Quotulatiousness

August 17, 2023

Lawfare as politics by other means

Filed under: Law, Media, Politics, USA — Tags: , , , , , , — Nicholas @ 03:00

Chris Bray explains why getting rid of the Donald Trump candidacy wouldn’t even begin to solve the real problems in US politics today:

Donald Trump has been charged with crimes, so the Republican Party should drop him as a candidate and move on to someone else who hasn’t been indicted. That’ll solve the problem!

It won’t. The problem is lawfare. The Republican governor of Wisconsin defeated a recall effort, so Democratic district attorneys launched a long series of predawn raids on his supporters — until the courts made them stop. The Republican governor of Texas won four terms, but then was indicted by the office of a Democratic district attorney — for a budget veto, an action within his constitutional authority. Again, the courts intervened, and the legally absurd charges were dismissed.

Today, scumbag California Assemblyman Evan Low, a uniquely craven publicity chaser even by the local standards, proudly announces that he’s just introduced a legislative resolution calling for the federal government to open a criminal investigation into Florida Governor Ron DeSantis.

So. Get rid of Trump and nominate DeSan— oh, wait. Okay, name someone, anyone: Chris Christie, Vivek Ramaswamy, a utility nominee to be named later in exchange for three rookie infielders. Oh no, it turns out that the new nominee is under criminal investigation for [TBD]! As of, uh, tomorrow.

I have mixed feelings about Donald Trump, who supported pandemic lockdowns and school closures and the rushed development of mRNA injections with limited testing. Dumping him as a candidate because he’s been indicted misses the point. No Republican candidate will run for the presidency without being indicted, unless he’s a court-eunuch Mitt Romney figure, too safe to bother attacking.

June 5, 2023

The poster child for truly antisocial behaviour

Filed under: Britain, Law, Media — Tags: , , , , , — Nicholas @ 04:00

Not following the news closely, I don’t think I’d heard of “Mizzy” until perhaps a week or two back, but if he’d tried pulling this kind of behaviour in the US, his career would likely have been a lot shorter and much more violent:

Screen capture from a YouTube video

What’s the big deal about Mizzy? Surely one idiot 18 year old doesn’t merit the full glare of the British media, you may be thinking (at least if you haven’t been paying attention). Certainly the Guardian didn’t seem to think so — lagging two days behind reporting of the story in the Daily Mail, Telegraph, Independent and BBC. We at the Critic were kind enough to point this out and the Guardian have since seen fit to lower themselves to the story — an unhelpful distraction no doubt from more serious stories their exhaustive coverage of Philip Schofield’s departure from British breakfast TV.

One reason to care, is that despite claims to be a mere prankster, Mizzy’s actions are profoundly serious, terrifying to his victims, and suggest an escalating pattern of behaviour that could very plausibly lead to greater crimes. In a series of videos clearly intended to menace his targets, he decided to steal a dog from an old lady, burst into the home of a young family, and, in one truly shocking incident, comes up to a woman alone at night and asks her if she wants to die. It’s obvious, taken together, that these incidents are not pranks taken too far, but deliberate and calculated attempts to terrify and intimidate innocent people, often women, children or the elderly.

Anyone who has been subject to what we often euphemistically call “anti-social behaviour” and middle class columnists like to frame as teenagers with “too little to do” (blame the closed youth centre or something), knows all too well what Mizzy is up to. It’s the local drug addict who always follows you late at night, leering. It’s the teenagers who let their pitbull bark and snarl at you, smirking all the while. It’s the men who sit outside your house drinking, and stare at you as you walk down the road. Men and boys who take pleasure in the fear of others, often to compensate for absences in their own life — a job, a father, a girlfriend, a future. And sometimes the absence has no obvious explanation — there’s just something missing inside, a hole that demands to be filled, an appetite for brutality and cruelty muzzled but not tamed by modern society.

So what’s so special about Mizzy? He’s got a TikTok channel, on which he proudly posts these petty acts of barbarity for the pleasure of his thousands of followers. And this fact tells a story, an important story, about both the present and future of British society.

In the present, it’s a tale of an unpoliced and anti-social public realm; an increasingly familiar and despairing story of police and judicial passivity in the face of open criminality. Under Blair we reclassified petty crime as “anti-social behaviour” and instead of prison, or a suspended sentence and an ankle monitor, judges handed down things along the lines of “you must not be in the East Shield shopping centre after 10pm”. ASBO recipients, having been briefly hauled up, generally swiftly resume their trajectory towards criminality, creating more victims in the process.

Mizzy, having spent months openly terrorising people, was, amidst national attention and outrage, given the successor to the ASBO — a CBO (Criminal Behaviour Order). Shortly after appearing on national TV and complaining that he was the victim of racism, and only two days after receiving his CBO, Mizzy had already breached its terms, having posted yet more videos.

So much for the present — but what does the tiresome tale of narcissism and cruelty tell us about our future? Nothing good. Mizzy has blended street thuggery with online harassment, creating entertainment out of fear and pain. He’s part of a new flamboyant and triumphalist form of bullying and criminality, which finds an enthusiastic audience online.

Joe Baron instantly recognized Mizzy’s type from his own experiences as a teacher:

Piers Morgan is right. Mizzy is a moron. For those of you unfamiliar with the story, “Mizzy” is 18-year-old Bacari-Bronze O’Garro, who attracts followers on TikTok by filming himself engaged in criminal activity. He terrifies families by invading their homes, steals the dogs of elderly women, physically assaults unsuspecting commuters, and threateningly asks random people if they’d like to die.

[…]

As a teacher I recognised him immediately. So many youngsters betray the same peculiarities: entitled, self-satisfied and utterly irresponsible.

Why are these traits so commonplace among our young people? There are several reasons, bad parenting being the most notable. Either through fear or convenience, parents no longer discipline their children. If a teacher attempts to do so, the parents often complain, presumably in a bid to appease their volatile offspring and maintain a quiet life at home.

This month, I had a furious encounter with a parent who could only be described as deranged. My crime: issuing her daughter with a 30-minute detention for forgetting her exercise book. In an earlier incident, another parent physically assaulted a colleague, attempting to strangle him for disciplining his daughter. She had slapped a book out of his hand during classroom changeover. Anxious and stressed, my colleague left the school soon after, and several weeks later, his attacker’s daughter viciously assaulted another pupil, who then needed hospital treatment.

Parents also have to take responsibility for the devastating effects of divorce on their children. Nearly half of all marriages end in failure. That’s a huge number of broken homes and broken children. And it often leads to poor behaviour. Fecklessness begets fecklessness. When will we wake up to this reality and encourage prospective parents to take their vows more seriously? That’s if there is a marriage in the first place. Or even a father present in the home.

Furthermore, adults have surrendered their authority to children. For example, recalcitrant pupils are not effectively disciplined because, contrary to the Christian doctrine of Original Sin, children are now seen as pure, infallible and morally unimpeachable, and adults as iniquitous and corrupting influences. Consequently, a child’s misbehaviour must be the fault of the adult or teacher. In addition, if a child should make a statement concerning an incident, and the statement contradicts his or her teacher’s version of events, the child’s claims must take precedence, even if they’re completely bogus.

November 4, 2022

Amnesty “literally means a pardon, i.e. the absence of punishment … for a crime committed in the past“

Filed under: Government, Health, Media, Politics, USA — Tags: , , , — Nicholas @ 05:00

Sarah Reynolds considers the implications of what Emily Oster wrote in her Atlantic article suggesting a Covid-19 amnesty:

Now “amnesty” is a very specific word. It doesn’t mean forgiveness, it literally means a pardon, i.e. the absence of punishment … for a crime committed in the past.

It is a stark and loaded word indeed when used to refer to anything Covid-related because it establishes two parties: victims and perpetrators. Group 1: Those who committed crimes and could be in the legal sense pardoned of the criminal behavior they engaged in; and Group 2: those who will consequently not get justice.

The implication of such a dichotomy (if one were to appear) is horrifying.

The author alludes to the appeal and inevitability of forgiveness; I posit in contrast that forgiveness is a spiritual concept, one that may be inextricably linked to a religious belief for some, so she’s jumping the gun here because Forgiveness would be the stage after Justice, and only for those whose religion, faith, or spiritual practice also inspires or compels it.

Use of the word amnesty is terribly concerning to me because it insinuates that grave injustice has been committed. And if some horrible truth is coming out soon, her piece in the Atlantic serves as a way to beta test our/society’s future reaction to it — acting as the proverbial canary in the coal mine.

In other words, if we’re this outraged now knowing only what we know so far, how outraged will we be then, after this (speculated by me) coming newsflash triggers national indignation from coast to coast?

The most revealing part of the Professor’s piece in the Atlantic is this statement:

    The standard saying is that those who forget history are doomed to repeat it. But dwelling on the mistakes of history can lead to a repetitive doom loop as well. Let’s acknowledge that we made complicated choices in the face of deep uncertainty, and then try to work together to build back and move forward.

No, vacuums are complicated. All those attachments.

Tyranny is quite straight-forward, in contrast.

Years ago, I read a book that taught the reader that people are often confessing and how to detect it. If you look at and listen to their word choices, you can sometimes find what it is they did in the past, what they fear will happen in the future, and clues about whether or not they are capable of remorse. Many of you who have watched my youtube or read my blog before I got on substack know how I like to do a communication analysis, and delineate a) what’s literally being said, b) what the person really meant, and c) the third and most important/revealing part, what’s being left unsaid. And I rarely hear people say, “it’s complicated”, unless they are feeling profound regret, fear of the consequences of those “complicated choices”, and plenty of denial of the emotional origin of that particular word choice. They don’t even know why they were compelled unconsciously to use that word … but we do. The stark truth would likely be anything but complicated and possibly horrifying. (For example, what if Oster got on twitter tomorrow and tweeted out, “I don’t think I feel regret or remorse like other people. Intellectually, I get it: the Pandemic response caused human beings unbearable pain and society irrevocable damage but it doesn’t really bother me per se and sometimes I even feel gratified by it, especially when I witness overt force (mandates) replace emotional manipulation (shame).” Now I’m sure Oster is a wonderful person with a fully intact moral compass who’s 100% able to empathetically relate to others!! But … IF … on the off chance it were a true statement so she did declare it on twitter, it might seem complicated to her, but to us it would be the simplest most logical explanation for her actions. We’d go, oh! She’s a sociopath! Oh my God, now it all makes perfect sense! Hahahahaha I get it now hahahahaha because we live in hell!!)

H/T to Chris Bray for the link.

July 5, 2022

QotD: The Great Enrichment

Filed under: Economics, Europe, History, Liberty, Quotations — Tags: , , , — Nicholas @ 01:00

The explanation of the Great Enrichment is people. Paul Romer says so, as do a few others, among whom are some students I did not teach price theory to at the University of Chicago. On the other hand, Paul sets it down to economies of scale, which mysteriously drop down on England in the 18th century and gradually on us all. Yet China had peace, science, and enormous cities when Europeans were huddled in small groups inside town walls, or isolated villae.

In particular, it is ideas that people have for commercially tested betterment that matter. Consider alternating-current electricity, cardboard boxes, the little black dress, The Pill, cheap food, literacy, antibiotics, airplanes, steam engines, screw-making machines, railways, universities, cheap steel, sewers, plate glass, forward markets, universal literacy, running water, science, reinforced concrete, secret voting, bicycles, automobiles, limited access highways, free speech, washing machines, detergents, air conditioning, containerization, free trade, computers, the cloud, smart phones, and Bob Gordon’s favorite, window screens. …

And the Great Enrichment depended on the less famous [but] crucial multitudes of free lunches prepared by the alert worker and the liberated shopkeeper rushing about, each with her own little project for profit and pleasure. Sometimes, unexpectedly, the little projects became big projects, such as John Mackey’s one Whole Foods store in Austin, Texas resulting in 479 stores in the U.S. and the U.K., or Jim Walton’s one Walmart in Bentonville, Arkansas resulting in 11,718 stores worldwide.

Letting people “have a go” to implement such ideas for commercially tested betterment is the crux. It comes, in turn, from liberalism, Adam Smith’s “obvious and simple system of natural liberty”, “the liberal plan of [social] equality, [economic] liberty, and [legal] justice”. Liberalism permitted, encouraged, honored an ideology of “innovism” — a word preferable to the highly misleading word “capitalism,” with its erroneous suggestion that the modern world was and is initiated by piling up bricks and bachelors’ degrees.

Dierdre McCloskey, “How Growth Happens: Liberalism, Innovism, and the Great Enrichment (Preliminary version)” [PDF], 2018-11-29.

June 20, 2022

Criminal justice reform

Filed under: Law, Media, Politics, USA — Tags: , , , , , — Nicholas @ 03:00

At Time Well Spent, an interview with Charles Fain Lehman that considers the divergence between “what everyone knows” (based on how or if the media reports on an issue) and reality in the criminal justice system:

“Tombstone Courthouse State Historic Park” by August Rode is licensed under CC BY-NC-SA 2.0

I want to really dive into your work at City Journal and elsewhere because you’ve produced some of the most informative and sensible material on crime and crime policy I’ve found online, but before that I’m wondering: where does your interest in crime reporting come from, and what inspires you to keep going in the wake of what seems like a pro-crime movement capturing our newsrooms, elite colleges, and preeminent government institutions? You were the first person to support my interest in converting to Judaism as a black dude (as I mentioned in our dms), and so I have to ask also if Jewish culture centralizes the importance of issues of public safety in some way? Let’s get into it.

In some senses, my interest in crime is just a product of my natural contrarianism — I am rarely satisfied with the popular explanation. When I first started out as a reporter (at the Washington Free Beacon), I focused on domestic policy broadly, which I still do to some extent. I have a fluency with numbers, and so my first intuition was to dig into publicly available data. What I regularly found was that data about the criminal justice system simply did not align with the account of reality pushed by the criminal justice reform movement. Books like The New Jim Crow and documentaries like Thirteen give the impression that most people are in prison for marijuana possession on trumped up mandatory minima, all at the behest of the private prison-industrial complex. In reality, the majority of offenders are in prison for murder, marijuana possession is barely an asterisk in prison populations, mandatory minima explain little of the growth in prison populations, and few prisoners are held in private prisons at all. So I began to develop the sense that perhaps the story popular with people, even conservatives, my age was not precisely up to snuff.

The other issue that I think started me down the road to my “tough on crime” stances today was learning about death penalty abolitionism. I wrote a long essay (unfortunately never published) about the death of Clayton Lockett, who was executed in Oklahoma with a drug called midazolam, which lead to a fairly horrible death. What became apparent to me in researching the piece is that Oklahoma only used midazolam because anti-death-penalty activists had lobbied pharmaceutical firms to stop selling more reliable drugs, namely pentobarbital and thiopental, to states, forcing them to switch to less reliable methods. This sort of unintended consequence is actually a common theme across abolitionist activism. For example, in 2019 the Supreme Court blocked the execution of Vernon Madison, a 68-year-old man whose lawyers argued that dementia rendered him incompetent for execution. But of course, Madison only developed dementia because he’d been awaiting execution for literal decades, since he murdered a police officer in 1985.

These may seem like fairly specific issues, but I think they can allow us to identify a common theme with the progressive current in criminal justice reform, namely a belief that “justice” is primarily a concern of the accused — protecting his rights, defending him against the state, etc. Values like due process are, of course, important. But our discourse obfuscates entirely the basic fact that most criminals have committed heinous acts, and that the first responsibility of justice is to redress those harms through punishment. I am motivated, in other words, by a basic belief that justice matters, and that many reformers, in their zeal for fairness or equity or whatever, actively undermine the pursuit thereof.

I don’t think this is consciously a Jewish attitude, which is to say I don’t think I came to this sentiment because I was taught at some point that this is what Jews believed. That said, I tend to think the view that one of the ways that Judaism is distinguished from Christianity is the primacy of justice in the former, compared to the primacy of mercy in the latter. To the Christian, everyone is a sinner, and so the differences between me and the death row prisoner are ontologically trivial. (A view like this I think motivates someone like the Atlantic‘s Liz Bruenig, whom I credit as one of the few honest death penalty opponents, even as I disagree with her.) Judaism, by contrast, is fundamentally a religion of law: God says that these things ought to be done, and to live well is to do them. Of course, Judaism thinks a great deal about the balance of justice and mercy — the Talmud blunts the Torah‘s death penalties, for example. But Judaism always proceeds from the view that there are laws which should be respected, and that violating those laws requires consequences. So in that regard, I suspect that my views are inflected by Judaism. And indeed, coming around to those views I think helped me to think more about Judaism, too.

March 17, 2022

If everything is about justice, then nothing is

Filed under: Environment, Media, Politics, USA — Tags: , , , , , , — Nicholas @ 03:00

At Astral Codex Ten, Scott Alexander wonders why everything these days is said to be about “justice”:

Freddie deBoer says we’re a planet of cops. Maybe that’s why justice is eating the world.

Helping the poor becomes economic justice. If they’re minorities, then it’s racial justice, itself a subspecies of social justice. Saving the environment becomes environmental justice, except when it’s about climate change in which case it’s climate justice. Caring about young people is actually about fighting for intergenerational justice. The very laws of space and time are subject to spatial justice and temporal justice.

I can’t find clear evidence on Google Trends that use of these terms is increasing — I just feel like I’ve been hearing them more and more often. Nor can I find a simple story behind why — it’s got to have something to do with Rawls, but I can’t trace any of these back to specific Rawlsian philosophers. Some of it seems to have something to do with Amartya Sen, who I don’t know enough about to have an opinion. But mostly it just seems to be the zeitgeist.

This is mostly a semantic shift — instead of saying “we should help the poor”, you can say “we should pursue economic justice”. But different framings have slightly different implications and connotations, and it’s worth examining what connotations all this justice talk has.

“We should help the poor” mildly suggests a friendly optimistic picture of progress. We are helpers — good people who are nice to others because that’s who we are. And the poor get helped — the world becomes a better place. Sometimes people go further: “We should save the poor” (or the whales, doesn’t matter). That makes us saviors, a rather more impressive title than helpers. And at the end of it, people/whales/whatever are saved — we’re one step closer to saving the world. Extrapolate the line out far enough, and you can dream of utopia.

“We should pursue economic justice” suggests other assumptions. Current economic conditions are unjust. There is some particular way to make them just, or at least closer to just. We have some kind of obligation to pursue it. We are not helpers or saviors, who can pat ourselves on the back and feel heroic for leaving the world better than we found it. We are some weird superposition of criminals and cops, both responsible for breaking the moral law and responsible for restoring it, trying to redress some sort of violation. The end result isn’t utopia, it’s people getting what they deserve.

(cf. Thomas Jefferson: “I tremble for my country when I remember that God is just.”)

What is “climate justice”? Was the Little Ice Age unjust? What if it killed millions? Is it unjust for Mali to have a less pleasant climate than California? What if I said that there’s a really high correlation between temperature and GDP, and Mali’s awful climate is a big part of why it’s so poor? Climate justice couldn’t care less about any of this. Why not? Hard to say. Maybe because there’s no violation and no villain.

January 8, 2022

The Board of Green Cloth — the original “we investigated ourselves and found us innocent” organization

Filed under: Britain, Bureaucracy, Government, History — Tags: , , , , , — Nicholas @ 03:00

In the latest Age of Invention newsletter, Anton Howes explains how England managed to avoid the first attempt by King James I to impose absolute monarchy — that is, putting the Stuart notions of the “divine right of kings” in place of royal powers limited by the Parliamentary control of the royal income:

King James I (of England) and VI (of Scotland)
Portrait by Daniel Myrtens, 1621 from the National Portrait Gallery via Wikimedia Commons.

The year 1610 might by the most under-rated year in British history. It was the year in which England almost became a more permanent absolutist monarchy. Had things gone only a little differently, King James I might have obtained a substantial annual income — enough to pay off his debts within just a few years, to run a substantial surplus, and perhaps even to never have to summon a Parliament ever again. Over the course of a few decades, so long as they didn’t require too many extraordinary taxes to pay for one-off wars, the Stuart kings could have ruled without challenge, issuing proclamations that would have gradually taken on the force of laws.

[…]

As we saw in the last instalment of this series, James I’s finances were desperate. His predecessor had left him substantial war debts, and he was running a large deficit, so the chances of repaying them anytime soon were slim. So in 1604 he had summoned a Parliament with the aim of making a financial deal. Parliaments were typically called in order for the monarch to raise one-off, extraordinary taxes, usually in times of rebellion or war. Rather confusingly from today’s perspective, these taxes were known as “subsidies”, because they were a subsidy to the Crown. Yet James and his ministers wanted Parliament to instead establish peacetime taxes that would be both ongoing and ordinary — what came to be known as “support”. The deal was that he would give up some of his least popular feudal prerogative rights in return.

The House of Commons did not go for the deal in 1604, as we saw. They may have hated feudal obligations like purveyance or wardship — the requisitioning of goods for the court, and the Crown’s control of noble heirs whose fathers had died before they came of age — but they also saw some major risks in trying to make a deal with the king.

When it came to the matter of purveyance, for example, many members of Parliament wanted to stamp out the abuses rather than see the institution abolished. They thought it perfectly legal for the Crown to compulsorily purchase goods, and even to requisition the carts to carry them. What they complained of was that many purveyors were failing to give compensation immediately, and that corrupt purveyors were sometimes taking more than was required, pocketing the difference for themselves. Many MPs also argued that there was no legal basis for purveyors to determine their own prices for the provisions that they seized — a privilege that the Crown adamantly insisted upon.

James’s predecessor Queen Elizabeth I had granted a concession over patent disputes — “patents” at that time were a rather different and much wider legal notion than our more product-oriented modern patents: the monarch granted patents to assign lands and titles, appoint officials, create cities or guilds, or to allow monopoly privileges over an economic resource among other purposes. The concession was that patent disputes would be litigated in common-law courts rather than by royally appointed judges.

Yet by extending the jurisdiction of the common-law courts to monopolies, Elizabeth opened the floodgates of complaints against all prerogative courts — especially against the court of royal household officials responsible for commissioning the purveyors, known as the Board of Green Cloth.

To Hyde and his followers, this court was especially corrupt. Whereas the trying of monopoly patents had at least been done in the more general prerogative courts, anyone hauled before the Green Cloth for denying the purveyors was effectively being tried, judged, fined, and even imprisoned, by the very organisation that was accusing them. Even if purveyors really were acting illegally by naming their own prices, as opponents maintained, there would be no justice so long as the purveyors effectively judged themselves. For Hyde and his allies then, they wished to do to purveyance what they had done to monopolies — to subject them to the common law.

December 3, 2021

QotD: Questionable legal tactics

Filed under: Humour, Law, Quotations — Tags: , , — Nicholas @ 01:00

This is what I like to call a “reverse insanity defense”. You raise the defense in the hope that the judge is certifiably out of his friggin’ mind and grants it. Sadly, it rarely gets clients off the hook. It is, however, an excellent method of destroying your credibility with the court.

Conrad, “The Reverse Insanity Defense”, The Gweilo Diaries, 2004-09-28.

November 29, 2021

QotD: The law

Filed under: Britain, Law, Quotations — Tags: , , , , — Nicholas @ 01:00

Here one comes upon an all-important English trait: the respect for constitutionalism and legality, the belief in “the law” as something above the State and above the individual, something which is cruel and stupid, of course, but at any rate incorruptible.

It is not that anyone imagines the law to be just. Everyone knows that there is one law for the rich and another for the poor. But no one accepts the implications of this, everyone takes it for granted that the law, such as it is, will be respected, and feels a sense of outrage when it is not. Remarks like “They can’t run me in; I haven’t done anything wrong”, or “They can’t do that; it’s against the law”, are part of the atmosphere of England. The professed enemies of society have this feeling as strongly as anyone else. One sees it in prison-books like Wilfred Macartney’s Walls Have Mouths or Jim Phelan’s Jail Journey, in the solemn idiocies that take place at the trials of Conscientious Objectors, in letters to the papers from eminent Marxist professors, pointing out that this or that is a “miscarriage of British justice”. Everyone believes in his heart that the law can be, ought to be, and, on the whole, will be impartially administered. The totalitarian idea that there is no such thing as law, there is only power, has never taken root. Even the intelligentsia have only accepted it in theory.

George Orwell, “The Lion And The Unicorn: Socialism and the English Genius”, 1941-02-19.

August 19, 2021

QotD: Judges

Filed under: Law, Quotations, USA — Tags: , — Nicholas @ 01:00

Judges often ignore the law in order to deliver decisions that make them happy. I recall my Con. Law professor talking about this. He called it the “TTWILI” rationale: “That’s The Way I Like It.” A judge will look at the law, find that it directs a result he finds objectionable, and then come up with a way to defy the law. He’ll pretend to misinterpret it, or he’ll turn a blind eye to inconvenient facts, or whatever it takes. It happens every day. It’s the judicial equivalent of jury nullification. And like jury nullification, it is perfectly legal, and there isn’t a hell of a lot you can do about it once it’s done. Like my father says, “A federal judge is the closest thing to God you will ever see on this earth.”

Steve H. “About Injunctive Relief: Read Before You Criticize”, Hog On Ice, 2005-03-23.

October 15, 2020

This is what happens when politicians delegate too much of their powers to the courts

Filed under: History, Law, Politics, Russia, USA — Tags: , , , , — Nicholas @ 03:00

At the Foundation for Economic Education, Lawrence W. Reed recounts the stunning injustice of Soviet “justice”, in the person of Nikolai Krylenko:

Panorama of the west facade of United States Supreme Court Building at dusk in Washington, D.C., 10 October, 2011.
Photo by Joe Ravi via Wikimedia Commons.

As I watched the first day of hearings on Judge Barrett’s nomination, I was reminded of a largely forgotten Soviet legal theoretician from decades ago. His name was Nikolai Krylenko. Judge Barrett is being given the Krylenko treatment by Democrat senators like Cory Booker and Kamala Harris, meaning this: The only thing that matters is whether she will vote their party line in future cases.

Under the communist dictatorship of Lenin and then Stalin, Krylenko (1885-1938) rose through the Soviet Union’s legal system to become People’s Commissar for Justice and a Prosecutor General. He was a leading practitioner of the theory of “socialist legality,” which held that an accused person’s innocence or guilt depended on that person’s politics (real or imagined). It sounds nuts and indeed, it was. It was the stuff of Orwell’s nightmare, and one of the reasons the Soviet Union thankfully perished of its own poison.

In The Gulag Archipelago, the famous Soviet dissident and Nobel laureate Aleksandr Solzhenitsyn recounted an episode involving Krylenko. Shortly after Lenin’s Bolsheviks assumed power in 1917, an admiral named Shchastny was sentenced by one of the regime’s judges “to be shot within 24 hours.” When some in the courtroom expressed shock, it was Krylenko who responded thusly: “What are you worrying about? Executions have been abolished. But Shchastny is not being executed; he is being shot.”

To Krylenko, the only morality was what served the Party and the State, which of course in the Soviet Union were one and the same. If your politics were not correct, you would be “corrected,” one way or the other. In Richard Pipes’ authoritative book, The Russian Revolution, Krylenko is quoted as exclaiming, “We must execute not only the guilty. Execution of the innocent will impress the masses even more.”

At the Senate hearings for the Barrett nomination, it was apparent the first day that the Judge was being Krylenkoed. Hostile senators pronounced their verdicts before she had uttered a word, and those verdicts had nothing to do with Barrett’s stellar qualifications or keen legal mind. Legal analyst and George Washington University Law School professor Jonathan Turley commented,

    What they were suggesting is that they will be voting against her because of what they expected her vote would be in a pending case, and that is a conditional confirmation … Here, the senators seem to be saying, “I’m not even going to listen; I’m going to vote against you because I don’t think you’re going to vote the right way …”

Judge Barrett clearly articulated her judicial philosophy, borne out by the way she has ruled at the US Court of Appeals for the Seventh Circuit: She believes the role of a judge or justice is to follow the Constitution and the law as written, not make stuff up in the service of a political agenda. How ironic that this is a point of fiery contention. Senators who swore an oath to uphold the Constitution and the law hate the guts of a judge who does just that!

May 1, 2020

The Scottish Sentencing Council recommends that no under-25s be sent to prison

Filed under: Britain, Law — Tags: , , , , , — Nicholas @ 05:00

Theodore Dalrymple isn’t impressed with this proposal:

A judges’s wig and advocate’s wig on temporary display in Parliament Hall, Edinburgh, 26 October 2013.
Photo by Kim Traynor via Wikimedia Commons.

Just as one begins to imagine that the liberal pseudo-conscience can go no further in foolishness, it comes up with new schemes to make the world a little worse. Its inventiveness, in fact, is infinite, and no victory over it by common sense is ever more than temporary. The price of sanity, at least in the modern world, is eternal vigilance.

This is not to say, of course, that no liberal reform in the past was ever justified or did no good, or that none will ever do any good in the future. It is simply that, as a matter of contingent sociological fact, many liberals seem to have lost their minds.

The Scottish Sentencing Council, an advisory body with no legislative powers but whose recommendations judges disregard at their peril, put forward a proposal earlier this year that those under the age of 25 should not be sent to prison because research shows that their brains have not yet fully matured. It is difficult to know where to begin in arguing with this fatuity.

Let us then start with the notion that no man under 25 is sufficiently mature to know that it is wrong to strangle old ladies in their beds and the further proposition that, until that age, they are unable to control their impulse to do so.

[…]

The idea that a man’s brain is so immature before age 25 that he does not know that all manner of crimes are wrong would suggest a revision of our electoral laws, for if a man can neither distinguish right from wrong nor control his impulses, should he have the vote? Should he, in fact, be considered of legal age? Should he be allowed even to choose his own career? I doubt that the Sentencing Council would preen itself on the corollaries of its proposal.

There is, of course, an element of truth in what the Sentencing Council says. Our characters are not fully formed by the age of 25 — mine certainly wasn’t. It is true also that there is a biological component to crime, inasmuch as the vast majority of criminals in all societies in which crime is a category of behaviour are young and male. The rate at which even recidivist criminals commit crimes declines with age and most often reaches zero. Time is the great therapist.

But punishment is not therapy. It is a very good thing, of course, if punishment (such as imprisonment) reforms the criminal, and I think that it is a moral obligation of the state, if it is to lock up people, to try to give them something purposeful and worthwhile to do. But that is not the primary purpose of punishment. If it could be shown that rewarding criminals with large fortunes would change their behaviour — as almost certainly it would in most cases — we should not advocate such a course, even if it were a better way of reforming them in the sense of reducing their recidivism rate.

April 23, 2020

Trial by jury

Filed under: Britain, History, Law, Liberty — Tags: , , , , — Nicholas @ 03:00

Peter Hitchens recounts the essential role of the jury system in the evolution of the English (and, by inheritance, the Australian, Canadian, and even American) constitutional rights of the individual, which today seems to be in peril:

A still from the 1957 movie Twelve Angry Men, directed by Sidney Lumet, starring Henry Fonda, Lee J. Cobb, and Martin Balsam.

Am I going to have to fall out of love with juries? For decades I have defended these curious committees, which can ruin a man’s life in an afternoon. It has been a romance as much as it has been a reasoned position. Most people get their best lesson in jury trials from the 1957 movie Twelve Angry Men. In that version, a single determined juror, played by Henry Fonda, gradually wins the rest of the panel round to an acquittal, at great cost in emotion and patience. But what really won my heart was Thomas Macaulay’s account of the Trial of the Seven Bishops, in which a London jury defied the wishes of the would-be autocrat King James II in 1688. It was an astonishing event, a monarch’s authority challenged by — of all unlikely things — a collection of Anglican prelates. Their acquittal, perhaps more than anything else, led to James’s fall a few months later. It was the beginning of true constitutional monarchy in Europe, the genesis of the English Bill of Rights and the forerunner of the very similar American document of the same name. It could not have happened without a jury.

For without a jury, any trial is simply a process by which the state reassures itself that it has got the right man. A group of state employees, none of them especially distinguished, are asked to confirm the views of other state employees. With a jury, the government cannot know the outcome and must prove its case. And so the faint, phantasmal ideal of the presumption of innocence takes on actual flesh and bones and stands in the path of power. Juries grew up in England almost entirely by happy accident, and no government would nowadays willingly create them where they do not already operate. A brief fashion for them in 19th-century Europe was swiftly stamped out by governments that understood all too well how much they limited their power. I believe the last true Continental juries, sitting in the absence of a judge, were abolished in France in 1940 by the German occupation authorities. People in Anglosphere countries, unaware that true independent juries rarely exist outside the English-speaking world, have no idea what a precious possession they are.

I remember actually pounding the arm of my chair with delight as I read Macaulay’s account of the response of the bishops’ attorney, Francis Pemberton, when threatened by the chief Crown prosecutor, the solicitor general: “Record what you will. I am not afraid of you, Mister Solicitor!” So this was England after all, and even the majesty of the Stuart Crown could not overawe the defense. This was wholly thanks to the fact that the trial took place before a jury — which duly acquitted the bishops of “seditious libel,” the ludicrous charge by which James had hoped to crush opposition to his plans to reverse the Reformation. Without a jury, the king would of course have won his case, and England would have gone down the road to absolutism (already followed in France, Prussia, Russia, and the Habsburg dominions) with incalculable consequences for the whole world. Instead we had what came to be called the Glorious (or Bloodless) Revolution.

And my blood still runs faster when I recall this and other moments at which the mere existence of juries has made us all more free. Yet I also have terrible doubts. Is the independence of juries possible in the modern world, in which the English Bill of Rights is all but forgotten and a new dispensation reigns? All too often, I read reports of trials in my own country that fill me with doubt. I did my fair share of court reporting as an apprentice journalist many years ago, and I have a good understanding of how these things used to work and ought to work. Something has changed. There is a worrying number of sex cases now coming before the courts in which clear forensic proof of guilt is often unobtainable.

The alleged crimes themselves are repulsive, and the mere accusation is enough to nurture prejudice. The defendants have often been arrested in the scorching light of total publicity, in spectacular dawn raids totally unjustified by any immediate danger they present. Pre-trial media reporting has further undermined the presumption of innocence. In England there is still officially a strong rule against the media taking sides before the jury delivers its verdict. But this is not enforced as it once was. The prosecutions are frequently as emotional as they are unforensic, the opposite of the proper arrangement. Yet the defendants are often convicted even so (sometimes by majority verdicts, which in my view violate the whole jury principle). The state seems somehow to have turned the jury — often swayed by emotion — into its own weapon. And it is worse than the alternative. A wrongfully-convicted defendant, pronounced culpable by a jury of his peers, must feel a far deeper despair than one cast into prison by a mere panel of judges.

March 14, 2020

QotD: Apartheid

Filed under: Africa, History, Law, Quotations — Tags: , , , — Nicholas @ 01:00

To anyone who was exposed to its machinations — let alone directly affected by it, as most South African Blacks were — apartheid was truly evil: only the absence of extermination camps differentiated it from the Nazism of the 1940s. In actuality, Blacks couldn’t live or work in “White” areas except by permit, couldn’t own businesses in White areas, couldn’t be promoted past a certain point when they did work outside the “Black” areas, and were forcibly resettled into Black “homelands” without legal redress or the ability to resist. Social intercourse between Blacks and Whites were restricted, by law, to business interactions only — any kind of interracial sexual activity was legally classified as “immorality” and summarily banned, carrying appallingly-high penalties in the breach thereof. Crimes by Whites against Blacks carried penalties far more lenient — to the extent of semi-official toleration — than those by Blacks against Whites, which were severely punished. The education system favored White children over Black children and continued throughout life — to where “White” universities were ubiquitous but “Black” universities could be counted on one hand, with a couple fingers left over. (Lest anyone is offended by the comparison to Nazism, simply substitute “Jews” for “Blacks” and “Aryans” for “Whites”. That would have been Germany, from 1933 to 1945.)

So the disappearance of apartheid cannot be seen as anything other than a Good Thing.

Kim du Toit, “Tough Question, Simple Answer”, Splendid Isolation, 2019-12-05.

March 7, 2020

QotD: “Jim Crow” laws

Filed under: History, Law, Liberty, Quotations, USA — Tags: , , — Nicholas @ 01:00

Everyone raised in the Unites States over the last fifty years has been required to memorize the official dogma regarding Jim Crow laws. These were state and local laws that enforced racial segregation in the Southern United States. The official version preached to this day is that they were draconian restrictions on blacks preventing them from having a normal life. Modern blacks are told that their condition is the direct result of white discrimination against blacks via these laws.

Now, there is a debate as to the intent and the effect of these laws, mostly because the Left has re-imagined that period in American history. The official version of the Civil Rights era is a fantasy with little connection to reality. What is not under dispute is that these laws existed and they had a negative impact on blacks. Black institutions did not receive public support. Blacks were denied access to the legal system, which often denied them justice when the victims of white malfeasance.

The best argument against these sorts of laws is that they created a second class of citizens, as a legal construct. You cannot have democracy if you have second class citizens, as democracy assumes all men being equal before the law. If the effect of Jim Crow was separate and equal, then maybe they would fit into democracy. In reality, they were separate and unequal, even accounting for the differences in the races. Therefore, as a legal construct, they violated the ideal of equality before the law.

The Z Man, “The Jim Snow Laws”, The Z Blog, 2019-12-01.

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