Tuesday, January 27, 2009

With all the best intentions

Liberty is, by its nature, an ephemeral thing. Perfect liberty cannot exist, for mankind by its nature requires law, justice, and some guidelines to work and exist. The Code of Hammurabi, early on, was the earliest recorded and publicly displayed work of law.

Law itself is nothing more than a set of rules. It makes a set of societal boundaries, and backs them up with the 'force of law' which is the punishment system. Law, in the purest sense, is something that should neither respect any person, nor disrespect them. The person itself should have no reflection nor bearing in the law, and the mighty, as well as the poor, must be held to the same standard. This is called 'justice'.

There is another part of justice that is often ignored. This part of justice is mercy. While law is a blind, inflexible blade, mercy is the hand that stays it from the neck of the accused. It is the decision that perhaps the theft of a loaf of bread is not deserving ten years in prison, that the unlawful theft of a fire extinguisher is not worthy of a jail sentence when used immediately to fight a fire.

This part of justice is implemented in the jury. While the judge lays for the facts, and the law, and the jury judges both fact and law, the rule of law can be blunted if it goes too far.

All men are equal under the law, for were they not, how long would it be until those who made law chose to make laws in their own favor? Certainly no man could deny that it would be advantageous for a man to take a role making law for his own benefit.

Laws must affect all people, or none. If this case is not true, if even one person is above, or beneath the law, slavery and tyranny exist.

The law should be introspective as well. If a law exists that contradicts the founding core of the law, then that law must fall. No branch can contradict the trunk. No trunk can contradict the root. The root is the statement of principles, and the agreement upon which the law stands.

If a branch of the law grows more heavy than the roots can bear, the tree will fall. If the branch grows stronger than the trunk can bear, it will be torn asunder.

Any abuse is abuse. Any tyranny is tyranny. It matters not one whit if the person assaulted is one person, or a million. It is of equal weight. When the excuse is made for the abuse of any one person, it is easy to expand it to two... then to four. Next comes eight, sixteen, thirty-two. When does it become abuse? Can we not use the same insidious logic to expand it to all men?

Law and speech are intricately intertwined in this country. The freedom of speech, and of the press was not simply limited to the news media, or 'press' as they prefer to style themselves, it was for all men, all women, all persons capable of having and setting out a viewpoint. It was so you or I could stand out and say whatever we felt, so long as it was not directly, willfully, and maliciously damaging another human being. We could be wrong, if we chose, and still exercise this right.

But what happens if we decide a single idea is too 'subversive' or 'divisive' to put forth? What happens if the law prohibits even one person a single type of speech or communication?

Certainly the banning of advocating for hate crimes could not be a bad thing... but could it? Should we hold the writer responsible for crimes which he has not committed, or those that others may or may not commit? Simply because a writing, or a word is irresponsible should never make it illegal, for who defines irresponsibility, or danger?

It is easy to excuse new acts, new speech, new thought when the precedent is set. An example would be: The banning of controversial or adversarial speech, or speech with religious overtones, speech that 'offends someone' or is 'objectionable'.

This is the banning of opinion by writ. Certainly, though we cannot abide without law, we cannot equally abide without speech. Who are these people when something is 'offensive' to say we cannot say it? Who are they to 'object' to what we say, rather than making their own opinion heard, to simply say that we cannot say it?

A crime act requires the mens rea, the criminal mind, as well as the actus rea, the criminal act. Is there a criminal mind in speech? There may be, but is the act criminal in and of itself?

Keeping from offending others is a noble intention, but what is offense? Where do you draw the line? Certainly if speech can be a crime for one thing, it can be a crime for others. A step here, a scratch farther there, a leap in another law... and Orwell's worst nightmare begins.

Take torture. Certainly we could advocate for torture to save lives. There is no way, however, it could be right to do so. It is easy to excuse from the comfort of your homes, but could you excuse it if you were required to undergo the same things as the tortured?

If your child were tortured?

Certainly we could attempt to protect others from themselves, protect society from classes of individuals. Is such targeted legislation wise or legal? If an act is made into a law, and that law was outside the constitution, according to our own founding fathers, it is neither a law, nor anything binding, for the unconstitutionality of such a law was from the beginning of the law, not from the date it was found unconstitutional. The trunk rejects the branch, which finds itself without support.

Does it matter if one person is a tyrant, or ten, or a hundred, or a thousand? Does the weight of tyranny still not burden you no matter how many tyrants there are? If six million people decided that one person deserved not to live, would it be any more right than if six million chose to remove six hundred thousand? Or if that one person decided to kill six million?

Democracy is ever a tool for tyrants. The nature of a republic was designed to restrain the influence of the great masses, to restrain the impulses of a society easily enflamed into action. It was to ensure that the minorities were as protected as the majorities, and that there would be no greater privileges in any case, rich, poor, majority, minority, young or old, healthy or ill, legislator or ditch digger alike.

Democracy, by its nature, has one fatal, fundamental flaw. A majority could vote a minority out of its rights. If the majority voted one or two people out of being able to vote, then certainly, more 'unfit' people should be excluded from voting.

As time goes on, less and less vote, and the people remaining ultimately devolve into those with the only power. The measure of tyranny is the vote.

But there are other measures. The writ of habeas corpus, for example, the right to challenge the law to discover why you are being held, and challenge that imprisonment. The writ of quo warrantio, demanding where it is in the law that such power was granted. The writ of Ultra Vires, declaring the power to be outside of the law's grant. The right of jury trial.

One by one each of these has fallen. More people reach out in the darkness for something to hold onto. We seek protection from the institution we created, in part, for that purpose, forgetting that it has no powers which we do not grant it. The power to protect is equally the power to subdue and destroy.

It does not matter who you are, you have the right to not be treated in an arbitrary, or an inhumane manner. You have the right to express your opinions. It does not matter what those opinions are, or how objectionable I find them, it is your right to have them and express them. It is equally your right to stand up and say, 'these conditions are intolerable' as it is to stand up and agree with them.

The criminal justice system has no need for those powers. They are already granted, and stored within private law, the civil law system, for dealing with those who engage in libel or slander.

The simple act of offending another does not give the other person the power to stop the offense. No person has the right, nor the power, to shut someone up because they do not agree with them.

There was a name for this activity... the inquisition. The dark ages. Torture, and the rule of law never mix. Stifling speech destroys the rule of law as well. Stifling the freedom of movement also destroys the rule of law. Inflicting deliberate physical, emotional, or mental pain is never justified.

The moment you accept that it is justified, you are saying that it is equally all right to torture yourself, or your loved ones. Anything you authorize to be done to others... you have authorized ti to be done to yourself, and those you love.

The law is, and remains blind... and the hands that guide that law should be yours, not the hands of politicians turning the law into a tool for their own benefit.

Too often, with all the best intentions, they pave the road to hell.

1 comment:

MonsterMart said...

Well done, Tried.

When strong emotions are raised, humans so quickly surrender the deeper perspectives you remind us of here; the ability to put ourselves in the shoes of those who have offended; to think of All peoples and not just One, to calmly act out of reason, not fear. Our liberties must be protected, not be thrown out in pursuit of vengeance.

Thanks for this inspiring piece.