Thought Crimes and Other Themes in Commonwealth Literature.

MY TITLE--"Thought Crimes and Other Themes in Commonwealth Literature"--has an ominous sound, as if (to echo George Orwell again) our only hope in the era of climate change is to keep the aspidistra flying for a bit longer. Let me put such fears to rest immediately by declaring that I have a more constructive end in view. I will argue that some recent works of fiction by Commonwealth writers contain insights that not only illuminate our understanding of human rights and responsibilities but also enhance our capacity to speak of such matters.

I hasten to add that I am holding forth not as a literary critic but as a writer and practising lawyer. This will explain my wish to speak in general terms, without risking entanglement in "deconstruction" or any other postmodern infestations. The contemporary critic complains about ambiguity, but rather than slicing through the verbal undergrowth with crisp, incisive sentences, the complainant seeds the prickle patch with "tropes" and "signifiers" and other forms of "discourse" until ambiguities are legion. Constraints of time prevent me from saying more about this kind of ambush. For the same reason, I will refer to a few books only.

The Commonwealth is an association of fifty-three independent states working together for their citizens in the interests of development, democracy and peace. The Harare Declaration of 1991 asserts that the special strength of the Commonwealth is to be found in the diversity of its membership and a shared inheritance of language and the rule of law. Freedom of speech including the right to hold opinions without interference is thought to be essential for the maintenance of strong and efficient governments throughout the Commonwealth, subject to respecting the reputations of others and laws for the protection of national security, public health or morals.

These values have been woven into the fabric of the common law over many centuries and form part of the Westminster system from which governmental habits in the Commonwealth are principally derived. Their continuance depends upon an underlying respect for the rule of law, and that in turn depends not only upon the words used in a statute but also upon an awareness of the way things work in practice. "Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties," declared John Milton in a time of upheaval. This appeal to fundamental rights by a famous poet draws me back to literature and my present purpose.

Literary works hold a mirror up to society. From the plays of Shakespeare to the novels of Charles Dickens, literary works have had a way of illuminating the mysteries of the legal system and the values that underlie it. This brings me to a matter that bears upon my theme; that is, the question of whether the thoughts of a suspect or an accused person can be used to establish guilt.

The rules of evidence in most Commonwealth countries assume that the intention with which a criminal act was done can be proved as a matter of fact. A man's intention can be inferred from what he said or did at the time the act was done. Moreover, if an accused person should seek to cover up his actions by telling lies after the deed, these lies can be used against him.

The author of a leading text on evidence once contended that the struggle of a victim for his life may leave upon the perpetrator the indelible traces of blood, or wounds or rent clothing, which point back to the deed as done by him. But a deed may also leave traces upon the doer through a psychological process. Thus, in certain circumstances a lie can constitute an admission against interest by an accused person if the court is satisfied that the only explanation for the lie is that he knew the truth would implicate him in the offence.