Wednesday, 15 February 2012

"A government of laws and not of men"

The notion of the "rule of law" is an ancient legal maxim, of which:

At least two principal conceptions of the rule of law can be identified: a formalist or "thin" and a substantive or "thick" definition of the rule of law. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law. (Wikipedia)

Much of the Harper regime here in Canada, especially after achieving a majority government, may be characterized as a radical shift (at the least) towards the more formalist definition of the "rule of law", which, on the surface, does not seem so bad - even tolerable. But, when we actually reflect upon the issue, the facts are really quite dismaying to any reasonable person who values the notion of "a government of laws and not of men" as opposed to "rule by law" (ie, placing elected officials and ideological value systems (in our case), in effect, above the law or making them sole arbiters of it).

Much of the policy decisions and actions by the Harper regime and its principals are centered around notions of vengeance (C-10), deregulation and repeal of protective legislation and public and commonweal safeguards (the Canadian Wheat Board, environmental review process, labour dispute resolution mechanisms, etc.), not to mention the most recent assault on civil liberties couched in terms not unlike Bush era vitriol and belligerence.

-I'd not be at all surprised if this blog be black-listed by Toews' Ministry.

I just started reading a book that I'm enjoying immensely called, A Thousand Times More Fair: what shakespeare's plays teach us about justice, by Kenji Yoshino, 2011. In the first chapter, The Avenger, on Shakespeare's play Titus Andronicus, he strikes a compelling cast on the post-9/11 world, one that is less based on reified labels as "war on terror" than on "blood feuds" and the vengeance imperative and its consequences.

You see, when the requirement (in liberal democratic societies) "that laws be written down and applied in standardized ways" (Yoshino, p. 30) - ie, in especially value-free terms as possible and multilateral agreement on its definitions - "...some individuals will be unusually adept at manipulating [the laws] for their own interests. The fear and mistrust of lawyers is at heart a fear and mistrust of skillful rhetoricians." (ibid) - I would add "fear and mistrust of demagoguery" that the neo-cons of Harper's regime weld so blatantly.

The thing about vengeance-based "justice", writes Yoshino, is that we start out by identifying with the victim, the wronged, but when they act out their desire for revenge we tend to recoil in disgust and distress. "We may experience ourselves as Titus [Andronicus] mourning an unforeseen and unprovoked attack on his daughter. But the instigators see themselves in Tamora's position, exacting revenge for prior wrongs." (Yoshino, p. 24) But, what we do not realize is that in the revenge narrative

...we begin the story in the middle, with the harm done to us. This is an entirely understandable human tendency, and I admit my own complicity in it. After the [9/11] attacks, I shared the visceral outrage that made the country rally around George W Bush, whose approval ratings roared from 51 percent to 90 percent in the days after 9/11. With those on the right, I celebrated the solidarity we felt as a nation on 9/12. Again, an often overlooked aspect of revenge is that it breeds love - love of country, love of murdered innocents. I endorsed Bush's demand that the Taliban hand over Osama bin Laden and his fellow instigators. I also supported the invasion of Afghanistan for the narrow purpose of toppling the Taliban regime and anyone who would give safe haven to the perpetrators of the attack... ...The Taliban was willing to hand over bin Laden, so long as the United States proved his connection to the 9/11 attacks. President Bush refused to supply that proof, in terms that echo Saturninus's peremptory claim - "If it be proved? You see it is apparent... their guilt is plain." As Bush said: "There is no need to discuss innocence or guilt. We know he's guilty." (ibid, p. 25)

My feelings about the Bush administration's actions mirror my feelings about Titus. In the beginning, I wished the avenger the best of luck. Yet, as the vengeance surged, I began to detach. Certainly by the time the photographs of Abu Ghraib and the executive branch's memoranda authorizing torture surfaced, the line between the "civilized" United States and our "barbaric" enemies had been blurred. (ibid, p. 27)

Titus Andronicus instructs us that we must resist our instincts, lest the ensuing revenge cycle consume us all. But it offers no easy solutions. We are not the only culprits here - terrorism [and criminal activities] is the quintessential extra-legal activity. yet we must recognize that we cannot dignify the "war on terror" with the name of "war" unless we constrain it with the rule of law. Otherwise, our "war on terror" is a blood feud. (ibid, p.28)

The "righteous" indignation of the neo-cons in Canada on those not "for us; with us" is the same kind of done-wrong-by mentality that CPC is counting on us to assume unquestioningly. There is a deliberate blurring of degrees between simple misdemeanors, serious crime and terrorism. The recently tabled "lawful access" legislation, in fact, cloaks itself in "protection against on-line child predation" with the broader public safety issues and terrorism. In Canada, power is truly becoming "alternative ground for action" where it can be exercised coercively and at the periphery of law proper.

Jay

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