Monday, November 20, 2006

Rule of Law

There are cases that can test our respect for the rule of law, but these offer the best opportunity for us also to strengthen it.

Four out of five vigilantes were convicted in New Brunswick this week for setting ablaze the house of a suspected drug dealer who it was said was making life in the town very unpleasant.

Saddam Hussein's trial is described as being "flawed and unsound" by Human Rights Watch as they call for it to be overturned and retried.

In the first case the common public reaction might be to lionize the defendants and to advocate leniency for them. In the second case the the common reaction would be to vilify the defendant and conveniently overlook the possibility that an unfair trial may have taken place.

At odds is the personal realm versus the abstract realm. Crimes are real and personal whereas laws are abstract and impersonal. Original and primitive justice is much more of the immediate, real and personal variety. If one feels that they have been impeded or wronged they lash out and penalize the perpetrator of the perceived crime. Caveman A's food is taken from him by Caveman B so the aggrieved clubs the thief over the head (assuming the power structure doesn't favour Caveman B so that Caveman A will suffer even bigger lumps). What is the great innovation of the Rule of Law is that retaliatory action and punishment is taken out of the personal and immediate realm and put in the hands of impersonal and sober Justice who is said to be blind.

What is liberating and democratic about the experiment is that all members of a group agree to be bound within it. Just because Caveman B is the son of the Shaman doesn't exclude him from the the consequences of his actions within the prescribed legal framework. The weakest in the group is protected from being abused by the most powerful. The side-effect of this is that even the most villainous is also promised a guarantee of due process.

The vigilante, even if he is supported by the masses to have acted correctly must be subject to the law. Sometimes masses are moved by cynically spread rumours and can be manipulated to act on unfounded suspicions. "I hear Martha is a witch. I saw her riding a broom last week. Something should be done about that woman." I'm sure those who lynched young black men for looking at white women the wrong way were convinced they were right. But we clearly can't trust vindictive personal rage to be the arbiter of right and wrong.

The evil dictator, even if he would probably have his eyes personally plucked out by the families of those that he killed, must be given a fair trial. It can only be this way if we want to continue to enjoy the liberating and democratizing power of the rule of law. Any abuse of it weakens it strength and could fail us when we need it most. For the law to continue to work for us, we must continue to work for it.

Some might laugh or scoff at the insistence that Saddam should receive a fair trial. But this is a great opportunity to show our western respect for the law. If he is clearly guilty, then he will get what is coming to him. We don't need to subvert our principles to hasten the process. So we should give him a fair trial but likewise a fair trial should also be afforded to those Western leaders who chose to flout the prevailing international laws to engage in vigilante military action.

Just because Caveman B is the head of a large and powerful nation doesn't give him the right to circumvent the law. Especially since the very founding of that powerful nation is based on these principles as they have been so admirably put forth by the framers of a really fine work of constitution. The job of Caveman B is to protect and uphold that constitution. Even he is culpable and open to prosecution if he decides to contravene it.

This reminds me of an infamous event in an American Presidential debate. Michael Dukakis who is against capital punishment was asked what he would say if his wife Kitty were raped and murdered. Would he not then want capital punishment to be meted out to the perpetrator? His response was: "No, I don't, and I think you know that I've opposed the death penalty during all of my life". He gave the right and consistent theoretical answer but it cost him dearly in the polls. What he should have said was that he probably would in that instance want to tear into the killer with his bare hands. Then adding that even if he felt he was right in the personal realm of immediate rage and retribution, he would have been wrong in the abstract realm of the law. That abstract and impersonal quality of the rule of law is worth upholding and even the most powerful should be held accountable to it.


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