Tuesday, August 29, 2006

The rule of law.

Anyone remember my good friend, Rick Salutin? I took apart his understanding of morality a couple of months ago, right here. Now, it's time to take apart his (lack of) understanding of law.
There's no real connection, for instance, between law and justice. Law is law and justice is justice.
If you're a hard positivist. If you're a soft positivist, or a natural lawyer, or a Dworkinian, then there is an essential connection between law and justice. (Jurisprudence should be mandatory as part of a good liberal education.) See this essay by York U prof, Leslie Green. Section 3 in particular is relevant, but the whole is excellent.
But there are other options, mostly in what's known as the oral tradition. Elders, sages, councils, healing circles. Some of these rely on handed-down legal traditions, but those are more transparently human and challengeable under that tradition.
This is stupid. Salutin is drawing a distinction with no difference. Oral traditions are legal traditions (at least under Hartian theories of law) if there is a system of primary rules of right and wrong conduct over which range a system of secondary rules. Basically, Salutin has confused statute with law.
The Talmud, Judaism's oral law, recounts a dispute between two schools of legal thought when a voice from heaven intervened to declare: "These and those are the words of the Living God!" It settled nothing, but it sounds more honest and, in its way, more democratic than our Procrustean system. Taught (meaning written) law is tough law, Harold Innis said, just as taught philosophy (like Aristotle) is tough philosophy compared to Plato's dialogic approach. We forget there are alternatives.
Confirms my suspicion that Salutin is running together statute and law. There is a rigorous common-law tradition in the UK, Canada, and the US -- and many other countries -- and this tradition is not written law. It is interpreted from the bulk of cases -- this is what distinguishes common law from statute. Moreover, there is at least some vestige of customary law in all three of those countries -- law that is not made by judges and is not written in statutes. One of my favourite examples (from Les Green) is the law that says the leader of the most numerous party in Canada's federal Parliament gets to be Prime Minister. There's no statute and there's no precedent that says this is so -- it's a matter of custom. But, nonetheless, the law. So, all this nonsense about "written law" ignores that a significant proportion of our law -- not law in some other society, but in ours -- is unwritten.
The one thing inherently just in the rule of law is that it applies equally to all (in theory), which is just, or would be, except that, as everyone knows, it doesn't happen in practice. If you doubt me, spend a day in criminal court. (I think making everyone do so would do more democratic good than compulsory voting.) This season, charges against Conrad Black and others are being flaunted as examples to prove the law does so apply equally, which merely proves they are exceptions meant to obscure the norm.
This is just bizarre. In the beginning, Salutin distinguished justice and law. He ran the distinction a bit too hard, but the distinction is fair. Here, however, he criticizes the claim that law applies to everyone on the grounds that, frequently, the law's conclusions are unjust (i.e., the rich get off and the poor don't). It makes no sense at all. I wonder if he thinks these things through before sending them off to the editor?
Since equal treatment is the soul of whatever is worthy in rule of law, it's an embarrassment to hear the term used to justify the Bush war on terror. Under it, people are held secretly without charge, shunted around the world, relabelled creatively as unlawful combatants and "rendered" to countries for torture. Whatever you call this, it doesn't resemble rule of law.
Here, at least, he's right. The "rule of law", at base, claims that everyone is equal before the law. What the Bush admin is claiming is that some are entitled to less legal protection than others -- and some entitled to more.
But I think Borys Wrzesnewskyj got confused trying to apply the core principle of rule of law: equal treatment. Under it, Israel, too, would qualify for using terror tactics, as Amnesty International, Human Rights Watch and the UN High Commissioner for Human Rights have all more or less said. Its acts include kidnapping legislators, bulldozing homes as collective punishment, destroying power plants, roads and bridges, dropping cluster bombs etc. In general, this conforms to the definition of terror as violence against civilians for political ends. ... Israel is far from alone among states. The U.S. was convicted by the World Court of terror against Nicaragua, and ignored the ruling. Most Arab states have terrorized their own populations. But states are routinely and irrationally excluded from the charge. I'd say that, confused by this hypocrisy, Borys Wrzesnewskyj called for the exclusion of Hezbollah from the category, rather than the inclusion of many worthy governmental candidates. On that basis, I think he deserves another shot at the mire of Canadian politics.
I sincerely doubt that Wrzesnewskyj was motivated by a concern for equal application of the law. Moreover, if he was, he was wrong. Hezbollah is not a state; Israel is. Being a state is a relevant property in normative (moral, political, legal, etc.), and can serve to ground real differences in conclusions. That is, since Israel is a state, and Hezbollah is not, we could justify differential treatment. On the other hand, if Wrzesnewskyj was thinking that treating Hezbollah as a terrorist group is ineffective in securing peace in the region, then his claim really wasn't legal at all -- it was strategic policy (the best means) aimed towards a principled outcome (peace in the region). I really have no idea where Salutin got the idea that "rule of law" was even at stake here. Not to mention that Israel has refused to sign onto the International Criminal Court, and so, strictly, can't be prosecuted even if it does violate international law. (And, Hezbollah, as a non-state group, also couldn't be prosecuted under those laws. Hezbollah would have to be prosecuted under Lebanese laws, as it acts in Lebanon.)

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