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Saturday, September 01, 2007

JUSTICE, NOT LAW

He has shown you, O man, what is good; And what does the Lord require of you But to do justly, To love mercy, And to walk humbly with your God?
-Micah 6:8

The Gavel
There were three principles that the founding fathers built the United States upon. The first was liberty - loved most dearly because of the tyranny many had fled to reach North America. The second was virtue - loved because they knew without virtue, a Republic could not long stand. The third was justice. The founding fathers understood that justice was required for a republic to continue as well; that failure to be just would result in tyranny or anarchy.

They understood that without justice, there can be no liberty, for freedom that is crushed by injustice is not freedom at all. When a man can do what he pleases but is abused and ruined by unjust around him, there is not liberty, but tyranny. If the rule of law does not apply evenly and without respect to persons or status, then the people are no longer free, and may rebel in violence at their treatment, destroying the republic either way.

Like virtues and liberty, justice is often misunderstood and misused today. It is appealed to in a sense of fairness, and rejected for a sense of mercy. Justice is what people want others to face, and mercy is what people want to be treated with. The quote this essay begins with is a good illustration of the relationship between justice and mercy: we are to be just, but love mercy. If you require mercy, it ceases to be merciful and becomes mere law. But justice is always required.

What is justice, though? We have reached a place in our society and civilization where the concept of justice has become a bit hazy. Justice is simply this: the fair, ethical, and impartial treatment of all persons, especially in law. And here we run into a basic problem; what is Ethical? Morality is an ever-changing standard of right and wrong in society, cultures move through various stages of moral belief, and today's culture treats morality as if it were a replacement for ethics. Once, western civilization had a shared concept of ethical behavior, an objective basis upon which we determined right and wrong.

By contrast, what we face today is the rejection of a shared standard of right and wrong and a fool's attempt to replace that with relativism: the idea that something is right or wrong based only upon what you believe it to be or what present society has deemed correct. Tomorrow, to the relativist, this could be completely the opposite, and that would then be right and wrong, until it changed again. Lacking this objective, trustworthy, and unchanging standard, what was illegal or wrong yesterday is a fundamental right today. And the line of what is acceptable and wrong always moves step by step making what we consider wrong a smaller and smaller group of acts and ideals.

Without that shared, absolute, and objective standard and basis for right and wrong, we lose any stated sense of justice. What seems just to one person might seem cruel and excessive to another, particularly if it is directed at them. However, behind it all there is a glimpse of justice we can't ignore and avoid no matter what arguments and excuses we bring up.

C.S. Lewis pointed this glimpse out in Mere Christianity, by noting that everyone - no matter how young or old or what culture they are born in - appeals to a shared standard of fairness. We cry "that's not fair," and we do so without concern that the other person might not know what you refer to. We know that each of us, deep down, have an ingrained, shared, and objective recognition of fairness, right, and wrong. It is that basic understanding of justice that every legal system and civilization in history across the globe has used for their foundation.

Individual cultures and persons will abuse and obscure some of the basic ideas of justice we all share, but the concept is there across all peoples, it is written onto our souls, as part of being human. This is obviously not a concept that could have developed over time through slow mutations and adaptation, but that's for another essay. This is the basic concept of justice that Hammurabi used for his code of justice, it is the foundation of Chinese law and tribal taboos in the Amazon jungles. From Botswana to Iceland, basic human justice has had shared themes and ideals. It's as if there's some common understanding of truth, a higher origin and source of reality and justice that we all know even if we deny or obscure it in our lives.

Thus, we cannot simply appeal to relative human culture developing ever more crass and obscene as the method of finding justice. Justice speaks to us from our very being, and while each individual person might seek to codify their personal desires and interests into law protected and shown mercy, we do have an understanding of right and wrong deep down that these efforts abuse.

Yet there are more specific and deliberate way in which justice is abused and destroyed in our civilization, and it is done intentionally by the very people who ought to know better. These are the people who spend years studying law and justice, who make their lives and earnings based upon the very concept of justice.
"There is no shortage of lawyers in Washington, DC. In fact, there may be more lawyers than people."
-Justice Sandra Day O'Connor
LAWYERS
Lawyer CartoonFirst among these are the lawyers. Lawyers tend to be viewed with great contempt and suspicion by the general population, and always have. One of the least liked members of a ship's company was the "sea lawyer" who knew all the rules and argued constantly about treatment, thus disrupting harmony, discipline, and leading often to mutiny. Such a person was so disruptive to life on the ship - hundreds of men crammed into a small wooden box - that a cruise of several years became very unpleasant, even intolerable.

The lawyer joke is a long tradition, usually extolling the virtues of a violent death of attorneys and comparing them unfavorably to the worst creatures and parts of society. The humor isn't so much in the content but rather in the attack on the lawyer. Even lawyers nod and recognize the problems in their profession. Lawyers ought to be among the most altruistic, trustworthy, and noble members of our society. Instead they are often the least trusted, most loathed, and most ignoble. What happened?

The main problem with the legal profession is that personal ego, competition, and greed take the place of what ought to be a noble and honorable effort. The purpose of an attorney is simple: they are the trained experts, the specialists that come to do a specific job. A lawyer is like a doctor or a painter or a mechanic: someone who knows more about a profession and is hired temporarily to assist you in their area of expertise. Laws and the legal system are too complex for most people to have time or inclination to learn exactly how they work and how to use them. The procedure in a courtroom is so specifically and specially designed and executed to keep order and proceed to a proper conclusion that it takes a specialist to handle it correctly.

The defense lawyer's job is not, despite television drama and the apparent belief of many attorneys, to get their client declared not guilty. Their job has nothing to do with the final verdict, they do not "win" when their client goes free. They "win" when they have successfully negotiated the various difficulties, legal specificities, procedures, and technical aspects of the legal system and trial - should it come to that - in such a way that their client has been shown justice.

Both defense and prosecuting attorneys are part of a team working for the general public not the state or their clients. The are striving for justice, not for success. They are not fighting each other, they are fighting for the truth. A lawyer is not to find loopholes and tricks, not to fool and bamboozle the court or the jury, not to hide evidence or convince people of what they know is not true. The job of the defense attorney is to make sure their client is not mistreated by the courts, uses the proper tools of law and procedure, and is treated justly. Period.

The reason lawyers get such a bad reputation is because they make it their business to find ways to trip people up, find a way to win despite the clear intent of the law, sneak their way around the will of the people and justice, to get their client free, even if they are guilty. Technically, a lawyer is supposed to plead not guilty only if they believe their client is not actually guilty. In reality, there are thousands (at least) of lawyers who make it their job to not care about their client's guilt, only the odds of winning - with winning being defined as "my client walks free" rather than "justice is served."

Lawyers are, far too often, the kind of people who will find a single flaw in your statement and attack that, while ignoring the point you made to distract from the truth and convince hearers toward their point of view. They appeal to emotion, they abandon logical rules, they use every trick they can find to sway the jury regardless of the facts - in opposition to them, if necessary - to the point where injustice prevails.

Consider the OJ Simpson trial. Knowing that they could not possibly convince a jury that OJ had not actually murdered these two people, the defense attorneys instead decided they'd argue that the cops were worse, that they were awful and thus, OJ should walk free because cops are bigots and black people have been mistreated. They weren't so obvious about it, of course. They appealed to his innocence, but their case was built around making the police officers look bad, casting doubt on the very concept of collecting evidence and testimony, as if any problems or doubt whatsoever negated the possibility of being trusted in any sense. So on this earth, justice was not served, but the defense attorneys "won."

The legal system is abused daily because of this misconception of law and the job of an attorney. I have no doubt that law students pass the bar every day with every clear intent of seeking justice, with high ideals of right and wrong and their duty as a lawyer. I also understand that to make good money in that business and build a reputation as a good lawyer, you have to walk that darker, injust path. I understand that many legal firms demand success as defined by clients who walk free, because that's how you build a reputation and get more business.

I also understand that constantly being involved with criminals can sear one's perspective to the point that you start sliding the bar lower and lower. After all, not every criminal is a horrible monster, and all of them have aspects that are likable or even laudable. And I understand finally that it can be demoralizing to have your clients go to jail over and over because they were guilty and you didn't take advantage of some loophole or a legal trick or a clever argument. It can feel like failure.

The problem is, the attorney's job is to do what is right, to seek justice - not victory - and society suffers when the guilty walk free. Lawyers have a duty, a responsibility to everyone in their culture to fight for and seek justice first, to their client second, and personal achievement a distant second. When a lawyer is hired on for a job, they should approach the job with professional dignity and duty, not trickery and sneaking technicality.

On the other side, it is far too easy with the powers of the state for a prosecuting attorney to abuse and unjustly treat the accused. The ability of a prosecutor to hide or distort evidence, manipulate procedure, and railroad a poor or ignorant defendant is frightening. Consider the Lacrosse team members who were considered guilty by almost everyone and misused by a power-seeking district attorney after reelection. He suppressed evidence, he kept changing the story based on new evidence that showed his previous one was completely false. He pursued a case that was clearly false because of the publicity and the advantage in his election. And what's worse, this appears to have been a pattern, one that Nifong's defense attorney inadvertantly suggested in the recent trial, saying “What he did in this case was what he did in other cases.”

Both sides of the bench must approach their jobs with reverence and a fear of doing wrong. They must treat justice as their goal, not personal advancement. They must consider the trial to be about the people involved, not their own egos. Failure to do so makes everyone else in the community, nation, and even world suffer. The responsibility of a lawyer is very great.

JUDGES
He IS the lawMany lawyers have a goal of one day becoming a judge. In a way, a judicial appointment or election is like a promotion, moving up the ladder to one day the Supreme Court. Judges are in general treated with respect, honor, and dignity, a concept reinforced by the rules and laws of the courtroom. Everyone stands when the judge comes in, they must do what he says and treat him with respect (the judge will refer to himself as "the court"), by law and with penalty of fines or imprisonment for one's failure.

Think about the movies you've seen, the lawyers are portrayed as manipulative slugs with crafty ideas and little concern for law, but the judges are almost without exception depicted as deep, wise, noble men and women who fight against the excesses of the lawyers, who stand above the fray, shining beacons of justice and nobility.

Yet, in the end, judges are just lawyers wearing black robes. They've not become better men, they've not last their failings and egos. The same despised and contemptible lawyers who are routinely the least respected profession in the world are judges. Putting on that robe does not erase what they were before or what they are now. This is not to say judges are inherently contemptible and repugnant, nor that lawyers are either - although some are. It is to point out that making a distinction between the two because of that robe is irrational.

Judges, sadly, will tend to rule in favor of lawyers and legal trickery, not in small part because their job a few short years ago was that very sort of thing. Consider this article in the New York Times recently (subscription required):

Dennis G. Jacobs, the chief judge of the federal appeals court in New York, is a candid man, and in a speech last year he admitted that he and his colleagues had “a serious and secret bias.” Perhaps unthinkingly but quite consistently, he said, judges can be counted on to rule in favor of anything that protects and empowers lawyers.

Once you start thinking about it, the examples are everywhere. The lawyer-client privilege is more closely guarded than any other. It is easier to sue for medical malpractice than for legal malpractice. People who try to make a living helping people fill out straightforward forms are punished for the unauthorized practice of law.

But Judge Jacobs’s main point is a deeper one. Judges favor complexity and legalism over efficient solutions, and they have no appreciation for what economists call transaction costs. They are aided in this by lawyers who bill by the hour and like nothing more than tasks that take a lot of time and cost their clients a lot of money.

And there is, of course, the pleasure of power, particularly in cases involving the great issues of the day.

“Judges love these kinds of cases,” said Judge Jacobs, whose speech was published in The Fordham Law Review in May. “Public interest cases afford a judge more sway over public policy, enhance the judicial role, make judges more conspicuous and keep the law clerks happy.”

There are costs here, too, he said, including “the displacement of legislative and executive power” and “the subordination of other disciplines and professions.”

Yet, at the conclusion of a big public-policy case, the bar and bench rejoice. “We smugly congratulate ourselves,” Judge Jacobs said, “on expanding what we are pleased to call the rule of law.”

For more thoughts on this, Benjamin Barton has written an article that you can download from Social Science Research Network. The thesis is quite simple: all too often you can determine the outcome of a trial by how it will impact the legal profession. Even in the Nifong case, he's being tried for lying to court, not lying to or about the defendants. His treatment of them got him disbarred (although one has to wonder: was it that or this courtroom falsehoods?), but are there any legal repercussions?

Judges too often have a far greater sense of self importance and value than a sense of justice and right. Their power to maintain order and procedure can tend to overwhelm their sense of what ought to be done. Former lawyers themselves, judges are sympathetic to legal trickery, loopholes, and emotional tricks, and can often be relied upon to not check or be even concerned about such antics in the courtroom - as long as they are treated with respect and they are done within the boundaries of courtroom procedure.

Some judges further have a tendency to rule based on what they prefer to be true and to happen rather than what is right or just. These men are called "activist" judges, men who abuse their position and power to pass down rulings that match their preferences and desires for society rather than what justice, the law, and reason dictates. The Ninth Federal Circuit Court of the United States in San Francisco, California is the most infamous of such courts. Their chief justice Reinhardt has openly stated that his intent is to manipulate society and that he believes laws change over time to match what the whim of the public is, rather than being an absolute guide to check and control the people's whims.

The most overturned court in the United States, the 9th circuit court routinely hands down rulings that make a mockery of the US constitution, the rule of law, justice, and jurisprudence. Jurisprudence is technically the understanding of procedure and law, but more significantly it refers to restraint, wisdom, and proper application of law, a sense of propriety and justice rather than personal desire or power. When a judge faces a case like Roe v Wade and spends agonizing days trying to figure out a way to force abortion to be legal throughout the country rather than whether or not the cause has legal merits or constitutional basis, that is a failure of jurisprudence and an exercise of judicial activism. Yet the chief justice and primary proponent of abortion at the time of the case (Blackmun) stated openly that he did that very thing - his concern was first "how can I use this to manipulate society toward the ends I desire" rather than "what is right and just."

The argument he used was so weak his own clerk that typed it up believed that it would not last out the decade. So far the Supreme Court, unwilling to ever contradict a previous decision, has avoided even considering the ruling, despite several opportunities.

CRIME AND PUNISHMENT
CriminalWhat many problems we face now in society today come from is a basic misunderstanding of justice. Justice is depicted as blind, holding scales and a sword. She is blindfolded because she is then not determining the case at hand based on the people involved, but on the facts alone. She holds the scales because she seeks a balance, an equity of treatment and because she seeks to find the proper perspective between mercy and judgment. She holds a sword because justice must be swift, it must be strong, and it must be willing to execute mercilessly upon those who are deserving, including the death sentence. One does not use a sword to spank the guilty.

Yet today, often justice peeks, she has no scale but rather a plate of cookies, and the sword has been replaced by a cage. Justice peeks every time a case is ruled based on the wealth of the defendant, or their race, or their social status. Being poor does not justify crime, being rich does not exonerate the guilty, and being a minority does not mean you should be shown any more mercy than anyone else.

Justice holds the cookies because mercy is the default in far to many cases. Judges rule because they feel bad for the defendant, juries rule because they feel the criminal is repentant and feels sorry. Note the word feel used here, rather than think or reason. These judgments are not reached by careful and detached, rational consideration of the facts. They are reached based on emotional appeal and worry.

Justice has a cage rather than a sword because the trials can last years and are not swift, and the sentencing almost always involve a mindless simplicity: years in a box. As if no other possible punishment can be conceived or executed. Fines or jail, that's what 99% or more of rulings come down to. No creativity or logic, that's just the easy way, the least challenging way to deal with it. Throw them away somewhere and forget them.

And when in jail, justice is again abused or ignored. Here's something important for everyone to remember and understand: the purpose of punishment is not to rehabilitate. You do not punish someone in order to make them better. You punish them because they have earned and deserve punishment.

Someone is placed in jail or pays a fine, or does community service because they have broken the law and justice demands punishment. You spank your child for the same reason. You are fired for misbehaving at the job for the same reason. Justice is not about making you a better person, it is about making you pay for your deeds. Through this, the victims of your crime see justice done and are comforted. Through this, society benefits by evil being punished, good rewarded (by seeing evil punished), and the community is safer as a result.

Can people become better and be rehabilitated through punishment? Absolutely, and it is to be desired and hoped for. At the very least, they ought to be more cautious and fearful of punishment to the point of not repeating their crime. It is a sad part of our culture that for decades the entire point of punishment for crimes was lost in a psychobabble pile of nonsense. Prisons were called "correctional institutions." Convicted criminals were sent for "rehabilitation" not punishment. The entire concept was that we did this to fix wayward people who deep down were basically decent if psychologically flawed (most likely the mother's fault). This is not the purpose of punishment.

This cannot be stressed too much today. People need to understand that someone feeling or acting repentant is good, but they still must be punished. They have to realize that just because someone suffers because of their deeds does not mean they thus ought not face justice. Just because someone wrote a children's book and seems so nice in a TV interview does not mean they do not deserve to face justice. The Menendez brothers trial is infamous for a hung jury resulting because several of the women felt so sorry for the boys that had to do without their mother for the rest of their lives. The mother whom they killed brutally, then celebrated.
Audemus Nostra Jura Defendere
"We dare defend our rights"
CRUEL AND UNUSUAL
Blind JusticeThe reason the 8th amendment to the US constitution prohibits the use of "cruel and unusual punishment" is because to do so would be unjust. Briefly, one must remember in this statement that the punishment must be both cruel and unusual to qualify. There is no punishment on earth that is not considered cruel (if by no one but the person being punished) - it would hardly be punishment otherwise. Being unusual is often the hallmark of justice, not the violation of it. Instead of throwing someone in a box, you force them to work off their debt by cleaning up trash. Instead of a fine, you have to wear a sign that tells everyone of your crime and sit in a public place 5 hours a day for a week. Those punishments may be unusual, but they aren't unconstitutional.

The reason this restriction is in the constitution (along with many other restrictions on government action in the bill of rights) is because justice demands that prisoners be treated as human beings. Criminals have done wrong and been caught and convicted for it - that is the only thing that sets them apart from the rest of us. We've all broken the law, if nothing other than speeding or running a red light, or jaywalking. Police will tell you that you can't cross town without breaking a traffic law, the laws are that complex and people are not machines.

The purpose of justice is to punish the guilty, not to dehumanize them or treat them as if they are less than us. Criminals are just like you and I, with good and bad sides to them, faults and virtues. Sometimes they are better men and woman who had a momentary weakness or moment of madness. Justice not only demands humane treatment and punishment, but that once they have paid the price, they are treated normally. And here we face a problem.

It is one thing for people who have demonstrated a gross lack of responsibility and so violated the public's trust that they cannot be trusted with the right to vote any more. It is another to say that certain classes of criminals must in perpetuity be punished and restricted in life even after being released from prison. Once you have paid the price for your crime, you're a free citizen again. Yet if you are a sex offender, most states now require you to register locally, tell everyone who you are and what you did, even have a special marker on your car's license plate and on your house.

Is this just? Is this treating someone equally without respect to their persons? Modern psychology insists that a child molester cannot change and thus will never be better, ever. Yet the same psychology just 30 years ago called homosexuality a mental disorder and now considers it healthy - if not more so than heterosexuality. This is what we base our treatment of human beings on? Is justice truly done if you force someone, after paying their price, to suffer and be punished continually, by law?

Shame accompanies many crimes, and it ought to - that's part of how a society regulates its self. Yet government mandated shame and special notation of a certain kind of criminal not only implies that this crime is worse than every other crime conceivable but that someone cannot possibly have changed or restrain themselves. Perhaps they cannot: if so, why are they ever set free? If this is a crime that is so heinous that it exceeds all others in its unspeakable evil why does it not carry the ultimate penalty? Surely children must be protected, but the system we now use seems both cruel and unjust.

MERCY
It doesn't matter how sad someone appears or how repentant they are. They are still guilty and still must face justice. And here is where mercy comes in. Mercy violates justice. Mercy is when you do not face the punishment you deserve. Mercy can only happen if you are really guilty and really did the thing you are accused of - failing to punish the innocent is known as "justice."

Mercy is optional, that's why the quote at the beginning calls for doing justice, but loving mercy. We are to love mercy, but are not compelled to apply it. Mercy by definition needs to be rare or it ceases to have any purpose but to avoid justice. Today, our culture is often too merciful. In times past cultures been too harsh. Both are unjust.

The past tended to be a time when the wealthy, powerful minority could avoid justice - it simply did not apply to them. The nobility were presumed correct and thus above the law, a commoner could rarely even defend themselves when accused by the rulers. Today the situation is rather upside down. Often the more poor, unique, and socially disadvantaged you are, the less justice applies in courts. Being black means hundreds of years of oppression and misery, so you should be shown lenience. Being a woman means thousands of years of oppression, so the man is at fault - sure you mutilated him with a knife, but he was being mean and that makes it permissible.

Neither of these extremes are just, they are failure to apply equally and without bias justice to all peoples. The foundation of the United States was in no small part a reaction to the excesses of nobles and power, a desire for everyone to equally face justice regardless of their riches or position, their celebrity status or birth. The most humble beggar and most wealthy captain of industry were to face equally blind justice in the courts. This ideal is one we should always strive for.

FOR ALL
Liberty and JusticeThat begins at home, in how you teach your children and how you live your life. It extends to the way you vote and who you support in power. It continues into the courtroom with lawyers and judges who will love and seek justice rather than success and power. And it finally ends with one nation committed to liberty and justice for all. This society must abandon the relativist cant taught by so many on the left and in academia, it must embrace justice as a hard, but necessary concept, and it must regain the idea of justice and liberty that was bought at so dear a price by far better men.

We must regain this all, or one day lose everything we hold dear.
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