Diatribes of Jay

This blog has essays on public policy. It shuns ideology and applies facts, logic and math to social problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear.

21 September 2006

Law and Justice

Language is a funny thing. Each nation sees the world through the lens of its own tongue. Russian uses the same word, “pravo,” for both “right” and “law.” Its word for “justice” combines “right” with the root for “court.” The implication is that “justice” is what a court sees as right.

Our Western tradition is different. Latin underlies most European languages. It has different words for “law” and “justice”—“lex” and “justitia.” These words even come from different roots. Lex derives from the root for “reading,” implying that law is written down. The word “justice” is quite different: it evokes a basic human sense of right and wrong, from which law springs.

Maybe that’s why the West has had the world’s strongest democracies based on the rule of law. It knows that law and justice are not necessarily the same and strives constantly to bring them closer together.

But having the right words for nuances goes only so far. If the rule of law is to survive, people must perceive it as just. When law and justice cease to coincide, the social consensus that allows law to rule breaks down. Then the “lex” on paper no longer matters. If the divergence becomes intolerable, eventually heads will roll.

Are we starting down that long, dark road in America? For millions of American workers, it certainly seems so. They toiled hard for decades. They flew us from point A to point B. They built our cars. Now we cut their pensions drastically as they reach old age, just when they are frailest and most vulnerable. When they most need it, we deny them the security and comfort that we promised.

This, we are told, is perfectly legal. Their pensions were private promises, and the private firms that made the promises went bankrupt. The law, in that case, says that all bets are off. An obscure government bureaucracy called the Pension Benefit Guaranty Corporation will decide what these millions of workers get to live on in their old age. The promises mean nothing.

How, pray tell, would the outcome differ in Russia? There a government official (once called a commissar) determines what pensioners get. In our country, it is just the same, at least for the millions of workers shafted by the law of bankruptcy. The only difference is that Russia’s decisions are more efficient. Here legions of lawyers, consultants and lobbyists get their cut. In both countries, solemn promises to honest workers lie broken in the dust.

Every language has a word for “promise.” The idea is basic to human society. Contracts, agreements, marriage vows, the very “social contract” on which government depends—all are promises. You don’t need a dictionary to know that breaking important promises to so many people is neither just nor fair, no matter how “legal” it may be.

“Downsizing” millions of pensions is just the tip of the iceberg. Some time ago, our country shipped an innocent Canadian citizen of Syrian descent off to a Syrian jail to be tortured. He was suspected of being in cahoots with terrorists. A thorough Canadian investigation, by a blue-ribbon panel, found the suspicion unjustified, and the process that produced it horribly sloppy.

On our side of the border, we “rendered” a citizen of a friendly neighbor to a hostile nation for torture and abuse. We gave no advance notice even to the Canadian government, let alone to anyone who might have helped the hapless victim prove his innocence. The poor fellow spent ten months being tortured in a Syrian jail, deprived of all contact with family, friends, and countrymen, thinking of suicide. Now our Attorney General appears on television to bless this farce, saying all was done according to law. He never mentions justice.

Alberto Gonzales is a high-level hired hand. Nobody elected him. But the gap between law and justice has reached our own representatives. The Constitution gives Congress the power of the purse. Our elected legislators now have conferred that power on each other. They’ve agreed to give each member the power to spend our money in his or her district at will. Their agreement is called “earmarking.”

The members hem and haw about serving their constituents, but we see through their masks. Earmarks are nothing more than political patronage paid for by us, the people. They are a blank check without checks or balances. Their sole purpose is to keep those who order them in power by rewarding those who are loyal. They are not just a waste of our money; they are a gross betrayal of the public trust.

At the same time they are spending our money in a corrupt bid to keep their seats, our noble members of Congress have another ploy: gerrymandering. With complicity between state and national party affiliates, dominant parties use their control of state legislatures to draw districts that create “safe” seats. Not even “split” states are immune from this process. In politically divided states like California, the parties collude to create “safe” seats for both parties. The result: this November, in one of the most hotly contested midterm elections in our history, in a deeply divided country, only ten percent of the seats are up for grabs.

The world has seen this all before. It is a more subtle, “gentlemanly” version of the “bread and circuses” that Roman leaders gave their people shortly before their democracy decayed into empire. Where’s the justice in that?

We can sneer and jeer as Hugo Chavez calls our president the “devil” on the floor of the United Nations. But not everyone was sneering and jeering. Some of the world’s representatives smiled and laughed sympathetically, and some even clapped.

Why? Can you imagine anyone applauding that name-calling in the aftermath of World War II? after the Berlin Wall fell? just after September 11? How have we, the world’s protector and beacon of justice, fallen so low in international esteem that a two-bit former paratrooper from South America can call our president the devil, and some of the world’s leaders applaud?

Maybe the gap between our law and justice is growing abroad as it is at home. We not only signed the Geneva Conventions; we were a prime mover behind them. We hoped they would help end the growing threat that “total war” posed to civilization. Now, when face a far less menacing threat than in World War II, we hedge our commitment. We want to “reinterpret” what “torture” means to allow more “robust” interrogations. We say the Conventions don’t apply to “enemy combatants,” and our own Supreme Court slaps us down. Then we wonder why some dang foreigners think we are going back on our national word.

Finally, there are the promises we won’t make. Having crusaded for decades for the rule of international law, we won’t sign up for the International Criminal Court. The justice that brought the Nazis to account after World War II, that curbed Milosevic and is chewing on Charles Taylor is not good enough for us. The reason? We’re worried that our own soldiers and statespeople may end up in the dock. You don’t have to be a social scientist or political seer to understand how that argument plays in Africa, Asia and Latin America.

Then there’s global warming. We’re five percent of the worlds population, but we account for one-quarter of global warming. Our scientists discovered it and raised the alarm. But we won’t do anything about it. We won’t even sign up to a half-measure like the Kyoto Protocol, after virtually all the other developed democracies did. Meanwhile, the effects of global warming are beginning to be felt, mostly in poor and weak places like the Arctic and the Maldives.

We sing of the rule of law, and we want others to join our chorus. Yet our own tune sounds increasingly discordant. At home, the gap between law and justice grows. Abroad, we cannot bring ourselves to subscribe to the overwhelming international consensus among our civilized, democratic peers, and we hedge on the commitments we have made.

We are better, we say; we are unique. Is it any wonder that others hear those words as “we are stronger; don’t mess with us” and call us hypocrites? Now, when we say “rule of law,” the world hears “might makes right.”

Can we reverse these trends? Can we close the gap between law and justice at home and abroad? Can we restore our international honor and prestige? Can we stop our own swift moral decline?

The upcoming election offers scant hope of a reversal. Even if the House and Senate change hands, the national spirit will not change. Complacency, corruption, greed and arrogance of power are too firmly entrenched, not only in the executive, but in the halls of Congress. Ninety percent of members’ seats are safe; a mere change in control will not change the spirit of Congress, let alone the nation.

There is a brighter fantasy. The wronged may rise up. The millions whose pensions have been downsized, who’ve lost their jobs to globalization, who have no health care after decades of mean debate may vote to unseat incumbents, regardless of party. Some of those “safe” seats may fall—maybe a lot of them—and our leaders may wake up.

It’s a pleasant dream, but likely vain. Barring such an electoral revolution, the outlook is grim. We’ll continue to spend our blood, treasure and moral capital like a sailor new in port. A moral awakening requires a new type of leader, one who can see the difference between law and justice.

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