Laws, judgment, and our honest motivations
Shankar Vendantam has an excellent article in the Washington Post, today, that very much gets to the heart of the current period: getting revenge.
Are we judging actions, or the people behind them?
Shankar is right when he says that when we identify with others, we tend to cut them slack and make observations about their actions without necessarily judging them, personally. But when we see people as a member of an out-group, we tend to think of them as bad actors, not just people who make mistakes.
The wrath that has been brought down upon Don Rumsfeld, Lewis Libby, Don Imus, Alberto Gonzalez, and Paul Wolfowitz is not about constructively dealing with mistakes that people have made. The same folks who have taken after these men - Lewis Libby, especially, since his punishment was much harsher and his crime almost identical to the crime that Bill Clinton committed in the course of the Monica Lewinsky investigation by Independent Prosecutor Kenneth Starr - regularly defend liberals who make similar mistakes. Bill Clinton and Lewis Libby both committed perjury when they lied to grand juries. As did Ronald Reagan, likely, when he claimed not to remember important details of the Iran-Contra affair.
These scandals, and most political scandals, really, are public demonstration of our tendency to defend those we consider friends or allies and to take down those who we consider enemies.
It features largely in both politics and life, including and especially the law, the civil justice system and the criminal justice system, both being political institutions as much and sometimes more than impartial institutions of justice.
The truth is that most of us reason this way. We support our friends. We relish the fall of our enemies. It is not just a matter of partiality or impartiality. It is a matter of the heart and mind. Most people would like to believe that they are impartial and treat all people fairly regardless of their relationship. That is, of course, foolish nonsense, much of the time, despite our pride otherwise. It is something that people tell themselves while, generally, rationalizing whatever sense of judgment that they derive to argue for themselves that they're particular judgment is the most impartial or the wisest or the most reasonable or the most technically sound or the most respectful of the law or most moral or ethical or whatever rationalization that we/they can come up with for why their judgment is sound despite its inconsisencies or the fact that good, decent, and wise people disagree with their judgment.
Judges who say that they reason impartially in their courtroom relish the downfall of political opponents in elections. Supreme Court justices who say that they are impartial interpreters of the law make partisan decisions that favor their positions or candidates as a rule, really, rather than as the exception (Bush v. Gore being only the most stark example that we have seen recently). Politicians who say that they faithfully execute laws execute them as they see fit, including avoiding the execution of laws they disagree with or more cooperation with those they identify with and more animosity towards those that they don't. Interpretations and executions of the law regularly shift in their broadness or narrowness, their leeway or their strictness, their punishment or their mercy, and, by the interpretation of some, their conservative or liberal rendering, depending on the political moment, their political, moral, and historically attuned temperament, their experiences, their study, their relationships, their understandings, their perceptions, their interpretations of the world as much as their interpretations of the law, their religious, educational, class, race, gender and other backgrounds, and every other element of their lives which affect their judgments and interpretations of events and people.
This is and always has been the rule rather than the exception. This is the only rule that has ever really governed how people in power have executed or interpreted laws. This does not mean that they have been wholly arbitrary. They have not. It is the arbitrariness of human judgment that introduced the need for the law. The law was meant as a means of avoiding such arbitrariness and bringing some regularity and predictability in the relationships between governments and people. It has definitely achieved that in great part. It is a very serious progression from periods where more arbitrary rule have dominated. But it has done so not because of the presense of law alone. If that were the case, the law of Rome or previous governments or generations of civilization would have done just fine and no improvements or reforms would be necessary. The arbitrariness of government rule has been largely lessened and the predictability and better judgment derived from wiser, better educated, more reflective, more decent interpretations and executions of law and its relationship to the lives of the people it is meant to govern.
Police and prosecutors who do not enforce laws against adultery or sodomy are engaged in wise judgment, not being scofflaws. Those who commit and committed adultery and sodomy in places where such laws are in place are breaking laws that are bad laws. An impartial interpretation of such law enforcement might argue that they should be enforced regardless of their wisdom because they are the law which supercedes any other wisdom or fact. That would be a bad interpretation, I believe, and I would have very little respect for any other interpretation of such laws and those events, regardless of the argument, I imagine (I'm now and always open to such arguments, but I'd have to hear a very good one on this matter).
Liberal societies have rightly supported and celebrated - at least after the fact - those police and judges who exercised such wisdom in cases where laws were inappropriate. And that is much of the reason why people reason they way they do about the law. Because we all know this and we apply that interpretation to whichever laws we disagree with and apply our stricter interpretations to those laws we agree with. That's what is so dishonest about this current period. It either involves each of us lying, to ourselves and others, about what we really think about laws we disagree with, or it involves celebrating those who enforce all laws strictly in order to defend our pride that laws should be enforced impartially, even if people are hurt or their lives or liberty seriously disrupted or abridged by such reasoning.
Enforcing adultery or sodomy laws is wrong, regardless of arguments of impartiality by prosecutors. The enforcement of the death penalty law for homosexuals in places like Iran is wrong independent of arguments of impartiality of application by prosecutors. And the enforcement of such laws is wrong by any objective standard of liberal democratic values, which are higher values and more touch the purposes of law and government and their relationship to the lives of people and citizens than do narrow and often self-serving arguments about impartial prosecution of laws.
Enforcement of Nuremburg laws or fugitive slave laws or laws imposing death sentences on homosexuals or political dissidents are much clearer violations of those values. But it is clear, by such examples, that it is those values which decent people are more seriously accountable to than to a narrow argument about impartial application of the law. Those who enforced Nuremburg laws or fugitive slave laws or laws imposing death sentences on homosexuals or political dissidents are morally wrong by any decent standard. Those who enforce them are making profound and serious mistakes and crimes against humanity, even if those crimes are not explicitly outlined in or prohibited by law. How could behavior that is clearly within the law be immoral by any reasonable standard of humanity? Because moral judgment, as Martin Luther King and Mohatma Ghandi and Henry David Thoreau understood when they theorized about and engaged in civil disobedience, an explicit challenge and disobedience of the law for a higher purpose, is far more serious a matter than any narrow writing, passage, interpretation, application, enforcement, or prosecution of the law.
Moral judgment, for those who take such judgments and the consciences that make them seriously, supercedes and should supercede the law.
But that is not just a matter of the world of what should be or what is ideally. That is an empirical fact of peoples' relationship to the law. People, all people, make judgments about the law and live their lives in conjuction with the law or circumventing the law as their judgments - good and bad - lead them to do so. All people, no matter their position in society. They defend their interpretations. They defend their choices as it concerns the law. But they all make their judgments based on their best understanding of the law and their lives. Often they do so for bad purposes. Other times they do so for good purposes. But it is those purposes and not the law which ultimately matters and which ultimately carries each day and each decision, including passage, enforcement, prosecution, and interpretation of the law. There not only is no escaping this fact. It is this fact of life which allows decency to guide our civilization, especially when laws are wrong or illiberal or morally repugnant, rather than forever leaving civilization vulnerable to the machinations and manipulations of people like Hitler and Stalin.
It is our consciences and moral judgments which can make the distinction between enforcement of the Nuremburg laws and enforcement of laws against murder or genocide. They are both laws by any technical standard. Nuremburg laws mandated genocide. International law makes such behavior illegal. We make our distinction not based on which law has the jurisdiction or which law is likely to be enforced or held constitutional or be given power by those governing, or at least we shouldn't, though, I'm afraid, too often we have and still too judge laws by that immoral standard today. We make that distinction based upon our consciences and sense of decency and compassion, our liberal values and our moral judgments. We make that distinction because we know, down deep, that that decency and humanity matters more than any law or rule, at least when we are not rationalizing our baser, less noble instincts. Sadly we do this, as well, often with the law. Jim Crow laws allowed such rationalizations to oppress African Americans in the South. Laws against women voting have enforced such tragic gender discrimation and still do so in jurisdictions all over the world. Laws authorizing child marriage rationalize and codify support for pedophilia and the abuse of children in Iran and wherever such laws are in force.
The truth is that now and since the beginning of humanity laws are used to favor our interpretations of the world and are ignored when they contradict such interpretations. There has never been a time when that has not been true, just as there has never been a time when people have not sinned or violated one another's trust. It is now and forever true, no matter the pretensions otherwise by everyone involved.
And the only way out of such arbitrary and self-serving and often destructive facts of our human judgment and how it relates to the law is not a narrower, stricter interpretation of such laws and rules, narrower interpretations being the enduring fact of our less decent, more destructive and oppressive pasts. The only way out of this fact of arbitrary, often self-serving, and destructive application of law is the embrace the very liberal values which are the heart of more moral, decent, and wise judgments about life and the law. Those liberal values tell us to embrace freedom, as much as possible, and to facilitate the self-government and self-determination of individuals, even when that judgment is often flawed, except when it physically interferes with the freedom of others or when legal remedies are the only, most just remedy available.
I've got grading to finish up. But I needed to share why I am so mistrustful of the political rhetoric of the current period and what alternative judgment about this period and law and society I think is necessary.
Love,
Ben
