betraying your own code produces spontaneous guilt and not the mechanical guilt resulting from violating an externally-imposed, pre-fab morality assimilated long ago that you may no longer believe in, or never believed in the first place.

Family guilt keeps the kids in line and close to home with the ties that bind. Some of us suffer more family guilt than others. These are the late-bloomers in life whose burden of excessive family guilt complexes require more time to sort things out and differentiate themselves from the matrix of clan identity. For some, these ancestral moral traditions serve them well and there is no need to change anything. For others seeking liberation from the ties that bind, the way out is through the gauntlet of defining your own code of ethics and demonstrating the audacity to live by it. As we define and live by our own ethics, we step outside the boundaries of consensus morality and risk social banishment with labels such as "criminal," "artist," "hooligan," and "misfit." Those who continue fighting and rebelling against the established dominator moral culture risk persecution and scapegoating by the enforcers of herd morality.

Fighting against "the man" or "the machine" proves as futile as a fruit fly caught in the web of a giant spider; whatever we fight against absorbs us. Those who wake up and wise up to a more progressive revolt have discovered what is actually worth fighting for. Whatever is worth fighting for defines the good fight. When we know what is worth fighting for, there is no point in wasting our time and energy fighting against anything or anybody. As for me, the good fight amounts to fighting for consciousness itself and its unfettered expansion. As consciousness expands, we perceive more reality. As we see more, we are better informed about what we actually care about and what we honestly don't care for (trying to care about everything ends up caring about nothing). Unfettered expansion of consciousness evolves into conscience, a code that guides us according to our vision, not the unconscious dictates of inherited moral considerations.