Unjust laws

For some reason, today, the quote alongside the picture of Martin Luther King, Jr. got me thinking. The phrase "unjust laws", in particular, struck me. What is an unjust law? Who makes the determination?

King's quote is not new. It was said before by Aquinas who was in turn drawing on Augustine, quoted as saying, "an unjust law is no law at all". I tend to agree with the sentiment, as I imagine most people would, but the rub occurs, of course, when trying to determine exactly which laws are "unjust". Based solely on this quote, it seems that King is suggesting that humans have the ability to determine for themselves what is just and what is unjust. If this is the case, then we can infer that laws are completely unnecessary in the first place. For if a law is unjust, then no one is obligated to follow it. If, on the other hand, it is just, then there was no need for the law in the first place because people would have acted accordingly on their own.

This latter point is predicated on the idea that humans are, by and large, innately interested in living in a peaceful and just society. I believe this to be true simply because society exists at all, because

no social system, whether anarchist or statist, can work at all unless most people are "good" in the sense that they are not all hell-bent upon assaulting and robbing their neighbors. If everyone were so disposed, no amount of protection, whether state or private, could succeed in staving off chaos.

The idea of no laws probably conjures images in people's minds of masked marauders throwing Molotov cocktails in the streets. I'll make the leap of suggesting that this is objectively unjust. (I'm skipping ahead with that assumption, but we'll circle back.) In order to right this injustice, we need to haul the perpetrators into court and try them. Without laws, however, the court--whether by judge or jury--is helpless to judge the actions of the defendants. In fact, any judgment against them should probably be tossed on the grounds that it would be based on the imposition of an ex post facto standard. Since the law didn't exist before the "crime" was committed, no one can be convicted of having broken it.

But, look. We've tossed the conviction based on the idea of ex post facto laws being unjust, an idea clearly introduced into our theoretical justice system ex post facto. Clearly, we need laws, if only to codify what is (believed to be) just. Whether these laws must be promulgated by a single authority, the state, or whether society can adopt them on its own is the subject of another article. Instead, this article is concerned with the idea of (un)just laws.

Aquinas doesn't leave us hanging, fortunately. He lists three things, all of which must be true, in order for the law to be "just":

1. The law is created for the "common good".
2. The law does not exceed the authority of the lawmaker.
3. The law burdens all equally.

For the sake of completeness, Aquinas also describes a law as being unjust if it is opposed to the "divine good". In this way, he is adding a fourth requirement that for a law to be just it must not oppose the "divine good" as dictated by Aquinas' particular religion. This point violates the third point if we wish to allow for the possibility of the existence of other religions or even the right of individuals to choose not to observe any religion. Therefore, this requirement must be rejected.

Let us now consider the remaining requirements. First, the "common good". The phrase, itself, suggests that this "good" can be objectively known and that there is some good or end to which all people subscribe. The only end to which we can confidently assert that all people are working toward is the preservation of their own lives. We know this because any who are not working toward this end presumably would have killed themselves. Thus, any remaining people can objectively be said to value life over death. Therefore, all just laws must be made in the pursuance of the preservation of life.

Second, we consider the authority of the lawmaker. This must start by determining from where this authority comes in the first place. The simplest way to do this is to conduct a thought experiment in which one person and subsequently two people exist in isolation from anyone else. This has been covered before. The conclusion of this experiment is that each person exclusively controls his/her body. If one of these two people is to become the lawmaker, he or she can only assume that role with the consent of the other. That is, a lawmaker's authority extends no further than that which is given by those who would be subject to it.

Given this, we can now determine the extent of that authority. In practice, the lawmaker can have no more authority than any individual, for an individual cannot grant authority that he himself does not possess. It is worth noting that the logical extension of this is that two individuals have no more authority than one; nor four more than two; etc. In order to determine the limits of individual authority, we return to the thought experiment in which we've already concluded that each person has the exclusive right to control his or her body. In order to maintain this right, it is necessary that neither person engage in aggressive (as opposed to defensive) force against the other. This simple rule--the golden rule--is all that is necessary to maintain that status quo. Thus, the authority of the lawmaker is limited to the prevention of the violation of the exclusive control of bodies--the use of aggressive force--between a person or people against another person or people.

Finally, there is the idea that the law, to the extent that it burdens any, must burden all equally. Given the narrow constraints on the law created by the first two requirements, equal burden of the law is not a topic that requires much, if any, investigation except to say that the law must apply to all, including the lawmaker. Failure to apply the law equally, such as it may be under the first two requirements, would be to allow an individual or individuals to act contrary to Aquinas' second provision, and as already discussed, this authority cannot properly be granted by anyone. If the discussion had turned to taxes, a debate could be had on the equality of burden created by progressive vs. flat tax systems, but the imposition of taxes by the law again falls outside of, at least, the second of Aquinas' first two requirements.

To sum up, we find under Aquinas' "modified" requirements (remember, the fourth was dropped), that just laws must be enacted to preserve life; that the scope of these laws is limited to the prevention of the use of aggressive force between persons or peoples; and that all must be subject equally to said laws. (Having arrived at these requirements through the objective observations of human actions, we can now return to the earlier statement that the masked marauders throwing Molotov cocktails were acting "unjustly". To the extent that these actions are against people, they are objectively unjust. A discussion of the propriety of such actions with respect to "property" is purposely excluded from this article.) Given these limitations on the law, we are led to the (perhaps, not so) startling conclusion that nearly all laws on the books today are "unjust".

Who's still standing?

This morning I was reading a story on the Volokh Conspiracy about how a judge in Georgia has allowed a lawsuit challenging Obama's listing on that state's presidential election ballot. A sentence in the middle of the article caught my attention:

Similar challenges have generally been rejected on procedural grounds, such as on the grounds that plaintiffs lack standing to sue because they have no greater stake in the matter than any other citizen. Generally speaking, federal courts have concluded that in such cases where the plaintiff doesn’t have a particularized stake in the matter, the resolution even of constitutional controversies should be left to the political process and not to courts.

This reminded me of the Kucinich lawsuit against Obama claiming the latter's violation of the War Powers Act in sending forces to Libya in early 2011. This lawsuit was dismissed for a similar reason -- lack of standing:

Judge Walton held the members of Congress lacked standing to bring the challenge, as they had ample legislative means at their disposal to oppose the President’s use of military force.

I haven't read the decision in this case, but I suspect that the judge's decision rested, at least partially, on the "political question" doctrine. This is the idea that the judicial branch should "avoid inserting itself into conflicts between branches of the federal government" and that "some questions [are] best resolved through the political process". This strikes me as incorrect, as it should be justiciable as to whether or not the president's actions were in accordance with the War Powers Act (or whether that act is itself constitutional). But I digress.

The point is that if the government breaks the law (in a general enough way), it would seem that no one has standing to challenge that action. Say the executive branch eavesdrops on everyone's communications, in clear violation of the fourth amendment, and that this is readily provable and a potential court case is not subject to being tossed under the state secrets doctrine. It seems that the case would still be tossed under the theory that everyone is equally harmed/oppressed, so none have standing to challenge. Furthermore, Congess is powerless here (via the courts) for the same reason Kucinich was unable to stop Obama's action in Libya: Congress has "ample legislative means at their disposal to oppose the President", namely defunding and impeachment.

But defunding and impeachment are themselves political, not judicial actions. They require the votes of members that (may) have an interest in the outcome of these actions that is not necessarily aligned with upholding the constitution or the laws or even the interests of justice. The entire idea underlying the court system is that it is comprised of impartial, disinterested officials. (Whether or not this is true in practice is a separate matter.) The executive and legislative branches are explicitly not comprised of such people. If the court is unwilling to get involved, then we must resign ourselves to the idea that the law is whatever the majority of the Congress says it is (or fails to say that it isn't).

While this may be comforting to some, in that these officers are (in theory) the "people" themselves, democracy is no panacea:

But what kind of person runs for public office? Madison failed to foresee that even the so-called "separation of powers" could not restrain men forever. Entry into politics does not require any particular skill or morality. It simply requires some combination of money, connections, personality, and a desire to rule others, particularly the last one. In fact, that last reason is probably the main reason that anyone runs for office. The idea that the world would be a better place if was in charge is probably not foreign to anyone. To succeed in government, however, involves backroom deals and "compromises" ensuring that only the least moral and most willing to deal away their principles will rise to the top. Thus, government will ultimately be populated with the worst people in society, and it is only a matter of time before they decide to work together to turn their legal authority to use force on the people themselves.

It would seem that we are inexorably on a path to this end in which we will be ruled by the oligarchs in office and their benefactors or by the "people" both of which, in practice, believe that positive law is superior to and therefore trumps natural law. No matter which prevails, one thing is certain: it's not going to be pleasant.

Torture instead of prison

Leo Katz has been blogging over at the Volokh Conspiracy this week. He's written a book called Why the Law Is So Perverse, and Volokh is giving him the opportunity to pimp it by writing about subjects covered within it. Today, he posted an entry entitled The Problem of Voluntary Torture in which he lays out the following (imaginary) proposal:

Imagine the following proposal by a wild-eyed legislator for making our criminal justice system more efficient. “The point of punishment is pain,” he explains.”Obviously. Without pain, we don’t get deterrence and we don’t get retribution. But prison happens to be a very expensive pain delivery system. There is a much cheaper one which for some reason we haven’t really adequately considered. Instead of making a prisoner’s life moderately painful for a prolonged period of time, which is what prison does, why not just make it intensely painful for a very short period of time: a lot of pain, but for a short duration—that should give us as much retribution and deterrence as before but at a fraction of the cost.”

He then gives his own opinion of it:

I view the deal the legislator is suggesting we offer each prisoner as the quintessential win-win transaction. Everyone is better off. The prisoners (though only marginally so, to be sure) and society at large which now has to pay only a fraction of what it used to have to pay for deterrence and retribution. 

Nevertheless, like most other people, I would not for a moment contemplate seriously adopting the legislator’s proposal. The question is why?

In answering his own question, he assumes the win-win nature of the proposal to be a given and then argues that there are valid reasons for certain kinds of mutually beneficial arrangements to be prohibited including "force or fraud or incompetence or bad effects on third parties", none of which, he admits, are applicable in this case. Ultimately, he concludes "that some other as yet unidentified reason must be at work here". He, of course, will explain this in another post or, for the impatient reader, already does in his book which the reader is invited to purchase.

First, Mr. Katz' belief that this proposal, despite his reticence to implement it, is a win-win is spectacularly incorrect. Given his starting point, the current prison system, it's not hard to see why he went wrong. Society already already pays a great price to imprison criminals. According to the Bureau of Justice Statistics, the U.S. spend almost $75 billion per year to house inmates. States vary widely on costs, but with the prison population hovering a little under 3 million, the average is just over $23,000 per inmate per year. Just imagine if instead society tortured these individuals mercilessly for a few days or a week or even a month! If the costs scale linearly, then society would pay less than $2,000 per inmate per incarceration, and surely torture would provide enough deterrent to keep prisoners from committing their crimes again.

The obvious problem with this is that torture is not simply a physical act that ends when the pain subsides. It is also has psychological components, and both of these have long lasting effects. Nor are these effects limited to the recipients of this torture. Imagine being an employee at a facility that offers this type of "correction". It would be like watching the Saw movies back-to-back-to-back for at least 8 hours a day, 5 days a week, only the characters are real people, and there is no way to turn off the movie. Employees of such a facility would, in the end, suffer just as much -- probably more -- than the prisoners themselves. Imagine further those actually charged with carrying out the torture as a regular profession. We would literally have to find the worst of the worst of society -- worse than the prisoners themselves -- train those people to become perfect in their craft, and then pay them to carry out the most heinous acts that one human being could commit against another. That, I submit, is not a society.

Exposing the sheer insanity of this proposal has probably been a waste of time given that even Mr. Katz is against it. But the fact that it is even brought up is incredibly ironic, given the reaction to the idea of torturing prisoners. Mr. Katz, like the rest of the population, doesn't fully comprehend the nature of the prison system even though he mentions it a number of times in his post. It is so ingrained in most people's minds that they don't even see it. Look back to the "wild-eyed" legislator's first words:

“The point of punishment is pain,” he explains.”Obviously. Without pain, we don’t get deterrence and we don’t get retribution.

The purpose of the prison system is to punish, and "the point of punishment is pain". If we accept this premise, then society is already engaging in torture of a more mild variety. A variation on an old joke springs to mind:

A: Should society imprison criminals?
B: Absolutely.
A: Should society torture criminals?
B: Absolutely not; what kind of society would that be?
A: We've already established that; now we're just seeing how far it will go.

Back to the legislator's words, the point of punishment is pain and the point of pain is deterrence and retribution. Deterrence is well and good, but the fundamental problem with the prison system is the retribution. When someone commits a crime, the justice system metes out retribution. Who benefits from this retribution? Only the justice system -- and, to an extent, the prisoner -- benefits. The victim doesn't benefit in any tangible way. Whatever damage may have been done is not repaired, nor is the victim compensated (over and above the actual damages) for the  "inconvenience" of being victimized. Nor does society benefit since society has to pay for the trial and incarceration of the criminal. Furthermore, it has to deal with the effects of prison on the criminal (no marketable job skills, inability to function in the "real world") when the criminal has finally served his/her time and is released. But the justice system benefits as money must be poured into it to house an ever growing number of inmates. And while incarceration is certainly no picnic, the incarcerated "enjoy" 3 meals, a bed, and a roof over their heads at the victims' expense.

What if, instead, the criminal justice system focused on restitution instead of retribution? First, a number of crimes would simply disappear. If police picked up a prostitute, to whom would he/she pay restitution? In order to answer that, we would have to pinpoint the damages caused of which there are none. The same goes for someone getting high in his garage. Second, victims, instead of the justice system would be compensated for the commission of a criminal act. This is obviously straightforward in the case of crimes involving money or things that can easily be assigned a monetary value. The victim is repaid his loss plus some extra as compensation for the inconvenience and to serve as deterrence of future crime on the aggressor's part. It seems less straightforward in the event of non-monetary damages like physical violence, but this should not be so. Society has already decided how long a prison sentence should be based on murder, manslaughter, physical violence, etc.; it is not a far leap to think that money could be substituted for time. And what of failure to abide by a sentence? Imagine if when someone refused to obey the law and by extension punishment for breaking it, society simply refused to extend the protections of the law to that person? This is what a criminal justice system in a voluntary society, one without an entity granted the legal ability to use force might look like.

When does it end

Right now, I've got 18 tabs open on my Internet browser (I use Firefox in case you're interested). This is a real rarity for me. I never have more than 3, possibly 4, open for any length of time. One is the window in which I'm typing this entry, one is iGoogle, one is Facebook, one is a news story about Timothy Geithner "extending" the deadline by which the U.S. Congress "must" raise the debt ceiling, and the other 13 are news stories devoted to Osama bin Laden. I first found out about bin Laden's death when my wife received a text message from her sister who had apparently been watching the news. I received the same text message a few minutes later. (Good work AT&T, delivering text messages to two phones 5 feet away from each other 5 minutes apart.) I have to admit that my first reaction was: so what?

It was immediately obvious to me that no troops would be coming home. No civil liberties would be restored. We would all continue to be forced to take our shoes off and be molested at the airport. I even commented sarcastically to a friend of mine: "Awesome, so the war on terror is over and we all get our liberties back?" In reality it would seem that just the opposite has turned out to be true. Secretary of State Clinton was quick to "reassure" the public that "battle to stop al-Qaeda and its syndicate of terror will not end with the death of Osama bin Laden." Moreover, major government officials and every major news source and pundit has told us that we are in even more danger now because of the possibility of retaliatory attacks. The NBA took the extra step of mandating metal detectors at playoff games. So, killing bin Laden made us less safe? If that's the case, then logic would dictate that he shouldn't have been killed.

After confirming my sister-in-law's text message, we changed the channel back to our "regularly scheduled programming". Before going to bed, we turned again to the news to see what, if any, additional information might be available. We were treated to clip after clip of video showing people dancing in the streets in places like Times Square and the White House. I was disgusted to see the very same people who denounced people who danced in the streets while burning American flags after the death of one of our soldiers acting in the exact same manner. The news feed on my Facebook account exploded that evening with people cheering on our government and our military for summarily executing another human being.

In dying, Osama bin Laden showed us that we're really not so different from the very people that we deride as war-mongers and who we believe are incapable of a peaceful existence.

He taught this country the consequences of operating an open, free society. Literally, he showed Americans the price of their liberty, how many of their principles they'd be willing to cast aside, and how quickly they would do it.

In other words, bin Laden showed American exceptionalists how unexceptionally they behave when faced with horrors most older nations have endured.

The writer is referring to our weak-kneed acquiescence to government intrusion on liberty here in the U.S., our paranoia at the thought that a terrorist is hiding around every corner, and our rampant xenophobia. His point is equally applicable to our reaction to the news of bin Laden's death, though. The overwhelming reaction, that of proclaiming America's strength and celebrating our actions in the streets, was no different than that of the people you see in other parts of the world dancing upon hearing the news of the killing of American soldiers.

I woke up the next morning to hear people on the radio explaining that it's different when American's celebrate. You see, Osama bin Laden killed innocent civilians on September 11th, 2001. Therefore he is evil, and not only was his killing justified but morally right. On the contrary, our soldiers are overseas doing good work, and when they are killed, that is wrong. Never mind that the "rebels" in Afghanistan see us as an invading and occupying force; never mind that America regularly kills civilians as part of its eternal war on terror; never mind that America locks up and tortures "militants", denying them any sort of access to a justice system to sort out their guilt or innocence; never mind that America has "peacefully" killed hundreds of thousands, if not millions, via sanctions of various kinds. Everyone wants to point to 9/11 as if bin Laden started this fight and America's hands are clean, but it's been going on for much, much longer. All of those American actions I just cited have been and continue to be used as justifications for Al Qaeda's actions. And regardless of how it started, it is only escalating.

But, there are likely those that remain unconvinced that America has any responsibility for the fight in which it now finds itself, but, nevertheless, it must see it through. That is, they believe that "we didn't start the fight, but we're going to finish it." So then, when does it end? If one truly believes that we are going to finish it, then the answer would be "when we've killed or captured all of the terrorists". As I pointed out, though, capturing terrorists and refusing to bring them to justice -- for those that have forgotten, justice means a trial in a court of law, not vigilante killings or indefinite detention -- or killing them, especially when unarmed, tends to drive more people into the fight. This so-called solution actually perpetuates the problem. Yet, it seems to be the solution America is intent on carrying out.

Attorney General Eric Holder sat in front of the U.S. Senate and had this to say about the whole affair:

The operation in which Osama bin Laden was killed was lawful. He was the head of al-Qaida, an organization that had conducted the attacks of September 11th. He admitted his involvement and he indicated that he would not be taken alive. The operation against bin Laden was justified as an act of national self defense.

Ah, national defense. Of course. I wish Mr. Holder would have gone on to explain exactly what our military was defending when it shot and killed an unarmed man. Apparently, bin Laden resisted, but I find it hard to believe that a team of highly trained and very well armed men were unable to subdue a frail, old man in regular need of dialysis, without killing him. Jeffrey Toobin explains that the U.S. had to kill bin Laden because messy details like whether bin Laden would be given a civilian or military trial, who would defend him, and where his trial would be held are just too difficult for us to sort out. That's right; when the government has a "difficult" problem on it's hands, killing people is the only way out. I'm not sure why that same principle didn't apply to Saddam Hussein or Khalid Sheik Mohammed.

But let me return to the idea of national defense brought up by Mr. Holder. Exactly what are we defending with our actions overseas? The knee-jerk answer is always "freedom". It's hard for me to believe that anyone can still respond this way with a straight face; I'm chuckling to myself a bit just writing this. Even if it were true, though, what will be left should we ever finish fighting this war on terror? We've abandoned the idea of innocent until proven guilty. We've abandoned the idea that people are entitled to a trial before being assessed any sort of punishment (including death). We've abandoned the idea that our government is subject to the same laws as the people. If the war on terror, by some miracle, ever does come to an end, we will find that we were busy throwing away our freedom, all the while claiming that our military was overseas fighting for it.

The truth is that we're not fighting for freedom. We're fighting for empire. We're fighting to bring the rest of the world under our control. Osama bin Laden understood this all too well. "We, alongside the mujaheddin, bled Russia for 10 years, until it went bankrupt," he explained.

The campaign taught bin Laden a lot. For one thing, superpowers fall because their economies crumble, not because they’re beaten on the battlefield. For another, superpowers are so allergic to losing that they’ll bankrupt themselves trying to conquer a mass of rocks and sand. This was bin Laden’s plan for the United States, too.

And that returns me to my original question: when does it end? I can't say for sure, but my money's on "soon". As for the "how" question, I'm not so sure that we're not about to follow in the Soviet Union's footsteps and those of every other major empire throughout history. Those who fail to learn from history are doomed to repeat it.

Disappointing court cases

The Volokh Conspiracy has more in depth write-ups for both cases.

In the first, in Illinois, the ACLU has sued the state to get injunctive relief from the Illinois Eavesdropping Act so that citizens may record police officers in order to deter and detect abuse. The court ruled against the ACLU saying that the first amendment does not protect recording in this case. I have a hard time finding fault with the court's ruling, such as it is. I don't really see the connection between recording and free speech. What's disappointing to me about this, though, is the state's unwillingness to allow its agents to be recorded in their official capacity. I often hear the argument, "if you're not doing anything wrong, then you have nothing to hide." Why doesn't the same apply to the state?

In the second, a court in Florida upheld a police search as legal despite its concerns that the search was not consensual as the police claimed and, even more damning, that the police were outright lying about the circumstances under which the search occurred. Here is the court's characterization of the police's testimony:

On the pages of the record, the story told by the police is unbelievable—an anonymous informant gives incriminating information; police surveillance uncovers no criminal conduct; the defendant is “nonchalantly” and “casually” approached by the police on the street; the defendant cooperatively leads the police back to his apartment to obtain his identification and invites the police inside, where a detective sees contraband in plain view, a fact certainly known to the defendant when he issued the invitation; after his arrest, the defendant tells the police about all the hidden drugs in the apartment.

Yet the appellate court still held the search to be legal, affirming the lower court's ruling. If one can't find justice in the courts, where can one find it?

No good deed goes unpunished

Last July, an Aurora, CO man was on a road trip to Montana when he and his family stopped in Casper, WY for gas. The gentleman, William McCreary, left his wallet on top of the gas pump.

Another customer at the Common Cents convenience store found the wallet.

Deborah Heinrich said she opened it to find who it belonged to and then started making phone calls.

"I left messages at his home phone after I found his number on the Internet," Heinrich said. "I called his bank and a Harley Davidson dealer listed on a business card in his wallet."

Unfortunately, she also contacted the police for help in tracking down the owner. When Mr. McCreary, the man who lost the wallet, realized he'd forgotten it, he returned to Casper. When he couldn't find it, he filed a police report. The police then called Ms. Heinrich and asked her for the wallet. She declined stating that she would hang onto it until she heard from the owner himself what he wanted done with the wallet. At this point the police became aggressive and demanding and, at no time, did they inform Mr. McCreary of the woman who had his wallet. Ultimately, they arrested and hauled her into court for "interference". Her first trial ended in a mistrial and a second trial is scheduled for next week in which, if convicted, she could face a $1,000 fine and a one year in prison.

People can and, I'm sure, will debate the merits of the decision not to simply give the wallet to the police. I think the police were doing a bit of interfering themselves, but that's not my issue in all of this. My issue is that the woman now faces a year in prison and a sizable fine essentially for trying to return Mr. McCreary's wallet without the police's help. Even if one thinks that the woman was in the wrong for refusing to give the wallet to the police, what possible reason is there for her to face punishment? Her crime was trying to do the right thing in a manner other than that prescribed by the state. This is simply a case of the state wanting to show her (and everyone else) who is "in charge."

Even more troubling to me is the implication at the end of the article that Ms. Heinrich bears responsibility for this whole mess. It seems to me the only thing she did wrong was to hurt the feelings of the local police department who would have been denied kudos from the owner of the wallet if she had been allowed to return the wallet herself. In the end, the man who lost his wallet got it back, the police got their praise from him, the taxpayers are going to shoulder the expense of at least two trials (including bringing out Mr. McCreary from his home in Colorado to testify), and the woman faces prison time for being a good Samaritan.

Justice, indeed.