Thursday, December 18, 2008

Rule of Law

This post is inspired by three separate occurrences, two of them fairly recent. They are: 1, the riots in Greece following the shooting of a 15 year old. 2, the questionable value of a life sentence for Texas inmate Son Tran. 3, the 11th hour move by the Bush Administration to allow doctors and other healthcare service providers the right to refuse health services (meaning birth control and abortion). These all strike me as diverse symptoms of a situation in which the rule of law is seen less as a desirable practice and more as a totalitarian imposition. To clarify for naysayers: I'm not in any way opposed to the rule of law; I take issue with laws that are unjust, and laws that work against the interest of most everyone involved. I think these are all examples of law falling into the later two categories.


1. I'll start with the latter. Bush's action will be debated constantly in the coming week (with bonus Baby-Jesus-themed comments), and will most likely be opposed and somewhat overturned by the incoming Obama administration. The move represents several things: a "thank you" to longstanding Bush supporters, another play in decades-old culture wars, and a decision made by an unaccountable elected official. For all of these reasons, despite public sentiment, it strikes me as a profoundly undemocratic move. My intellectual-sparring-partner JR will side with me on the specific issue of rights concerning access to birth control and abortion services, but he will argue against the constitutionality of Roe v Wade. Ignoring the actual impact of changing that decision as it concerns personal rights, there's a democratic sentiment behind it that is worth examining. The case of Roe v Wade is implicitly about abortion rights, but it is explicitly about privacy, and states rights. If there is no constitutional right to privacy, than abortion is an issue left to the states. States, when making the decision, varied much more widely than a simple "legal or illegal", and the decision was localized to small constituencies. Say what you will about the potential for denial of rights that this entails (and don't get me wrong - there is some serious loss of rights going on), it does allow for a more democratic decision to be made, and such decisions have a legitimacy that feels undermined by judicial fiat. The reaction we'll be seeing in the media, the blogosphere, and political action listservs is a very real sense of powerlessness, of an invalidity of the decision made, and a general disagreement with the new ordering of the law. And that's because this is not a change made with political legitimacy. It's worth noting, however, that the whole of the national abortion debate feels that way to many folk, and has produced an incredible wariness in the American public to accept such top-down detached legal rulings. Esteemed legal scholar Lawrence Lessig, when faced with the passage of similar culture-warsy Prop 8, says this
But please, let's not try to win this battle by summoning the Supremes. Even if it is right that this Amendment is contrary to the best interpretation of Equal Protection, let us bring the ideals of Equal Protection to life, by getting people to support them.
It's worth noting that a legal scholar, a man whose life has revolved around various interesting and new arenas for legal battles (code and other laws of cyberspace, copyright), is arguing against a straightforward legal solution and is instead pushing for a solution that has democratic legitimacy.

2. Charles Platt's piece on Son Tran is one I'm going to examine in more depth elsewhere (it is part of an in-process post about the Universal Declaration of Human Rights). It's a fascinating story (in that weird, bleak way more common in dystopic fiction), and what stands out from all of it is that, no matter the actual crimes committed by the individual (or, indeed, if they were committed), the punishment seems to be something profoundly useless to society. Confounding this situation is the nature of the person who committed the crime - at the time he was sentenced, Son Tran was 17 years old. Thanks to a Supreme Court ruling concerning minors sentenced to death, he was moved from death row to life imprisonment. Depending on where you fall with your perspective of redemption, rehabilitation, and the changeable nature of humans, the 40 years he is now serving will make perfect sense, seem too short, or strike you as a gross waste of a human life, to say nothing of human potential. Charles Platt is upset by both this individual waste, and by the intended value of deterrence that sentences like this are supposed to have. He writes:
Let’s start with the concept of deterrence. I’ll ignore the death penalty, since the Supreme Court has already eliminated it for people under 18. Thus, we are left with incarceration. Has any study ever proved that the prospect of forty years without parole is a better deterrent than, say, thirty years, or even twenty years? It seems utterly implausible to me that the actions of a teenager in an inner-city gang will be affected by such a distinction. In fact I don’t believe that deterrence is either the effect or the purpose of the long, mandatory sentences that have become endemic in the United States during the past two decades.
The facts laid out are very few in the favor of Son Tran: gang member, confessed to murder, received a reprieve because of a supreme court ruling, not new evidence in his trial. But the gross failure and abuse of the criminal justice system (especially in Texas) are enough to make one doubt the whole validity of criminal justice in the United States. Platt's post at this point descends into a fairly typical "Reagan + Fear + Power + Money + Scared White People = Gross Human Rights Abuses that Shame America" argument, and it says something that this argument can have a standard form. It also poses a very real challenge to the acceptance of the rule of law in America, and it hits upon it from an entirely different angle that the Bush decision. The Bush decision is very much another move in decisions removed from democratic consensus - Platt's argument is that Son Tran's imprisonment is no social good (as imprisonment weirdly is supposed to be) but is instead the result of a poorly-framed democratic consensus. People have been pushing for politicians to be tougher on crime for at least 20-30 years now; what people haven't realized is that as a consequence of this:
Among the adult population of the United States, 1 person out of every 100 is now behind bars. Thus the unweighted odds of going to jail are greater than the odds of being a crime victim.
One could write a separate essay on how the people pushing for politicians to be tougher on crime are different than the people who are more likely to be persecuted by vigilant police forces (white & wealthy versus the poor, nonwhite, and disenfranchised) - I'm not going to comment on it anymore here than to say that, for a worryingly large percentage of the US population, law is seen either as "something to protect myself imposed on other people" or "illegitimate decisions made beyond my own personal control that will get me anyway, and so have no bearing on how I act." That's a breakdown in the very purpose of the rule of law, and of a democratic construction of society - laws have to apply equally, and laws have to be understood as threatening not just "those people", but everyone - especially the people who advocate for the law to be passed.

3. Lastly, we come to the Greek Riots. Others more skilled and/or better paid than I will make their conclusions about such serious anti-police riots in the birthplace of the World's first great democracy. The riots started as anti-police, but as they have continued they have done what all great riots do - become chaotic, divisive attempts to reinvent a status quo. The rioters are unemployed, upset with corruption, and think that the police forces have gotten out of hand - to express this discontent, they have attacked police and alienated their countrymen by destroying the property and threatening the livelihood of many small shopkeepers and business owners. It has all the hints of simmering class war, and rather than doing the democratic thing and siding with small owners as an upset middle class, the rioters are very much in the classical (or is it archaic?) mode of students, working class, and the unemployed so upset with the higher-ups that they willingly endanger and alienate those less outraged than themselves. This is not so much an issue of the nature of the rule of law as an example of a remarkable collapse. And yet, law itself hasn't entirely collapsed - the police exist, are a visible presence in Greece, and the government still stands. But the police are hesitant to act - one of their own is being tried for murder while on duty (the counterclaim is that he was provoked and responded appropriately), and so we have the potential for the rule of law, the semblance of a rule of law, and either a government or a police force unwilling to impose that law on the citizens it exists to protect. As law collapses on the national level, it re-imposes itself interestingly.

The shooting prompted parents all over the country to examine the liberties they have been permitting their children.

“My 12-year-old daughter has been getting text messages inviting her to join demonstrations,” said Constantine Michalos, president of the Greek chamber of commerce. “One of the messages said, ‘Don’t go to school today. We need to show our power on the street.’ I had to lay down the law.”

The riots will not, as many fear, have the effect of the French riots two centuries prior or the Russian riots all of 90 years ago. What they will do, however, is allow for a reforming of society around the rule of law - laws to protect against some of what inspired the riots (police carelessness and political corruption; it's hard to get laws passed against the economy), as well as against the actions taken by the rioters. Chaos like this is curious for it's ability to reforge society - France's Fifth Republic arose as a center-right forced the imposition of the rule of law over both the military and striking students and workers. And violence like this polarizes - while prior to the riots, many were discontent with the status quo in Greece, the value of the rule of law comes to the fore as people gravitate away from the dangers of the chaos and back towards the assurances of stability, becoming increasingly more willing to overlook injustices inherent in that stability as long as it means they have property, livelihood, and are guaranteed some freedom from molotov cocktails. The trick with any society structured around the rule of law, and especially that of democracies, is to balance freedoms with controls.

Stratis Stratigis, former chairman of the Athens Olympics organising committee, suggested he might have an answer. “Our democracy is destroying itself because it misrepresented the right to liberty and equality,” says an e-mail circulating his friends. “It taught the citizens to regard disrespect as a right, lawlessness as liberty, impertinence as equality and anarchy as enjoyment.”

This is a quote from Socrates, the ancient philosopher who ended up being sentenced to death for voicing truths that nobody wanted to hear.

“It’s funny,” said Stratigis. “Those words have a ring about them today.”

1 comment:

Joseph said...

An interesting series of thoughts. Bush's last minute move is pathetic. It marks nothing more than a desperate attempt by a lame duck president to make a mark on society that he hopes will never be overturned. It is another chapter in the "compassionate conservative" movement that got him elected. There is no Constitutional backing for the Roe v. Wade decision, you are right. There is no use of the word privacy anywhere in the Constitution, in any of the Articles or the Amendments. I agree that there is a democratic sentiment that pervades the backing of the devolution of Roe to the states, and that if that were to happen, it would go a long way in increasing and ensuring the rule of law in the United States.

The tough on criminals movement in bullshit. People have no concept of what it means to be tough on crime. There is no universally applicable model that works to solve the crisis of crime in this country. However, the wrong move is an attempt at deterrence. Deterrence only works in certain situations, like nuclear holocaust. However, it does not work nearly as nicely on the small scale. If deterrence were somehow effective, the crime rate in this country would be doing something very different than what it is. If deterrence were a workable model, there would be real progress in fighting crime. However, these are not the case. Rehabilitation and an attempt at recuperating would be a much better expenditure of capital and resources. But, no, this country has no concept of punishment other than retribution.

Greek riots. Ha. This is ironic. I agree with the comment by Socrates at the bottom of the page. It is a very scary reality that class warfare is beginning to break out all over the world. However, it was going to happen. It was inevitable. I think Marx had is right when he depicted history in stages based on class warfare. Now the inevitable and eventual endpoint of that class warfare might be slighting incorrect, I still think it is possible that we are seeing the next wave of proletariat and bourgeoisie class warfare based on deteriorating economic crises. The rule of law in Greece seems to be leaving something to be desired, but that simply provides the mechanism for Marx's conception of history. The outcome of these riots can be one of two things. The rioters get what they want, or the rioters get crushed and get 1984. I would like to believe that there is a third option somewhere in the middle, but my cynicism leads me to believe that the second option is much more likely than the either of the other two.

These developments will certainly play hell on the pundits in the next few weeks and there will be many new precedents set in society. The question remains, "Will we like these new precedents?" A little bluebird on my shoulder tells me the answer to this question is no.