The law and conscience

I just had about the hundredth conversation with my principal about "the law".

It's becoming clear to me just how romantic people are about the law.

And why it was just so easy for the Nazis to do what they did.

Without any historical consideration, the law can be a pure, romantic arbiter of everything good and evil in the world.

But there is too many of the world's evils that have been rationalized in the name of the law. Naziism and the Holocaust. Communism. Slavery. All of the worst forms of political repression and state and privately sponsored violence against people.

Terrorism is rationalized in terms of the law both as terrorists and their sympathizers indict those they oppose based on arguments about their legal behavior and as they use terrorism as a means of political pressure to guarantee political and legal outcomes that they prefer. I have talked with political advocates, personally, who have rationalized the use of murder and terrorism as a political tool to guarantee legal and political outcomes they favor, nevertheless studying the larger swath of terrorist movements who have this as an explicit strategy, generally, and at least an implicit or unspoken strategy.

Political and legal negotiations, when military options cannot possibly win an open war, are THE rationalization for terrorism. And it is the reason why radicals of every stripe feel more comfortable with legal language and outcomes associated with their activism - often very violent and threatening activism - and propaganda associated with their causes: because they are pressuring for legal and political outcomes - in the form of legal agreements - that they prefer.

Legal arguments typically having infinite elasticity limited only by the judgments and proclivities and arguments of those engaging the political and legal battles that define their limits, at least for the moment. Many political advocates argue otherwise. And then proceed to argue for relaxing or strict enforcement or leeway in more punitive or forceful enforcement of a law based on their sympathy for parties and causes involved. It's more typical than not, really. Everyone just pretends that they are more objective in their concerns than they really are. And so many people get caught within that crossfire.

Lawyers and judges and legal experts will argue until nightfall about the objectivity of their enterprise, about the letter of the law, or about the integrity of their effort.

But the clear reality of legal history and proceedings, from the beginning of civilization, from Solomon on down, is that judgment, not some mythically clear and objective notion of the letter of the law, has always been the final deciding criteria for all legal renderings. Lawyers and judges will hem and haw around stricter or less obvious advocacy for a cause driving their arguments or their decisions. But the bottom-line is that their many, many diverse, often contradictory, often mutually exclusive - hence the need for an appeals process - often unpredictable decisions, by judges, juries, legislators, courts, executive interpretations, and the many other multitude of ways that law is interpreted and applied carries any particular day in any particular way.

To their credit, legal professionals and those who interpret the law in democracies generally try not to interpret the law in arbitrary ways (though that is a very low standard, indeed, for the fairness of a society and its enforced judgments). And they can and often are very generous, lenient, merciful, forgiving, and otherwise genuinely concerned.

What they and the political and legal process is not is perfect or always fair or decent and certainly many, many laws that we are faced with enforcement around are often arbitrary, wrong-headed, counterproductive, undermining of more values critical to more important, honest, genuine, decent, supportive human relationships. And often, far too often, the legal and political process is used as a means of settling scores, exacting revenge, enforcing inhumane and indecent majority opinions or minority preferences.

And the law, worst of all, is often used to rationalize just whatever people please. It is used to rationalize oppression, in the case of thousands of years of slavery and so many of history's most repressive regimes and their social mores of the times, even genocide, in the case of the Holocaust, of groups and individuals, to enforce draconian and often ugly worldviews on a people, to satisfy a politically popular notion of a moment, and all of so many of our worst human instincts.

The law is hardly an arbiter of everything good and evil in the world. Indeed, it is often the facilitator of so many of the world's most serious evils.

That does not indict the law inherently. It is clearly necessary to provide political and legal and moral authority to protect us against murders and rapes and arbitrary invasions of our personal, professional, and jurisdictional self-determining concerns. But that is where lies the rub. From that point is the rationalization of the law for any number of incursions on the freedoms of others, even if those incursions are unjust or unfair or counterproductive or overreactive or otherwise wrongheaded.

And that rationalization and the fear and intimidation that the law is regularly meant to instill became the basis for the evil legal regime imposed by the Nazis which passed laws depriving Jews of property and mandating their reporting to ghettos for starvation and death and mandates that Germans report Jews they knew of with similar threats to enforce such grotesque laws. Similar legal regimes underpinned and underpin, currently, the horrors of political, economic, cultural, and legal repression, even mass murder, sadly, in the name of Communism. They underpin the evils of theocratic and secular autocracies around the world and throughout the world's history. They underpin many of the world's most serious evils in more and less mature liberal and not-so-liberal democracies and republics.

Law is used to rationalize most of the worst evils that society faces, generally, is the truth. It is hardly the arbiter of everything that is good and evil in the world.

It is the means by which the worlds most seriously and horrifically oppressive regimes, activists, cultures, and other groups have enforced their worst forms of oppression and often violently-backed beliefs and preferences, since the law inherently involves coercion and often has involved violent police action - on populations.

The law was the rationalization for the ugly treatment of Mohatma Ghandi and Martin Luther King and their civil disobedient followers. Indeed, civil disobedience was a concept first coined by Henry David Thoreau and studied by Ghandi and King in response to societies where law was used to overwhelmingly oppress those with minority opinions, even ones that history has judged as the most seriously just of their times. In fact, many if not most of the most seriously just movements and causes in history have challenged some law or another or some politically or social enforced more. Hence the aversion to repression - political, legal, social, personal, or otherwise - amongst liberal democratic peoples. Because such repression has been commonplace in the law, in the politics, and in the cultures of most civilizations since the dawn of humanity.

And, yet, consistently, each generation treats its rules and laws, that have often oppressed and quashed even the most just dissent as more sacrosanct than they every could be. Law has been used to resist important change for purposes of justice like civil rights and civil independence. And so many laws have consistently been used to rid the world of the various evils only to fail. Alcoholism, adultery, sexual deviance like homosexuality or sodomy or contraception among heterosexual, often married adults, religious heresy (of those of the most serious religious courage in the cases of figures like Jesus of Nazareth, Martin Luther, and many other religious heretics of their times), abortion, civil unrest in the case of legal harrasment of civil rights and independence movement advocates, and so many of the too-many-to-count examples of perceived evils of a time have been legally sanctioned, many, though not all, of which turned out to be much higher goods than societies at the time ever imagined.

And worst of all, law is the most salient means of manipulation by groups like Communists and the Nazis to impose their worst moral crimes against humanity. And it is so salient and powerful a means of manipulation for exactly the reason that democratic peoples are romanticizing it today: because they treat it as so sacrosanct.

Meaning, it is the very attitude that prevails today that made the Holocaust and mass murder in the name of so many political, religious, social, and cultural causes possible. Nazis, Communists, and other political groups have most certainly had the upper hand, in terms of the use of force. But it was the compliance of their populations, in contrast with the courage of too many peoples in those cultures and times - Pope John Paul II, Jewish resistance movements, the underground railroad, civilly disobedient protest movements, conscientious objectors, dissidents and underground resistance movements - so many of the most courageous people of the 19th and 20th centuries nevertheless the long history of humanity - have been so BECAUSE they were willing to break laws that others were too afraid to break, thus rendering so many majorities of people compliant and complicit in the terrible treatment of the people at which those laws were directed or for which laws well-intentioned but nevertheless destructive against those who they were directed.

The law is one of the most powerful means to enforce cowardice on a population and enforce socially or politically popular thinking about groups, thereby scaring into submission those who might otherwise challenge their immorality or inhumanity or wrong-headedness. Jim Crow was codified by popular support and legal and political frameworks and Naziism and Communism and genocide and political repression of all sorts and all of their ugly repurcussions experienced and experience considerable popular support in countries that sponsored them.

Clearly, the law is not always used for these purposes. And many well-intentioned laws, and most wrong-headed laws, often are genuinely designed for higher, better purposes.

And the road to hell and to much of the political, legal, social, and cultural repression over the history of humanity is paved up and down with good intentions.

And yet, still, despite all of that, so many people still look at the law not as an imperfect instrument that is strengthened and more authentically credible and morally sound and persuasive the least possible that it is to resolves difficult matters of the human condition and human heart or to correct perceived or real harms. Despite this torrid and ugly history that follows legal and political means of resolving our most difficult human questions, even peoples in liberal democratic countries, with cultures educated and infused with values borne of the ugliest experiences with political and legal repression, still romanticize the law as more useful or credible a moral arbiter than it really is or ever could be. Clearly, some problems - though far fewer for which law and politics is actually used, these days or ever in human history - can, as a matter of fact without alternative that I can imagine, at least, only be resolved by law and government. But the great majority of human questions are best resolved with the highest of liberal democratic values: the freedom, conscience, self-determination, and self-governance of independent and interdependent individuals, through honest engagement, appreciation, and concern for shared interests and for one another as individuals. We will fall short of that ideal, surely and often. But we fall short as a rationalization for our more petty, self-centered, less empathetic and compassionate, and baser impulses and priorities at our own risk to our humanity and of living into perpetuity with problems that would often, generally, be better resolved by free peoples acting freely and with good faith with one another and with better faith toward those act in bad faith.

And we risk rationalizing and giving support to the rationalizations into perpetuity, even inadvertantly, of the ugliness of evils like terrorism, Communism, autocracy, political, religious, social and other forms of repression, and so many of the world's ills that are predicated on the righteousness of their cause and the need to reconcile the law and governance to such a cause, the use of violence and political pressure to bring that reality to bear, and the belief by many who favor such causes that liberal democratic peoples are really like themselves, only too afraid and cowardly to fully enforce their views. It is the modern evil of radicalism that democratic peoples consisently support and fall victim to, never fully reconciling themselves to the ugly consequences of such support.

So when my principal gets a head full of steam about what "the law" is, it is somewhat difficult for me to treat that kind of reasoning with more seriousness than it really deserves.

Conscience, not law, is, always will be, and always should be the final arbiter of all things good and evil in this world. And if anyone associated with the politics or the law tells me or anyone else differently, it is clearly, to my mind, because they do not take their consciences nearly seriously enough.

They certainly do not take their consciences as seriously as I do. And, as has always been true, they certainly do not deserve to be taken more seriously than those who take their consciences more seriously.

Because taking our consiences more seriously than the law and anything else in our lives is and has always been the most serious undertaking that any generation of liberal or not-so-liberal democratic or not-so-democratic peoples have ever engaged in.

And anyone who tells you differently, as far as I am concerned, has not and does not take their consciences and the judgments it renders nearly seriously enough.

And that is the most serious tragedy of human history that liberal democratic values have been meant to rectify.

Love,
Ben