Spooky Stuff
[Pre-Day 7—Day 10]
My Lords,
Murder is widely thought to be the gravest of crimes. One could expect a developed system to embody a law of murder clear enough to yield an unequivocal result on a given set of facts, a result which conforms with apparent justice and has a sound intellectual base. This is not so in England, where the law of homicide is permeated by anomaly, fiction, misnomer, and obsolete reasoning. One conspicuous anomaly is the rule which identifies the ‘malice aforethought’ (a doubly misleading expression) required for the crime of murder not only with a conscious intention to kill but also with an intention to cause grievous bodily harm. It is, therefore, possible to commit a murder not only without wishing the death of the victim but without the least thought that this might be the result of the assault. Many would doubt the justice of this rule, which is not the popular conception of murder and (as I shall suggest) no longer rests on any intellectual foundation. The law of Scotland does very well without it, and England could perhaps do the same. It would, however, be fruitless to debate this here, since the rule has been established beyond doubt by R. v. Cunningham [1982] A.C. 566. This rule, which I will call the ‘grievous harm’ rule, is the starting point of the present appeal. –Opinions of the Lords in Appeal for Judgment in the Cause: Attorney-General’s Reference №3 of 1994
Fatima’s Story
1
It began, as such things so typically do, with decolonisation.
The end of the Fourth French Republic came in 1958, due to the perceived failings of the parliamentary system and ongoing mismanagement of the civil war (France’s position) or independence war (the position of the groups native to the area in question) in Algeria. After the newly-installed Prime Minister of France, Pierre Pfimlin, implied that he would try to negotiate with Algerian nationalists, the French generals in Algeria refused to recognise his Government. They took control of Algiers and threatened to conduct a parachute assault on Corsica and Metropolitan France unless retired General Charles de Gaulle was placed in charge of the country.
René Coty, the President at the time, was in no position to point out that this was not how parliamentary democracy worked, chiefly because the anthropologist, technocrat, and all-around public intellectual Jacques Soustelle was by now essentially holding Paris hostage with a ragtag army of common men, dissident military officers, conservative thinkers (such as himself), and quasi-retired colonial officials. De Gaulle indicated that he would be willing to assume emergency powers, laughing off fears that he would dismantle civil liberties by saying ‘Have I ever done that? Quite the opposite, I have re-established them when they had disappeared. Who honestly believes that, at age sixty-seven, I would start a career as a dictator?’
The people in Algeria took Corsica in a bloodless military action, de Gaulle orchestrated a referendum on changing France’s system of government from parliamentary to semi-presidential, and the Fifth Republic was born. All French colonies (Algeria was considered a département, not a colony) were given a choice between immediate independence and accepting the new Constitution. All colonies except Guinea chose to remain affiliated with the Fifth Republic. They gained independence two years later in a different circumstance.
Djibouti at this time was the Territory of Afars and Issas and held the somewhat vaguely-defined status of ‘Territoire français d’outre-mer’. This meant that France could do pretty much whatever it liked with the area, including instituting a citizenship law that favoured Afars for unclear reasons (this was in large part why the Issas were so keen to seize as much power for themselves as they possibly could after independence). Even after de Gaulle changed policy on Algeria and granted its independence in 1962, France kept a death-grip on this tiny part of Africa because of its strategic location on major shipping routes. It took another fifteen years for the French to quit Afars and Issas.
