Not Everyone Believes the Law Delivers Justice

What is it with our elites and the law? Every week or every day brings us news of fresh catastrophes.

Lawbreakers

• Ex-Prime Minister of Pakistan, Imran Khan, has been charged under anti-terrorist laws.
• Ex-Prime Minister of Australia, Scott Morrison, has been charged that he “undermined government principles” by taking over five ministries.
• Ex-Prime Minister of Malaysia, Najib Razak, has been jailed for 12 years in connection with looting the 1MDB of $4.5bn.
• The former Attorney General of Mexico has been arrested in connection with the deaths of 42 student-teachers.
• The Vice-President of Argentina, Cristina Fernandes de Kirchner, faces federal allegations of corruption.
• Ex-President of the U.S., Donald Trump, has described the Department of Justice as “vicious monsters” and the President, Joe Biden as an “enemy of the state." This was two days after the President’s speech discussing the MAGA threat to democracy (NYT 4 Sept 22). During his term in office, he offered clemency or pardons to hundreds of people, including many of his friends and supporters in a legal, but surely immoral, display of favouritism rather than justice, including seven Republican congressmen (7!), five campaign staff members, and Jared Kushner’s father.
• Boris Johnson broke his own party’s law with ‘Partygate’, lied about it, and lost his job.
• In the Volkswagen "dieselgate" scandal, the company was found guilty of tampering with gas emissions with deceit or defeat devices. The CEO Martin Winterkorn resigned and is currently awaiting trial. The crime has cost the company $35 bn. Other automotive companies are now being investigated. The case is reminiscent of the Ford Pinto scandal in the '70s.
• Corporate criminality is nothing new, with the phrase “business ethics” widely derided as an oxymoron, together with the term “political ethics.” Corporate and accounting scandals are legion, including Enron and WorldCom, Bernie Madoff, Elizabeth Holmes and Theranos, the Sackler family, and the opioid crisis.

Lawmakers

Over the millennia, great lawmakers have emerged to develop civilizations and settle disputes in peace with justice. These would include:

• Hammurabi (c.1810-1750 BCE), King of Babylon, wrote the Hammurabic code to create a uniform legal system across the empire. This influenced Mosaic law, which in turn influenced Christian law.
• Solomon (c.990-931 BCE) was most famous for his wisdom in deciding the difficult case of the two women who both claimed to be the mothers of the same child (1 Kings 3:3-28
• Solon (c.630-560 BCE) was an Athenian lawmaker credited with having laid the foundations for Athenian democracy, albeit only for citizens since the city-state was built on slavery.
• Moses: The Mosaic law includes the first five books of the Torah and the Pentateuch. It reflected the Hammurabic code, with the difference that offences were not committed against the state but God. The “lex talionis” states: “Life for life, / Eye for eye, tooth for tooth, hand for hand, foot for foot, / Burning for burning, wound for wound, stripe for stripe”. (Exodus 21:23). Some states in the US, especially Texas, and a few countries like China, Iran and North Korea, still practice capital punishment. Yet Gandhi noted that an eye for an eye leaves the world blind.
• In Paul’s letters, there are two laws: the law of God and the law of sin.
• Justinian (527-65) a Byzantine emperor codified Roman law in four books.
• Sharia law is the body of Islamic religious teaching derived from the Quran and the Hadith.
• Hugo Grotius (1583-1645) founded international law, challenged the Divine Right theory of monarchy, and formulated the idea of human rights.
• The Napoleonic code was created by four jurists and was signed into law, the foundation of the French civil code, by Napoleon in 1804.
• Rudyard Kipling added the law of the jungle.
• Plato’s book “Law” was the first treatise on law and the last he wrote. Here he emphasized law as the pursuit of the Good, Justice, and also Virtue: “wrong, arrogance, and folly are our undoing; righteousness, temperance, and wisdom, our salvation …” ((906b).

Law and Justice

The beauty of the law was well articulated, perhaps satirically, by the Victorians Gilbert and Sullivan in their operetta “Iolanthe:” “The law is the true embodiment / Of everything that’s excellent." This was a view not held by their contemporary Dickens, who wrote a biting social commentary of the law in “Bleak House” (the court) starting with the first paragraph on fog; in Oliver Twist, he added the crack that “the law is an ass—an idiot."

Not everyone believes that the laws deliver justice, despite the blindfolded golden statue of Justice holding the scales of justice above the Old Bailey court in London. Some suspect that the scales do not weigh the weight of the evidence but the weight of the gold.

• Chaucer: “If gold do rust, what shall iron do?”
• Balzac: “Laws are spiderwebs through which the big flies pass through, and the little ones get caught."
• Friedrich Engels wrote in “The Condition of the Working Class in England” (1845): “…the law is sacred to the bourgeois, for it is his own composition, enacted with his consent, and for his benefit and protection … [T]he policeman’s truncheon which, in a certain measure, is his own club, has for him a wonderfully soothing power. But for the working man quite otherwise.” (Synnott, 1996:55)
• Karl Marx and Engels wrote in “The Communist Manifesto” (1848): “Political power … is merely the organized power of one class oppressing another” and “Your jurisprudence is but the will of your class made into a law for all.” Oliver Goldsmith was succinct: “Laws grind the poor, and rich men rule the law.”
• Harriet Martineau: “The question has been asked, from time to time, in more countries than one, how obedience to the laws can be required of women, when no woman has, either actually or virtually, given any assent to any law. No plausible answer has … been offered for the good reason that no plausible answer can be devised” (Synnott, 1996:82).
• Germaine Greer, speaking in a debate at the Oxford Union years ago, disagreed with the prevailing wisdom that merit rises to the top, reflecting Plato’s idea in the “Republic” that there are three types of people: gold, silver, and bronze. She enquired if anyone had been to a marina recently and seen what rises to the top: turds.

Law and Injustice

Law does not always deliver justice. As my lawyer once remarked: “Any relation between law and justice is purely coincidental." Then she laughed. I did not. But she was right. Discriminatory laws have prevailed throughout history. These would include:

• The slavery laws in the US and elsewhere.
• The Recusancy laws were imposed from 1588 by Elizabeth I against Catholics (later extended to include dissident Protestants).
• The Penal laws in Ireland also severely persecuted Catholics.
• The Jim Crow laws in the US.
• The Nuremberg laws in Germany.
• Apartheid in South Africa discriminated against Africans, Indians, and Malays, and was echoed in Rhodesia.
• The Caste laws in India.
• Now the Anti-Muslim laws in Modi’s India.
• In Canada the Indian Act (1876), which may have been intended to protect the First Nations, is now widely seen as discriminatory; and the Residential Schools crisis is being exposed as racist.
• Anti-gay legislation is still widespread globally, and anti-trans legislation is emerging.
• Much legislation around the world still discriminates against women, particularly in Muslim countries, and also in India, with recent US advisories against traveling there. The decision by the US Supreme Court in Dobbs v. Jackson Women’s Health Organization to throw out Roe v. Wade, and the subsequent decisions by 12 states (as of August 2022) to ban all abortions without exceptions, and by others to ban most, is seen by many as a return to institutionalized misogyny and making America worse again.

Conclusion

The rule of law is under threat globally, and democracy too, as Freedom House has documented. The two decline together and chime with the rise of autocracy and populism.