Thursday, August 03, 2006

Law and Equity and Justice

There is a central misunderstanding behind Rebecca Goldstein's analysis of government, which is that religion has no place in it whatsoever, because any appeal to religion is inevitably an appeal to non-universal (if not outright selfish) goals and ideals. But the US government's position on prisoners at Guantanamo is nothing more than the application of reason without inclusion of universality:

US Attorney General Alberto Gonzales said the US government could "indefinitely" hold foreign 'enemy combatants' at sites like the US naval base in Guantanamo Bay, Cuba.

"We can detain any combatants for the duration of the hostilities," said Gonzales, speaking to the Senate Armed Services Committee.

"If we choose to try them, that's great. If we don't choose to try them, we can continue to hold them," he said.
The reason for this, of course, is that these prisoners are "unreasonable."

"Lawyers for the detainees have done a great job painting their clients as innocent victims of U.S. abuse when the fact is that these detainees, as a group, are barbaric and extremely dangerous," Landmark President Mark Levin said. "They are using their terrorist training on the battlefield to abuse our guards and manipulate our Congress and our court system."
Levin, of course, wants to deny the prisoners at Gitmo the capacity to reason, thus droppoing out of Spinoza's scheme and justifying brutal treatment of those we deem "unreasonable." Gonzalez, on the other hand, is being perfectly reasonable. The Supreme Court has said Congress must establish proper tribunals. Gonzalez expects Congress to establish tribunals in keeping with the aims and goals of the Administration. And that goal is to imprison "detainees" "for the duration of hostilities," which, yes, means indefinitely. And that is a perfectly reasonable action; because our enemy is perfectly "unreasonable."

How to break this logjam? Argue for more reasonableness? When the church does that, it ends up with the Social Gospel, and the critique of that comes from the recognition of human selfishness, and of the reality of evil, from theologians like Reinhold Niebuhr. Perhaps one should argue for the worth of human life. That is an inherently reasonable approach, depending on your definition of reason, but it does not get under the fear of the individual, or the community, against the "other." That fear is strong again in this country when it comes to the idea of "prisoners." "Criminals" all deserve imprisonment because they threaten society. Even the idea of reforming these criminals has been largely abandoned; we seem to prefer the "lock 'em up and throw away the key." Gonzalez made it clear in hearings yesterday he would like to gut key protections for defendants in establishing tribunals for the detainees, just as he made it clear that they won't be charged with crimes, because that would limit the Administration's ability to hold the prisoners indefinitely. In fact, his statements leave open the question of whether he would employ the tribunals at all, except as show trials to give the appearance of justice.

And he says this all while appearing to be quite reasonable. He doesn't rave; he doesn't swear; he doesn't pound his chest.

The law, as developed in Englad and brought to this country, dealt only with damages and compensation for loss. You breached a contract, you paid damages for the breach. You hurt someone, you paid damages for their injury. Your actions, however, were not under the purview of the court. You might go on injuring someone, but the court could only make you pay damages for the injury; if it wasn't a criminal matter, the court could not step in and halt your conduct (and then could only do so by imprisonment), or require you to perform under the contract you had agreed to.

Enter equity. Equity was, in England, a separate court system; it was the court of the church, and could only be accessed when you did not get justice in the law courts, when all the law courts could do for you was not enough to reach the standard of "just." Equity was limited, but powerful. Equity could enjoin your conduct. Today we call that an injunction. Equity could compel your performance under a contract. Today we call that "specific performance." There are still sharp limitations on what an equitable remedy can do. It cannot, for example, compel specific performance of an employment contract; and the injunction, being powerful, has sharp limits on its application. But without equity, without the recognition of the human beings involved in legal conflicts, the reasonableness of the law provides only for one form of compensation: damages. And that limitation is quite reasonable. It is the universal we all understand. To the extent we all partake of the market place, in the economic system, to the law "we each partake in exactly the same identity." Which, of course, is precisely where utilitarianism enters the picture and becomes not just an economic principle, but a moral system. But utilitarianism is not concerned with equity; it is only concerned with compensation. Aye, there's the rub.

I know of no equivalent to equity in criminal jurisprudence, so any sense of mercy or humanity toward prisoners has always depended on legislative, not ecclesial, action, which is why treatment of prisoners in American jails has depended either on the attention of society, or the compassion of the Supreme Court. The Executive is not interested in mercy, and considers its position to be quite reasonable. The Legislative branch may disagree, and will do so quite reasonably if it does. But it is hard to see how this situation would not benefit from the inclusion of religious considerations, especially from those traditions which place humility at the heart of their religious practice. Reason can, quite reasonably, exclude others from its charmed circle, and in doing so be quite unreasonable and create demons of its own making, by ignoring the interests of the other in upholding its own strict adherence to the universal panacea of "reason." But humility precisely places the focus on the other, and while it may not be a route a society can be expected to take, simply becuase it violates the first principle of self-preservation, humility is the first step toward tempering action with mercy, which is the path toward peace, without which there is no justice. The risks that must be taken, the vulnerabilities that must be dared, must be entered into on faith: faith in justice, faith in humanity, faith in the power of powerlessness. All of that, ultimately, at least in the understanding of Western culture, is a faith in God. That is not to say the society itself must become Jewish, Christian, or Muslim; but it must allow the angels of our better cultural nature their voice in the government, too.

Humility, like equity, can at least temper our laws with mercy, can allow us to see our "enemies" as human beings. Perhaps only then can we extend the charmed circle of our reason to include them as equal participants in our discourse.

Because until then, it will be war without end, and let no one say "Amen."

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