From top: Anti covid mandate protest in Vienna, Austria on Saturday; David Langwallner

“After all it’s not that awful. You know what the fellow said – in Italy, for 30 years under the Borgias, they had warfare, terror, murder and bloodshed, but they produced Michelangelo, Leonardo da Vinci and the Renaissance. In Switzerland, they had brotherly love, they had 500 years of democracy and peace – and what did that produce? The cuckoo clock.”

Orson Welles in ‘The Third Man’ (1949).

Well, the Swiss are not the Austrians or Germans, but a similar gene pool and the focus of the world is now on that area of the planet.

Article 5 of The German Constitution and Article 13, unlucky for some, of the Austrian Constitution, protect in bland and qualified terms and, within the law in the Austrian case, Freedom of Speech.

Perhaps more pertinently in a qualified way, the Europan Convention of Human Rights through the jurisprudence of the European Court of Human Rights was, at least historically, very protective, in a bright line way of the right to offend, shock and disturb, and the Americans have gone even further protecting even hate speech of there is not an imminent danger of lawless action.

All international constitutions, in fact, protect the satellite off-shoots of speech, protest, demonstrations, et al.

Now the people of Austria and Germany, with a bizarre double resignation leading to a new former army chancellor and minister for the interior, have until February, at the outer limits, to exercise, by speech and protest, acts to stop compulsory vaccination and a form of vaccine segregation in a world of deep scepticism of endless state compulsion over them and everybody else of their integrity, their choice, their travel. Their human identity, in fact, and if the Austrian precedent or German precedent is upheld, then a slippery slope.

Replication for all the world which surely seems to be an EU agenda. TINA to TINC. There is no alternative if there is no choice. A kind of, to coin a phrase, total spectrum dominance.

Dark atavistic forces in the authoritarian Germanic mindset have been reactivated but at least the Austrians are protesting.

So, let us remind ourselves of the source of Catch 22 (1961) by Joseph Heller, a crucial text for our time.

Now the premise is simple and that is that a service member during the second world war refuses to go on a flying mission, or indeed any other mission, with the certain prospect of death, as to do so would be insane unless, of course, you were a Japanese Kamikaze pilot.

Thus, the indication he would not want to do so is an exercise in rationality. The Catch 22 demonstrates his rationality and not insanity and thus he is trapped. Or an impossible universe creates the problem.

The book is populated by the sociopathy of generals, military officials, and the lunatic fringe, now the world leadership, trying to resolve or rather promote catch twenty-two. Well, where we are now with equally mad leaders. Above all corporate monsters.

So, stimulating the economy which is necessary, unless social distancing is strictly observed, which is not possible will be a disaster and what will follow with successive waves of the infection and mutant versions of the same resistant to vaccination of dubious utility and effectiveness.

The larger Catch 22 is that as depression looms, or is here, we must work but by working, unless privileged to do so, exclusively from the comfort of homes or sealed offices we are all part of Catch 22. That is those parts of the service and public service industry must work or the social structure and economy will collapse, and resources are dwindling, and we will not be bailed out.

That is, we the people, do work, we risk self-immolation with the dangers of various infections and the non-immunity of vaccines that are clearly non-protecting.

And it is small and little businesses that are stuffed by the golden turkeys of our universe. And those most likely to die. Social atomization and distancing also break down community and speech rights, another catch 22.

And Priti Patel, in the UK, wishes to curtail protest on the subjective assessment of a police officer.

John Gray, in evolutionary descriptive not evaluative terms, has spoken and written about a form of Malthusian population cull. Coronavirus achieves that in increments, as may austerity, depression, et al. This is a turning point, not for the good, in human affairs. Our virtual reality but very real economic and Malthusian Shoah. An ecocide of spaces and choice. Enter the zone or seclude yourself from the zone or stop-start. Work remotely, if you can, and occasionally in person and hope to survive.

Consider the percentages in Russian roulette land.

Or better still, protest to survive and secure your rights against the Leviathan and or regain gain a measure of choice.

The central hallmark of a democracy is freedom of speech. There is of course a defined link between speech and the upholding of democratic values and indeed their decline.

The late great Dworkin argues in a distant liberal egalitarian way that free speech is a condition of legitimate government. Stephen Sedley, a great English judge, called it the lifeblood of a democracy. It also opens government to intense scrutiny and indeed private powers. It is said from Locke onwards that it encourages diversity and tolerance.

Dworkin also emphasised the universality of speech and speech as a mode of rational discourse and scientific inquiry, speech as an empiricist scientific counterweight to hysteria or ,as another American theorist, Lewis called it, a search engine for the truth.

And of course, related to speech are the rights of protest and civil disobedience, now also crucially important an in our increasingly controlled and technocratic age. True, fearless, independent criticism is being expurgated from the culture. All of this is being augmented by the control of the press by vested corporate interests and the equally nefarious desperate search for balanced coverage, a non-descriptive comment which, in practice, means giving weight to utter nonsense.

Which undermines the legitimacy of speech or characterising all protesters as extremists left, or right. So, few now comply with the dictum of Walter Lippmann that there is no higher law in journalism than to speak the truth and shame the devil?

Habermas, the greatest living German intellectual at least, derived from Bentham’s speech acts, develops the crucial idea of ideal speech or communicative action which is, in effect, that speech, to be proper and non-ideological or tainted, should take place in ideal circumstances.

He also suggests that such shared speech in a replay of the enlightenment salon will provide optimum technical outcomes that are also morally purposeful.

And Habermas also argued for, the vital importance of civil disobedience in vitalising a democracy, but what Orwell called doublespeak and disinformation, it is everywhere in Covid times.

But to anticipate an objection, the ECHR and other international instruments restrict speech for public health and morals or order public, dangerous concepts often manipulated by state authoritarianism.

Well, as the Stephan Sedley remarked, freedom to speak inoffensively is not worth having and Dworkin argued, towards the end of his distinguished career, for the right to ridicule.

The question of civil disobedience has a long history. One of the first civil disobedients was Antigone who disobeyed against the will of the autocratic King Creon in Sophocles play in 430BC, invoking a distinction between positive law and the law of God.

The right to civil disobedience if that is what it is has never featured very prominently in much of Catholic theology and philosophy as those such as Thomas Aquinas, the official teaching of the church since 1893. Civil disobedience must be sacrificed on the altar of order public or one might say currently public health.

Well to disobey against tyranny is important, as Locke argued, and Gandhi and Martin Luther King, among others, implemented but is ever dwindling as people internalise obedience and engage in anticipatory obedience, as Gros recently argued.

One of the perennial problems of the dissident or the conscientious objector, or the protestor, is to accept at any level the legitimacy of their oppressor’s viewpoint.

This is a psychological condition or conditioning known as Stockholm syndrome and, in our age of compliance, it is to accept the legitimacy of a point of view devoid of rational foundation. To accept his torturer’s right to act.

Foucault also chastised against what many writers have termed blind obedience as did Hannah Arendt, increasingly a feature of our age, in the recent Gros book the question of surplus obedience is canvassed like surplus to requirements where one obeys for the rewards or pledges, assumed promises and out of a visceral sense of gratitude the sort of nonsense compliance that neoliberalism engenders from a fractured undeserving sense of noblesse oblige. Milgram’s experiment on people’s aptitude for sadism, a vicious compliance.

So, people of Austria and Germany, oddly enough many democratic principles are in your hands, and you are doing a good job thus far of ridding yourself of atavistic characteristics.

Protest to survive to achieve moderation against tyranny and a little bit of freedom in coronavirus catch 22.

David Langwallner is a barrister specialising in public law, immigration, housing and criminal defence including miscarriages of justice. He is emeritus director of the Irish Innocence project and was Irish lawyer of the year at the 2015 Irish law awards. Follow David on Twitter @DLangwallner

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