Sunday, July 10, 2005

Justice does not require law!

This New York Post editorial made me sigh. They just don't get it.
President Bush, on the other hand, was surprisingly unfocused. Even as he promised that "we will not yield to the terrorists," he declared that "we will find them, we will bring them to justice."

Perhaps the president just misspoke.

Certainly, he knows better than to characterize the War in Terror as a law-enforcement issue.

It is not.

It is, in fact, a war.
What President Bush said was perfectly valid. The Post editorial staff, however, has this fallacious belief that justice must involve law enforcement. Not at all! Law enforcement and law itself are not justice, even in their most legitimate forms. They are merely some of the instruments by which we facilitate justice. Likewise, justice is not law. Real justice, simply the upholding of what is just and right, always existed before law, because it is beyond mere law. Once we believe that justice must have law behind it, we fall into the legal positivism that Hayek assailed, and Bastiat before him.

"Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life,liberty, and property existed beforehand that caused men to make laws in the first place." Our God-given rights have always also existed before law. They share the same timeline as justice, and why not? The purest form of justice is the upholding of our rights.

Bastiat so clearly defined the differences between law and justice in The Law. As Sheldon Richman said in his foreword to the Russell translation, "For Bastiat, law is a negative. He agreed with a friend who pointed out that it is imprecise to say that law should create justice." Behold the grandeur of Bastiat's argument:
The nature of law is to maintain justice. This is so much the case that, in the minds of the people, law and justice are one and the same thing. There is in all of us a strong disposition to believe that anything lawful is also legitimate. This belief is so widespread that many persons have erroneously held that things are "just" because law makes them so. Thus, in order to make plunder appear just and sacred to many consciences, it is only necessary for the law to decree and sanction it. Slavery, restrictions, and monopoly find defenders not only among those who profit from them but also among those who suffer from them.
Tell this to the Post editorial writers, Rudy Giuliani and other authoritarian conservatives. Many have written about this strange breed, but Murray Rothbard's thoughts are perhaps the most thorough. These conservatives supposedly come from a Reagan-esque tradition of limited government and maximum individual freedom, but fundamentally they don't understand the true original of freedom, or the all-important distinction between law and justice. The best description of their political philosophy is a belief in authority, and that individual liberty must sometimes be sacrificed for the good of the whole, because "it is best for society."

Many today still believe government "grants" rights, or that the Constitution "grants" rights. Why shouldn't they, when they learned it in public schools? Jefferson put it best in the Declaration of Independence, that governments are instituted to secure our rights. Not grant them, not even to specify what they are (remember what the Ninth and Tenth Amendments say, because the Constitution indirectly denies legal positivism), but to secure our God-given rights.

Contrast this with what Giuliani has said:
We only see the oppressive side of authority. Maybe it comes out of our history and our background. What we don't see is that freedom is not a concept in which people can do anything they want, be anything they can be. Freedom is about authority. Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do and how you do it.
What complete nonsense! He took the "social compact" theory of freedom and twisted it into veiled fascism. What else can we call the people giving "a great deal of discretion" to government about what they can do? Let us not mince words and realize that Giuliani's statement there would have made Mussolini proud.

Then we have the great champions of true freedom:
Actually, what is the political struggle that we witness? It is the instinctive struggle of all people toward liberty. And what is this liberty, whose very name makes the heart beat faster and shakes the world? Is it not the union of all liberties—liberty of conscience, of education, of association, of the press, of travel, of labor, of trade? In short, is not liberty the freedom of every person to make full use of his faculties, so long as he does not harm other persons while doing so? Is not liberty the destruction of all despotism—including, of course, legal despotism? Finally, is not liberty the restricting of the law only to its rational sphere of organizing the right of the individual to lawful self-defense; of punishing injustice?

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
I'll not attempt to speak for anyone else, but I'd much prefer disciples of Bastiat and Jefferson heading a government that has jurisdiction over me, not Rudy Giuliani. He might be a real gentleman, and he might even be a great and courageous leader, but he has no concept of real freedom.


Blogger Quincy said...

It's my belief that Rudy Giuliani was the right person at the right time for New York. He believed and practiced in strong, no-nonsense leadership at a time when the city needed it. He, long and short, was a good executive.

Sunday, July 10, 2005 11:34:00 PM  
Blogger Perry Eidelbus said...

I wrote somewhere about the Greek and Roman concept of a strong ruler who would wield tremendous power to resolve an emergency or bring order back to society. Was Giuliani such a man? I don't deny that he did a great deal to "clean up" New York, particularly with targetting the squeegee operators and other low-level criminals that were dragging down the quality of city life. And Giuliani, of course, exhibited tremendous leadership during and after the 9/11 terrorism.

Thank goodness, however, that he couldn't completely act on his beliefs about freedom. Nor could I imagine him as the national chief executive: Patriot Act Squared?

Monday, July 11, 2005 12:28:00 AM  

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