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Wednesday, October 07, 2009  

Justice: It's a Pain in the Backside

In the recent New Yorker profile of Michael Ignatieff, the Canadian Liberal Party leader and scholar of Isaiah Berlin argues for liberty against equality by quoting Berlin's dictum that liberty is a cold kind of virtue. It promises non-compulsion rather than any positive notion of a good life. Like it or not, there is some truth to this notion, in practice if not in principle.

It seems to me that the same thing can be said of justice. We depict Justice as blindfolded to express an appealing kind of impartiality--that she will not make invidious distinctions or condemn the innocent for their race, class, or unpopularity. But there's an unappealing side to impartiality, too. It means, if it means anything, that she brings her sword to bear on the friend, the co-partisan, the colleague, the classmate, the ideological fellow-traveler.

This is something I've been considering as I see a rash of what I can only call legal Calvinball going on in American elite circles. Should we investigate the decisions and decision-makers who legalized torture after the terrorist attacks on New York and Washington? No, the gray heads agree, that would be criminalizing politics. Should we then investigate those acts and actors who went even beyond the torture legalized? No, that would have a "chilling effect" on the CIA. Should John Ashcroft be legally liable for detaining people without communication, charge, or warrant? No, because we don't want our leaders to consult a lawyer every time they do something--like lock someone up in flagrant violation of Constitutional provisions--that might be interpreted as "depriving a person of civil rights."

One wonders, hearing this endlessly invoked Mulligan Theory of legal accountability, what the purpose of laws against torture, indefinite detention, and the like is supposed to be. The blindness and rigor of the law are meant to have a chilling effect on people who want to find exotic ways to abuse other human beings. They are meant to bring decision-makers to account, even when they acted in good faith, if they exceeded what the law allows.

To put it another way, imagine making the argument that owners of a front business for drug money shouldn't be indicted because it would have a chilling effect on inner-city entrepreneurship. In fact, you hear arguments vaguely similar in cases of jury nullification, in which the broader interests of the community (typically a low-income minority community suffering from extravagant incarceration rates) are held above the enforcement of the law. But those cases are rare, controversial, and by definition come in the context of an indictment and prosecution.

What is so strange, and so impossible to imagine when you change the variables, is the tacit agreement of a whole class of decision-makers that the law is just moot when it comes to people like them. I would be ashamed of myself to claim that I would not take an action I believed necessary in an emergency for the sake of the nation because I was afraid of a lawsuit after the fact. What kind of person is willing to legalize torture but not willing to face the (comparatively trivial) consequences of legalizing torture? Someone, I guess you could say, who has no honor--no sense that power must render an account of itself, that failure, however well-intentioned, requires a penalty, that the law must take its pound of flesh even from our own pasty bureaucratic gut.

Justice is, or should be, a rather cold virtue. It can allow only minor distinctions between a crime committed in good faith by a "good" person and another kind of crime. If it doesn't do that, it's not there.

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posted by Benjamin Dueholm | 3:35 PM
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