Friday, August 26, 2011

The end of law

The Dreyfus Affair

The Dreyfus Affair that started in 1894 when Alfred Dreyfus was convicted of spying for Germany in a blatantly unfair trial is misunderstood today. It is true that the Dreyfus case inspired Theodor Hertzl to launch the Zionist project that ended with the creation of the state of Israel, but antisemitism is only a small part of this trial's historical importance, and Hertzl knew it:

The Dreyfus case embodies more than just a judicial error; it embodies the desire of a vast majority of the French to condemn a Jew and to condemn all Jews in this one Jew… In republican, modern, civilized France, a hundred years after the Declaration of the Rights of Man, the French people, or rather the greater part of the French people, does not want to extend the rights of man to Jews. The edict of the great revolution has been revoked.”

The Dreyfus case proved to Hertzl and many others, including Emile Zola, that the Declaration of the Rights of Man, that is the declaration of universal human equality, was a dead letter, not only for Jews, but for everyone. Hertzl drew the conclusion from this one trial that the Jews could never expect the law to protect them. Although Hertzl was primarily interested in the Jews he saw clearly that the entire project of “rule by law” was over.

People believed that the Code Napoleon secured the project of universal human equality. Universal human equality required legal proceedings that produced objective proof of guilt or innocence. What the law was and what the defendant did should be all that mattered in a legal proceeding. Social position was to have no bearing. It is precisely here, in the reliance on objectivity in the courts, that the Enlightenment's scientific thinking met its idealism. Hertzl recognized that the railroading of Dreyfus in a trial that was scandalously unfair, negated not just Jewish safety in civilized Europe, but the whole project of judicial procedure to determine objective facts. That one could erect a legal procedure that might insure that criminal convictions be based upon fact had been proved false.

Emile Zola, who wrote J’accuse about the Dreyfus case, also saw it this way. To be sure, he does condemn antisemitism in his letter, but it is the larger issue that troubles him far more. In the Wikisource translation Zola writes:

But what a spot of mud on your name—I was going to say on your reign—is this abominable Dreyfus affair! A council of war, under order, has just dared to acquit Esterhazy, a great blow to all truth, all justice. And it is finished, France has this stain on her cheek, History will write that it was under your presidency that such a social crime could be committed.

Zola goes on. “I declare simply that commander Du Paty de Clam, charged to investigate the Dreyfus business as a legal officer, is, in date and in responsibility, the first culprit in the appalling miscarriage of justice committed…. If I insist, it is that the kernel is here, from whence the true crime will later emerge, the terrible denial of justice from which France is sick.” Antisemitism allowed Dreyfus to be used as a fall guy for Esterhazy (the real culprit), but it is the open blatant miscarriage of justice that troubles Zola most. For if the court cannot recognize obvious lying, fabrication of evidence, and attempts to frame the defendant, what good is it?

We think of the law as setting down rails upon which the court procedure will run to provide, in the end, a just verdict. But what of fabricated evidence, false testimony and the like? Are there procedures for discovering such things or does such discovery depend upon human judgment? Who decides when such procedures are needed? Couldn’t deceptive practices circumvent procedures mechanically followed? But the opposite of following a procedure mechanically is following it thoughtfully, that is with judgment. That is: not on strict rails. Furthermore, who decides whether or not the procedures are actually being followed? Do the instructions on paper guarantee that they are, or do we still need custom and judgment and in the end someone to decide?

Wittgenstein, in an entirely different context, gives a classic expression to the problem:

But am I not compelled, then, to go the way I do in a chain of inferences?” --Compelled? After all I can presumably go as I choose!-- “ But if you want to remain in accord with the rules you must go this way.” – Not at all, I call this 'accord'. – “Then you have changed the meaning of the word “accord”, or the meaning of the rule.” --No; – who says what 'change' and 'remaining the same' mean here?
However many rules you give me-- I give a rule which justifies my employment of your rules.

Wittgenstein exposes the problem in mathematics, whose rules are presumably the most rigid of all. Legal terms are surely even more open to interpretation. In any case, all rules are open to endless interpretation. Those who would argue against this have nothing with which to argue, but gain their point through contempt of the dissenter and the power teachers have over students.

The deepest question is this: what happens when everyone agrees that the procedures have been followed properly and the result is injustice measured not legally but in human terms. To illustrate, consider this quote from Supreme Court JusticeAntonin Scalia: "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent." And what if the man is actually innocent? He did not commit the crime. Clearly, Scalia is saying that that would be irrelevant. The law is the law. The quotation marks around “actually” indicate that, for Scalia, innocence is a matter of judicial procedure, and is completely independent of the actual facts if they emerge outside that procedure.

The laws themselves, even when properly enforced, produce frequent injustices. But these injustices, if one restricts oneself to looking only at the laws, are invisible. According to the law they are not injustices. It is only when the appeal goes beyond the law, and rests on what we can only call our sense of justice, that we can see it. He didn't do it! Too bad, he was convicted and the law is the law. Of course these injustices are not always so extreme. A man caught smoking a joint is convicted and required to endure six months of drug therapy. The man might be quite functional, indeed a pillar of the society. He might have a family that is destroyed because of his infamy. The therapy is stupid and in his case pointless. It's cruel and inhuman punishment, but does not appear so. And the law is the law. Or two people commit the same crime, but one is rich the other poor. The rich man gets a good lawyer, finds a loophole, and escapes conviction. The poor one doesn't. That wealth can affect judicial outcome shows that the notion that the procedure determines whether or not a law was broken and that punishment depends upon that is a sham. But if our “law is the law” blinders restrict our vision only to whether or not we followed the procedures, such injustice is invisible.

The Dreyfus case surprised Zola because it revealed not only the problem with written law, but the affect this law had upon human judgment. “The law is the Law” thinking that written law forces, suppresses, if it doesn't kill, the human sense of justice. The quote from Scalia shows just how this happens. Scalia's statement, outrageous to anyone with an intact sense of justice, seems quite fine to anyone habituated to “the law is the law” thinking. If he retains this sense of justice at all it is so repressed as to have no real bearing on his opinion of what is right and wrong. And his attitude is not anomalous, but quite correct in a Supreme Court justice. Law school trains people to repress this sense of right and wrong and refer only to the legal procedures. If “due process” is followed, the verdict is the right one regardless of what crime was actually committed. Since lawyers suppress the sense of what is right and wrong, and it has no bearing on a case at law, it is irrelevant and atrophies.

This causes further damage when legislators, the preponderance of whom are lawyers, enact further laws. For whereas laws were originally supposed to codify our sense of right and wrong, those without this sense enact laws without reference to it. Drug laws enact harsh penalties upon people who have done nothing to harm anyone else. But because those who rule are so thoroughly schooled in “a law is a law” thinking, they do not even notice. Nor does anyone else who has embraced “the law is the law” thinking.

As the Dreyfus case wore on interminably into the Dreyfus affair the enormous uproar at the miscarriage of justice died away. People seemed unable to see what happened and just how decisive it was. The clear demonstration that written law could not guarantee objective criteria for judicial proceedings faded away in fuzzy thinking. And everyone continued to operate as if the law could work.

About the fall of the third Republic in 1940 Hannah Arendt comments:

What made France fall was the fact that she had no more true Dreyfusards, no one who believed that democracy and freedom, equality and justice could could any longer be defended or realized under the republic.

The anti-Dreyfusards well knew that they attacked not only the Dreyfusards, but also the principles of the French Revolution, that is democracy, freedom, and universal human equality. That Dreyfusard sentiment should have petered out is not surprising. For, as we have seen, justice under the law still depends upon judgment and the human sense of right and wrong. All one can say is, “don't you see how wrong this is!” If others disagree, if they refuse to listen to reason, if they have no judgment, what more can reason do? The sense of justice might rest, for example, on Kant's categorical imperative, but what do you do when your interlocutor simply rejects that and any other principle derived from the universalist ideas. All you can do is shrug.

The anti-Drefusards were mostly Fascists, that is, ultra-nationalists. Nationalism has always opposed the enlightenment ideal of universal human equality. Edmund Burke, founding father of conservatism, appealed to the “rights of Englishmen” in his argument against the French Revolution, and Metternich (or his secretary, Friedrich von Gentz) hoped to use Burkean nationalism as a bulwark against the enlightenment revolutions springing up all over Europe in the first half of the nineteenth century. Nationalism insists that not reason but custom is the basis for human freedom. The English, Germans, French all have a way of life and their freedom depends upon their living that way. Herder coined the term nationalism and was openly anti-enlightenment. He well knew that the opposition between reason and nationalism is ineradicable:

One of the received ideas of traditional philosophy is the
claim that human beings possess reason and that this faculty allows them to determine how they should live their lives. But from this it follows that whatever conclusions philosophers reach must be valid for all rational beings in the same circumstances, regardless of from where they come. Thus at a certain point, nationalism and national differences should be considered irrelevant. But this
is precisely what the nationalist refuses to accept.

The enlightenment seems to have two parts that its early thinkers thought were one: profession of universal human equality and reliance on the scientific method. Nationalism opposes the first, though no nation could afford to do without the rewards of the second. But are they separable? Equality before the law requires objectivity in its judgments of guilt or innocence, and thus joins the two. The nation state, which rejects the first but must embrace the second, needs them to be separable. Might we not incorporate national identity into the court's fact finding mission? The first fact in any case is national identity. A French citizen in a French court will be treated differently from a foreigner. Upon that will depend the remainder of the courts procedures. The defendant is first of all found “guilty” or “innocent” of being a citizen, that is a national. Afterwards the court procedures would continue as before.

However, the problem remains, for scientific thinking is not merely a discipline of restricting oneself to objective facts, but discernment of which facts are relevant in a situation or experiment. Post hoc is not propter hoc. National identity is clearly not relevant to whether the defendant did or did not commit a crime. Indeed it is not relevant to whether he did or did not do anything. So his “nationalist” crime, so to speak, is simple existence. Genocide lurks in the corner of any nation, whether it emerges or not. But to let nationality be a criteria that determines the legal case is to violate reason, for the legal procedures are to determine whether someone did or did not do something. One can only maintain both scientific discipline and nationalist fervor by compartmentalizing one's mind. The careful physicist becomes the rabid irrational fascist when he leaves his laboratory and goes out into the street. But nationalism can just as easily influence acceptance of scientific conclusions. Before we accept any scientific conclusion we judge its value for the nation. If it's bad we simply deny its truth. Global warming is bad for business, so it isn't happening. The compartment that includes national interest as a criteria will expand to include the whole mind. Why not? Nationalists falsify scientific findings all the time.
Western people buried what the Dreyfus affair revealed, namely that written law cannot secure, indeed makes completely insecure, justice based on the principle of universal human equality, and thus the rule of reason itself. Writing cannot secure justice with or without nationalism, but within Metternich's nation state system, which enshrines nationalism, people acquire a motive for thwarting the court's rendering of impartial justice. The deflation of the Dreyfusards was actually a waning of the fervor for the idea of universal human equality and, perhaps unwittingly, that of scientific objectivity as well. Antirational nationalism is quite consistent in subjecting the objectivity of scientific fact to the interests of the nation, race, or clique.
Although nationalism opposes universal human equality, it still needs to profess it. The way of life it is supposed to protect is just a collection of customs, by definition unreasonable, that is, arbitrary. But nationalism threatens these customs, for it threatens to break the state down into ever smaller factions, each with its own way of life. The United States fought a bitter civil war. People are obviously loyal to their class, their ethnicity, their color rather than their country. Are you French of Basque, Spanish of Catalonian. Patriotism struggles with fraternité, its emotional opposite, but also, to control its own tendency towards disintegration, embraces fraternité as a cohesive emotion-generating idea, though certainly not as a serious ambition. The sentiment of fraternité leads to stable community, patriotism to war and civil war.
Metternich devised the nation state system to counter Napoleonism, that is the aggressive sentiment of universal human equality that threatened the European Aristocracy. Since Europe was already drenched in the revolutionary sentiment and revolutions were cropping up all over the place, he saw, as Burke did, that this sentiment could not be suppressed completely. The system of Parliamentary democracy and the court system, it was hoped, would hold down the pressure for universal human equality by sending it into the complex piping of the parliaments, congresses, and courts, where its steam would be cooled. If the pressure for freedom became too strong, the rulers would yield grudgingly, letting off steam in liberalizing legislation until things cooled down, then tighten up the escape valves again.
In this way it was hoped that nationalism could tame and use its opposite sentiment, that of universal human equality as a tool of nationalism. Freedom became not universal and human, but American or English. Democracies sprang up. The nation states, those who called themselves democracies, proclaimed that they were protectors of human freedom, now freedom in one country. They insisted that the legal systems, restrictively national, would protect liberties. Hence nationalism was necessary for liberty. The Dreyfus case exposed this claim, but because nationalists are essentially anti-rational, they easily ignored the obvious conclusions. Since their commitment to universal human equality, like Burke's, was nothing but commitment to its use as a safety valve to keep revolutionary fervor from building up, they had no objection to obscuring the conclusion the Dreyfus case should have forced. They had no problem with a sham court system, since they had no real commitment to universal human equality.
Since then nationalism has been on a blind journey to nowhere. When exhaustion buried the Dreyfus case's revelation that the complex system of written laws actually harm rather than help the realization of justice, the nation state left its orbit. It is not surprising that reason wore out in the face of unreason, but without the Enlightenment project what is left? It is, indeed, dark times. National leaders can never stop using the words “democracy” and “freedom,” for nationalism bare would destroy the nation state in internal squabbling or civil war. These words, used to once again stimulate these sentiments, have become nothing more than an appeal to a kind of magic for the creation of somnolence. For their continued force depends upon a continued suppression of the revelation that within the nation state system they are meaningless.
Imperialism in which capitalist enterprises hijacked the nation state to exploit areas outside its borders, violated the principles that found the nation state. For the nations state is supposed to protect a nation justified by preservation of indigenous custom. To extend its rule outside its borders is to directly contradict its raison d'être. But the nation state had already embarked upon a project of mental incoherence in its attempt to graft enlightenment values onto nationalism, and found it quite easy to swallow one more contradiction. The monstrous wars of the twentieth century were the result.