Justice or Law: What do you want from your leaders?

The New York Times recently published a series of questions for Judge Sotomayor as her confirmation hearings begin. The questions are insightful, and in a perfect would definitely would be posed to the potential justice. Of course, her actual confirmation hearing is likely to follow the pattern of the post-Bork era: uninformed, leading, or just dim-witted questions will be followed by evasive, vacuous, or disingenuous answers.

But let’s take one of the questions seriously for a second: “Given your public remarks about the importance of judges showing compassion, do you believe there is a difference between doing justice and applying the law?” Good question.

First, let’s get the errata out of the way. This question was posed by the surprisingly-thoughtful Alberto Gonzalez. I wonder how he would answer the question himself (without using the worlds “I”, “don’t”, or “recall” and without firing US Attorneys for political reasons somewhere during his answer)? But even if Gonzalez was one of the worst Attorneys General in our history, his is a good question and deserves some thought.

The relationship between justice and the law can be a complicated topic, and has been explored by serious moral philosophers in great depth. The answer isn’t clear, and rests on underlying theories of of ‘justice’ and ‘law’. For instance, by ‘justice’, do we mean procedural justice, or outcome-oriented justice? What is ‘law’: anything dubbed to be law by a legitimate legislative authority? Or are individual laws open to challenge? Is law merely a list of dos and don’ts backed by government power, or is it a legitimate expression of binding norms that citizens demonstrably ought to follow? What is the source of that legitimacy? If ‘justice’ is the supposed source of legitimacy, then who decides what is just, and therefore what is legitimate and lawful law?

Phew. I don’t know about you, but I don’t feel like wading through those issues right now. Besides, I’m not sure I’m qualified. And most likely, neither are you.

But regardless of the objective morality of the Justice vs. Law debate (if there even is one), more important for our politics is what we as a people think the answer is. What do we small-L liberals of the Western world believe?

A couple cases

We can begin to test how we the public deal with these issues by looking at historical examples and taking a reading on our instinctive moral response. The most obvious case that comes to mind is slavery – a clearly unjust institution that was nevertheless a perfectly legal institution until the latter years of the Civil War. Let’s take a close look at parts of the history of slavery in the US:

Harriet Tubman and the Underground Railroad:

Most people celebrate the Underground Railroad as a righteous answer to the evils of Southern slavery. Who could be more noncontroversial than Harriet Tubman? And because of our benign image of Harriet, we look at the Compromise of 1850 (which required free state officials to help capture and return runaway slaves) as a law begging to be ignored. Just imagine if instead of the useless collection of old white men on the Supreme Court in 1850, we instead had some honorable jurists willing to exercise judicial review and at least take a look at slavery issues. What if the Supreme Court had overturned the Compromise of 1850 as unconstitutional? I doubt if we’d complain today about the evils of ‘judicial activism’ in 1850. In fact, we’d probably feel a little bit a of pride that in the middle of all the violence and evil of slavery, an official institution of the US government stood on the right side of history. And in feeling pride, we’ve already made our moral decision.

Justice: 1, Law: 0

Nat Turner and the 1831 Slave Revolt:

But wait, there’s more. Harriet may be a schoolyard heroine, but Nat Turner certainly isn’t. He led an armed slave revolt in 1831, telling his small group of followers to “kill all white people”. The rebels ended up wandering the countryside and hacking people to death with axes or bludgeoning them to death with poles. All told, Turner’s band slaughtered 60 white people, most of whom were children. In one attack, Turner’s group beheaded 10 children and dumped their headless carcasses in a pile in the front yard. The rebellion was eventually crushed, hundreds of innocent blacks were killed in horrific extrajudicial ‘retaliations’, and Nat Turner was eventually tried, convicted, and executed by the state of Virginia.

Nat Turner may be no Harriet Tubman, but he, too, broke the law of the land in an attempt to end the evils of slavery. His story isn’t exactly elementary school-appropriate, but on the merits there is very little separating Turner from Tubman. Some might argue that the issue of killing makes the difference, but to them I’d say what would you expect slaves to do? Live with their horrid lives because they’d likely have to kill a bunch of people to escape? After all, the Underground Railroad didn’t have a high enough capacity to transport anywhere near enough slaves to freedom. What remedy would you morally permit the remaining slaves? Simply to live out their short lives as abused property? That’s not very nice of you. So let’s pretend again that we have the 21st century SCOTUS sitting in the middle of the 19th century. I don’t think we have the same feeling of ‘damn the law – justice is justice!’ mentality as we had with Harriet Tubman. This seems a little murkier, a little less worthy of empathy. We’ll probably be OK with Nat being executed. And we’ll probably perceive most attempts at trying to justify his horrific violence as little more than rationalization. Even if we don’t agree with it all the time, the law is important … imagine the chaos without it! We can’t have slaves slaughtering white people indiscriminately. And with that cold-hearted defense of law and order, we’ve made our feelings clear.

Justice: 1, Law: 1

There are plenty of other cases to look at. Gandhi, MLK Jr., Gavin Newsom and granting same-sex marriage licences in San Francisco in 2004, Tea Party wackos and tax dodgers in 2009, etc. My guess is that from the two cases we’ve already looked at, plus the many remaining cases, we’ll find the following:

  • Our guts seem to play a deciding role in balancing Justice and Law for most people. This is a shame, because gut feelings really ought to have no role in deciding what is true or false, what is good or bad, what is permitted or prohibited. Our intellect is better suited to the task, and no matter how awesome Stephen Colbert may be, your gut does not have more nerve endings than your head.
  • Law wins by default unless the case for Justice is crystal clear. We are reluctant to see, acknowledge, or engage with the arguments for Justice trumping law. In essence, we’re conservative and defer to worldly authority easily. Harriet Tubman is allowed as an exception because there’s nothing really objectionable about her to our modern sensibilities. Nat Turner, though — he’s different. We’re uncomfortable with killing and unwilling to think too hard about the reasons behind it. Because his case is a little murkier, it doesn’t pass muster. Law wins by default.
  • The above points mean that Justice is likely to trump Law only in hindsight. In the moment, with all the details of daily life throwing us into information overload, and with all the doubts about the future course of human events, the argument for Justice is usually less than crystal clear. It’s too tempting to empathize with arguments supporting existing power structures as expressed in Law. Our moral judgment in favor of Justice is likely to arise only with the clarity of hindsight. Which is to say that it will arrive too late to make any difference.
  • Injustices, once codified in Law, are very slow to be corrected. Optimists like Obama and MLK Jr. say that “the arch of history bends towards justice”, while pessimists would add that the arch of history may bend towards justice, but it doesn’t race right there. Witness the 100 year lag between the end of slavery and the final destruction of Jim Crow.

I’ll finish off by looking at how this argument applies to the current debate on government torture. Regardless of the actual moral status of torture, my bet is that the average American thinks of it in the following way: they were happy to let the government torture potential terrorists after September 11, defering to the authority of the President and his decisions about legality. It’s only after a little hindsight, and a little more soul-searching, that Americans have slowly become a little sick to their stomachs, and by doing so have revealed their inherent judgment that state-backed torture went against fundamental tenets of Justice. Again, this came too late for Maher Arar and many others. But, then again, there is a real value to the Rule of Law. And given that Justice is such a tricky concept to define and apply, maybe we have just about the right balance between the two.  That sucks for those currently unjustly dicked over by Law.

Too bad no Supreme Court nominee could say as such publicly.


3 Responses to “Justice or Law: What do you want from your leaders?”

  1. 1 JSC7 July 14, 2009 at 11:16 pm

    I guess my gut take would be that people’s responses to your Turner and Tubman example are based less on their weighing of the moral implications of the two issues and more on their quick calculation of how they will be impacted by the two crimes. The Underground Railroad doesn’t pose much of a threat to the common Northerner at the time (probably in part because the numbers weren’t large enough to create any significant economic displacements, or maybe the economy was just doing well enough to soak up the extra labor). On the other hand, people see someone chopping heads, and they probably get a little worried that they might be next (even if for no rational reason, like people in the middle of nowhere worrying about “nukuler attacks”). To take it a step further, I imagine that for most people, serious weightings of moral issues only occur when they don’t feel affected by the issue being weighed. I imagine that’s why white collar crime got a free pass for so long (no one really felt at risk from the activities the way they felt at risk from urban crime), until the financial crisis, when people suddenly connected white collar crime to the crisis and losing their jobs, and suddenly everyone is watching the Madoff sentencing hoping he goes to the gallows.

    • 2 JSC5 July 14, 2009 at 11:32 pm

      I agree with you for the most part. But I think there is a spill-over effect that goes from being grossed out by chopping off heads and worrying that we’re next, and heavily influences the gut check on whether Turner’s actions may or may not be somehow ‘just’. I think the moral murkiness of the Turner case is tied up with the emotional murkiness you describe. That’s why the gut generally ends up being the final arbiter in less-than-clear cases. And when it’s all so gruesome, it’s tough to pick apart our emotional reactions, rational assessments, and moral judgments. We’d rather not try. So Law wins by default, even long after the fact. Poor Turner — if only he’d gone with a Velvet Slave Revolt, let himself be slain while dressed all in white, and politely begged for mercy — he might have made it into our modern pantheon of Likable Dissidents. As it is, he’s just a common criminal.

  1. 1 Justice or Law 2: What should you want from your leaders? « Joint Stock Company Trackback on July 15, 2009 at 4:48 pm

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This is a group blog. JSC5 currently writes from the US. JSC7 writes from behind the Great Firewall of China.

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