Posts Tagged ‘Rule of law’

Vladimir Putin and ‘the dictatorship of the law’

June 17, 2014

2014-03-07-PUTIN

When Vladimir Putin first ran for President of Russia in 2000, he promised to establish the “dictatorship of the law.”  That would have been a great achievement if he had managed it.

What I take this to mean, and I think what most Russians took it to mean, was the opposite of the principle of the “dictatorship of the proletariat.”

The idea of the “dictatorship of the proletariat” in the old Soviet Union was that there need be no limit on Communist Party power because that power was supposedly exercised on behalf of the working class.   Any idea of holding the Communist regime accountable for its actions was treated as an attack on working people

The idea of the “dictatorship of the law” is just the opposite—that everyone, high and low, is subject to the law.   It is that nobody is too powerless not to have the protection of the law, and nobody is too powerful not to be subject to the law.

Putin would have been a great statesman if he had achieved this.  But the reality that Russia is run by patronage networks.   The system is set up so that it is impossible for the best-intentioned honest citizen to live within the law.  What matters is whether you offend powerful people, and whether you know other powerful people who can protect you.

Last week I read the following description of the system in the London Review of Books, by Peter Pomerantsev, a documentary film-maker who worked in Russia.

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Competition: its benefits and its pitfalls

January 7, 2014

four-arenas-competition1Science fiction writer David Brin wrote recently society works best when there is competition—competition in the marketplace to make the best products at the lowest price, competition in elections to see which politician can best serve the aims of the public, competition between scientists to make new discoveries and argue for new theories, and competition between lawyers to make sure all sides of a case get a fair hearing.

That is a great ideal.  The problem is to make it work as intended.

A society such as he describes is something new in history.  Most complex civilizations in history were organized from the top down—with government monopolies, hereditary monarchs, religion (or political) dogma and no such thing as impartial law.

Jonathan Rauch in his 1992 book, The Outnation: A Search for the Soul of Modern Japan, noted the contrast between the USA and hierarchical Japan:

It was [John] Locke, followed by Adam Smith and others, who first built the theory of liberal social mechanisms – public processes, like voting or trading or performing experiments, in which no one gets special personal authority (no kings, no dictators, no high priests or oracles) and no one in particular gets to control the outcome.  In the liberal scheme of things, no matter who you are, your vote is just a vote, your dollar is just a dollar, and your experiment had better work when anyone else tries it.  Moreover, there is no last election, last trade, or last hypothesis.  America is John Locke’s country.

The problem is how to create the conditions in which competition works for the benefit of society.  As Brin noted, the kind of competition he described can take place only within a legal governmental framework that gives protection against fraud and force.  To say that rules and regulations are incompatible with the free market is the same as saying that referees are incompatible with basketball.

Rules and regulations do not work unless a majority are willing to obey them.  Unenforceable laws are not merely useless, they are harmful.   Laws are no substitute for a basic ethic of honesty and fair play.

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The emperor doesn’t care that he has no clothes

December 19, 2013

A Malaysian scholar, Rahinal Ibrahim, is suing the U.S. government to be removed from a no-fly list and to be told why she was put on the list to begin with.  But the government refuses to tell her whether she is on such a list.  The judge and her lawyer, who was given a special security clearance, have been told, but they are forbidden to pass the information on.  Even the verdict may be kept secret from her.

And a key witness, an American citizen, who happened to be out of the country, was denied permission to fly back to the United States to testify.

Are officials of the Department of Homeland Security are so insulated from public opinion and common sense that they do not realize how ridiculous this is?  Or do they have such a sense of power that they don’t care whether what they do makes sense or not?  If you are forbidden to fly, you know that you are on a no-fly list, so why pretend that it is a secret?

It is not just that the emperor has no clothes.  The emperor doesn’t care whether people notice he has no clothes or not.

Rahinal Ibrahim

Rahinal Ibrahim

One of the key concepts of a free government—more fundamental that democracy or the Bill of Rights—is the idea of the rule of law.  Life can be tolerable even under a dictator or king if you can be safe so long as you obey the law.

What makes a totalitarian government different from an authoritarian government is that under the rule of a Stalin or a Hitler, it is impossible to obey the law—because you can’t survive without breaking the law, or because the laws are contradictory, or because the laws are secret, or because people in authority can exercise power regardless of law.   Under totalitarian rule, everybody is guilty or potentially guilty, and only escape punishment because of the indulgence of the government.

The USA operates under the rule of law for most people most of the time.  But, as this incident shows, the rule of law does not operate for all people all the time.  What can be done to someone of Muslim heritage with a dark skin can be done to those of us of Christian heritage with white skins, and there are worse things that can happen than being on no-fly lists.

Click on In Bizarre No-Fly List Trial, Even the Verdict Might Be Secret for details by David Kravetz for Wired.  Hat tip to Jack Clontz.

Gun laws and psychiatric surveillance

January 19, 2013

If you live in New York state and go to see a therapist about anger management problems, there is a possibility you may lose your deer rifle and go into a police data base of potentially dangerous people.

New York’s new gun-control law requires therapists and social workers to report to county mental health directors whether they believe a patient is dangerous.  That information will go into a state data base, which would be used to confiscate gun owners’ weapons.

mental_health-220x120I would not go to a therapist if I did not think I could trust him or her to keep what I confided in confidence.  I would not trust a therapist if I thought the therapist was going to report what I said to the police.  The unintended consequence of such a law is that people most in need of therapy will not seek it.

Human beings have free will.  That means human behavior is unpredictable.  But New York state law puts the burden of predicting human behavior on therapists, but does not allow them to use their own judgment as to what to do.  A therapist has options if a patient seems dangerously violent—to increase the patient’s medications, to notify people who may be at-risk, to start proceedings to have the patient committed to a mental institution and, yes, to notify the police if that seems necessary.

Simply by the law of averages, someday somebody who is in therapy is going to commit a violent crime with a gun.  No therapist wants to be in the position of not having notified the authorities in advance that the person is dangerous.  The incentive will be to notify the authorities even if there is only a slight possibility of danger.

A conservative friend of mine pointed out that the same incentive applies to prosecutors and judges, and is nothing new.  But prosecutors and judges have to justify their decisions by actual evidence.  Therapists make a subjective judgment and don’t have to prove they’re right.

Even if there were an accurate predictive science of psychology, as in the movie and Philip K. Dick short story “Minority Report”, there still would be a problem in denying you of your legal rights not because of what you had done, but because of what someone thinks you might do.  There are people in prison who have served their sentences, but who are not released because some psychiatrist thinks the person will be a recidivist.

The basic principle of liberty under law, as affirmed in England’s Magna Carta of 1215, the English Bill of Rights of 1688 and the U.S. Constitution in Article One, Section 9, is that the government can punish you only if you have broken a law and that you have a right to know the specific law you are accused of breaking.  Another principle of liberty under law is presumption of innocence.  The prosecution has to prove you have broken the law.

When we look at the old Soviet Union, and how psychiatry was abused to punish political dissidents who had broken no law, we ought to be wary of making therapists agents of the police.

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Click on NY Gun Law May Discourage Mental Health Therapy for Those Who Need It for a report by CBS News.

Free speech and fast food chicken

July 27, 2012

If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought of those we hate.
    ==Oliver Wendell Holmes Jr.

Mayor Rahm Emanuel of Chicago said he will try to prevent the Chick-fil-A fast-food restaurant chain from expanding in their cities because they disapprove of the opinions of Chick-fil-A President Dan Cathy, a Southern Baptist who is strongly opposed to gay marriage.

A Chicago alderman, Joe Moreno, said he will try to prevent a Chick-fil-A restaurant from opening in his ward, and Mayor Emanuel said Moreno has his support.  Boston Mayor Thomas Menino said Chick-fil-A is not welcome in Boston.

Nobody has accused Chick-fil-A of breaking any laws.  Nobody has accused Chick-fil-A of discriminatory hiring practices.  Nobody has accused Chick-fil-A of refusing service to customers.  But Mayor Emanuel thinks he has the right to use the power of government to punish a business because its CEO expressed an opinion he doesn’t agree with.

People who favor gay marriage are not going to change anybody’s minds by trying to repress people with whom they disagree.  Mayor Emanuel’s action serve only to harden battle lines and lock people into their previous positions.  Opponents of gay marriage, including Mike Huckabee and Rick Santorum, have rallied to Dan Cathy’s support.  Very likely Chick-fil-A, whose business is concentrated in the South, will have a net gain in business as a result of the uproar.

Now I don’t agree with Dan Cathy myself.   I don’t think his opinions should go un-contradicted.  And anybody who is offended by his views is free to patronize some other restaurant.   That’s different from government persecution.

If you really believe in free speech, you believe in it for everyone.  If you make exceptions based on your emotions, why should anybody take you seriously?  If some mayor somewhere tries to close a business because its owner is for gay marriage, Rahm Emanuel gives him an excuse to accuse his opponents of being hypocrites.

Somebody pointed out that, until a few months ago, Barack Obama took the same position as Dan Cathy—that the marriage relationship only pertained to a man and a woman.  Would President Obama have been unwelcome in Chicago and Boston?

Click on Rahm Emanuel’s dangerous free speech attack for a good post by Glenn Greenwald, a civil liberties lawyer who is gay himself.

Click on In Defense of Chick-Fil-A for a good post by Adam Serwer of Mother Jones.  He quoted John Knight, director of the LGBT (lesbian gay bisexual transgendered) rights project at the Illinois branch of the American Civil Liberties Union, as saying, “We think there’s a constitutional problem with discriminating against someone based on the content of their speech.”

Click on Don’t Fil-A the First Amendment for the view of Scott Limieux of The American Prospect.

Click on My evolving position on gay marriage if you’re interested in my personal opinion on this subject.

Which of us is naive?

May 30, 2012

A friend of mine thinks the government should be unconstrained in killing, imprisoning or torturing terrorists and enemies.

He thinks I am naive to want the government to observe due process of law or any Constitutional, legal or ethical limits.

I think my friend is naive to think that the government’s unconstrained power will always be used against people he thinks of as terrorists and enemies, and never against himself or people he cares about.

“What are we defending?”

December 1, 2011

The following by Matt Taibbi in Rolling Stone is exactly right:

… When we abandoned our principles in order to use force against terrorists and drug dealers, the answer to the question, What are we defending? started to change.

The original answer, ostensibly, was, “We are defending the peaceful and law-abiding citizens of the United States, their principles, and everything America stands for.”

Then after a while it became, “We’re defending the current population of the country, but we can’t defend the principles so much anymore, because they weigh us down in the fight against a ruthless enemy who must be stopped at all costs.”

Then finally it became this: “We are defending ourselves, against the citizens who insist on keeping their rights and their principles.”

What happened at UC Davis was the inevitable result of our failure to make sure our government stayed in the business of defending our principles.  When we stopped insisting on that relationship with our government, they became something separate from us.

And we are stuck now with this fundamental conflict, whereby most of us are insisting that the law should apply equally to everyone, while the people running this country for years now have been operating according to the completely opposite principle that different people have different rights, and who deserves what protections is a completely subjective matter, determined by those in power, on a case-by-case basis.  … …

The state wants to retain the power to make these subjective decisions, because being allowed to selectively enforce the law effectively means they have despotic power.  And who wants to lose that?

The UC Davis incident crystallized all of this in one horrifying image.  Anyone who commits violence against a defenseless person is lost.  And the powers that be in this country are lost.  They’ve been going down this road for years now, and they no longer stand for anything. … …

Bravo to those kids who hung in there and took it.  And bravo for standing up and showing everyone what real strength is.  There is no strength without principle.  You have it.  They lost it.  It’s as simple as that.

Click on UC Davis Pepper-Spray Incident Reveals Weakness Up Top to read Taibbi’s whole article.

Hat tip to Glenn Greenwald.

[Update 12/2/11]  Click on About Pepper Spray for a report on its chemistry and toxicology.  Hat tip to The Browser.

Robert Bolt on the rule of law

October 3, 2011

The following is from Robert Bolt’s 1960 play,  A Man for All Seasons.

Robert Bolt

WILLIAM ROPER: Arrest him.
SIR THOMAS MORE: For what? … …
MARGARET MORE:  Father, that man’s bad.
THOMAS MORE:  There is no law against that.
ROPER:  There is! God’s law!
THOMAS MORE:  Then God can arrest him. … …
ALICE MORE: (exasperated) While you talk, he’s gone.
THOMAS MORE:  And go he should, if he was the Devil himself, until he broke the law.
ROPER:  So now you’d give the Devil the benefit of law!
THOMAS MORE: Yes.  What would you do? Cut a great road through the law to get after the Devil?
ROPER:  I’d cut down every law in England to do that!
THOMAS MORE:  (roused and excited)  Oh? (advances on Roper) And when the last law was down, and the Devil himself turned round on you—where would you hide, Roper, the laws all being flat? (he leaves him)  This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—d’you really think you could stand upright in the winds that would blow then?  (quietly)  Yes, I’d give the Devil himself the benefit of law, for my own safety’s sake.

I love those lines, and I loved the play.  I saw both the stage and movie version, and liked the stage version better.  I think Robert Bolt’s Thomas More character is a great example of the way to live, even though he talks like a 20th century agnostic such as Bolt rather than the 16th century Catholic that he was.

Click on Bolt, Robert Oxton for Bolt’s entry in the Oxford Dictionary of National Biography.

Daniel Schorr on Nixon’s enemies list

December 27, 2010

My friend Anne e-mailed me a link to an article about how President Richard Nixon ordered the FBI to investigate CBS reporter Daniel Schorr, who was on his “enemies list,” and how they were unable to dig up any dirt about him because he led such an exemplary life.  Click on Nixon Era Probe to read it.

The story is a tribute not only to Schorr, but to the integrity of the FBI investigators.  They knew what was wanted, and yet they declined to shade the truth.  The most striking thing about President Nixon’s “enemies list” was how harmless his enmity was.  The worst he could do was order tax audits.  Being on the “enemies list” was more a badge of honor than something to fear.

Adlai Stevenson once defined a free society as a society in which it is safe to be unpopular.  The Schorr episode  shows what it means to live under the rule of law, in which nobody in power can do anything to you so long as you commit no crime.

“No Bill of Attainder, no ex post facto Law…”

December 9, 2010

The US attorney general, Eric Holder,  has announced that the Justice Department and Pentagon are conducting “an active, ongoing criminal investigation” into the latest Assange-facilitated leak under Washington’s Espionage Act.

Asked how the US could prosecute Assange, a non-US citizen, Holder said, “Let me be clear. This is not saber-rattling,” and vowed “to swiftly close the gaps in current US legislation…”

In other words the espionage statute is being rewritten to target Assange, and in short order, if not already, President Obama – who as a candidate pledged “transparency” in government – will sign an order okaying the seizing of Assange and his transport into the US jurisdiction. Render first, fight the habeas corpus lawsuits later.

via CounterPunch.

Before there was a Bill of Rights guaranteeing freedom of speech, freedom of the press, freedom of worship and the right to keep and bear arms, the United States Constitution protected even more basic freedoms.  The Constitution banned ex post facto laws and bills of attainder, guaranteed the right of habeas corpus and defined the crime of treason in narrow and specific terms.

These were the basic principles of a nation founded on the principle of the rule of law – a principle that in the English-speaking world went back to the Great Charter of 1215 and the English Bill of Rights of 1688.  The principle of the rule of law is that no matter how much you anger your rulers, they can’t do anything to you unless you break an actual law with a specific punishment.

The rule of law means that a government can’t punish you for breaking a law that was passed after the fact (ex post facto law).  It can’t pass a law aimed at you personally (bill of attainder).  If you are arrested, you have a right to be brought before a judge and told what specific law you are accused of breaking (habeas corpus).  And you can’t be charged with treason just because you’ve done something that the government didn’t like.

All this has been turned on its head in the case of Julian Assange and Wikileaks.  Eric Holder says that he’s made up his mind to charge Julian Assange with something – although as of now he hasn’t been able to specify a law he has broken.  And if there is no law on the books, he will propose something “to close the gaps in U.S. legislation.”

Senate Minority Leader Mitch McConnell said Assange should be prosecuted to the fullest extent of the law and, “if that becomes a problem, we need to change the law.” [Added 12/11/10]

Holder and others have invoked the Espionage Act of 1917, which was passed at a time when the nation had gone even crazier than it has now.  The Islamophobia of today is nothing compared to the Germanophobia of that era.  The law has never been used against journalists, and for good reason.  If the government can define anything whosoever as a secret, and can punish anyone who reveals its secrets, there are no limits on its power.  How can we the people hold our government accountable if it can keep us from knowing what it does?

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