Mensch tracht, und Gott lacht

Tuesday, December 13, 2005

A Good Word for Lawyers

We in the United States are plagued by the antics of our nation's lawyers, as they and their clients try to game the system for monetary advantage, but it is important to remember the importance of lawyers in protecting the rule of law.

One thing that makes modernity great is the rule of law. Without it, an economy cannot function well, and people are easily oppressed in a multitude of ways. Without rule of law, a society descends into the rule of force. With it, humans can plan on living in a fairly stable society that accommodates rapid change in technology, economic growth, and beneficial social change. Of course, bad government policies and bad laws suppress these good things and create terrible problems, but without rule of law, a society cannot function at all healthily.

Hence it is fascinating to see China's government trying to suppress a growing group of lawyers in that nation who are trying to force the government to enforce the laws fairly and make government agents serve the law instead of other agendas, as recounted in a story in today's New York Times. In China today, one can watch the classic struggle of a society trying to establish the rule of law, with the sitting government as the necessary target of change, as the Times story notes:

Ordinary citizens in fact have embraced the law as eagerly as they have welcomed another Western-inspired import, capitalism. The number of civil cases heard last year hit 4.3 million, up 30 percent in five years, and lawyers have encouraged the notion that the courts can hold anyone, even party bosses, responsible for their actions.

Chinese leaders do not discourage such ideas, entirely. They need the law to check corruption and to persuade the outside world that China is not governed by the whims of party leaders.

But the officials draw the line at any fundamental challenge to their monopoly on power.

Judges take orders from party-controlled trial committees. Lawyers operate more autonomously but often face criminal prosecution if they stir up public disorder or disclose details about legal matters that the party deems secret.

As a result, the government fights back, so that the individuals currently in charge can hold on to their power. The government's main weapon? The law itself:

One November morning, the Beijing Judicial Bureau convened a hearing on its decree that one of China's best-known law firms must shut down for a year because it failed to file a change of address form when it moved offices.

The same morning, Gao Zhisheng, the firm's founder and star litigator, was 1,800 miles away in Xinjiang, in the remote west. He skipped what he called the "absurd and corrupt" hearing so he could rally members of an underground Christian church to sue China's secret police.

The government sees Christians as a particular threat, as the current case indicates. What Gao and his fellow attorneys are counseling, however, is that the failure to fight this oppression will be worse than any likely consequences of fighting it. Their clients are listening, and the people are responding courageously:

"I can't guarantee that you will win the lawsuit - in fact you will almost certainly lose," Mr. Gao told one church member who had been detained in a raid. "But I warn you that if you are too timid to confront their barbaric behavior, you will be completely defeated."

Lawyers such as Gao remind one of the heroic attorneys of past American fiction (and fact), most notably Perry Mason (in particular the feisty Mason of the books as opposed to the domesticated one of the TV series):

Bold, brusque and often roused to fiery indignation, Mr. Gao, 41, is one of a handful of self-proclaimed legal "rights defenders."

He travels the country filing lawsuits over corruption, land seizures, police abuses and religious freedom. His opponent is usually the same: the ruling Communist Party.

The rule of law is at the heart of the fight:

He has become the most prominent in a string of outspoken lawyers facing persecution. One was jailed this summer while helping clients appeal the confiscation of their oil wells. A second was driven into exile last spring after he zealously defended a third lawyer, who was convicted of leaking state secrets.

Together, they have effectively put the rule of law itself on trial, with lawyers often acting as both plaintiffs and defendants."

People across this country are awakening to their rights and seizing on the promise of the law," Mr. Gao says. "But you cannot be a rights lawyer in this country without becoming a rights case yourself."

In watching this struggle, we can learn much about the pressing need to protect the rule of law in our own society:

"Most officials in China are basically mafia bosses who use extreme barbaric methods to terrorize the people and keep them from using the law to protect their rights," Mr. Gao wrote on one essay that circulated widely on the Web this fall.

Of course, we should stop short of characterizing our own federal, state, and local government officials as mafia bosses, given that the use of "extreme barbaric methods to terrorize the people" is absent in American except in the worst fantasies of radicals of both the left and right. Nonetheless, our officials can do much better than they have in respecting the rule of law, and it is up to us to remember that and keep up the fight against the miscreants among them, through the political and legal processes.

14 comments:

Hunter Baker said...

Great post, S.T. What a fascinating thing it is to contemplate the transformation of China into a nation of laws rather than men. As China and India "mature" (which is a controversial word I know), we will see a great upsurge of prosperity in the world. We will also see a diminished chance of total war. Free and democratic nations do not rush easily into total war with one another.

Hunter Baker said...

Tlaloc, we've finally hit upon the perfect living and vocational arrangement for you. You can become a member of a gorilla clan in a protected wildlife preserve! No language and no rule of law, other than "don't piss off the larger apes."

Hunter Baker said...

You know, Tlaloc, I like your "tone of voice" in this latest reply. Sounds very honest and real. Just something for the "for what it's worth" department.

Matt Huisman said...

Maybe but "accepted rules" and "Rule of Law" are entirely different things.

Tlaloc, while I'm somewhat sympathetic to the point you make regarding capitalism, I'm not sure I see how there is much difference here between accepted rules (AR) and rule of law (ROL). The ROL is merely a formal codification of the AR of society. Both have an enforcement element, the ROL just provides more clarity (don't laugh) and swifter enforcement (seriously, don't laugh) of the rules.

The idea that the ROL is different because it coerces you into accepting rules that you don't like by the threat of force doesn't hold water. Force upholds the AR scenario as well. If I don't want you playing poker on my lawn, you can either leave or I'm going to throw you out.

This is why I've never bought into your argument for anarchy. Ultimately, a good society is dependent on those with force being good. There is no vacuum of leadership/power/force. If it is not occupied by good, it will be occupied by something else.

Matt Huisman said...

On the other hand you kicking me off your lawn is an example of RoL. You own the property and have the wright of the law (and it's heavy handed enforcement methods) behind you. From that position of authority you dictate what will happen. Nothing "accepted" about it.

Then by that definition, 'accepted rules' has never happened. We are constantly, in very small ways, using force/power in our interactions. As long as we're in agreement, things are fine. But when our voluntary association has a disagreement, one of us may the 'heavy handed' enforcement technique of dissolving the association. Now, if that doesn't appear heavy handed it's only because you've accepted it as a reasonable use of force (given the stakes).

That's why I say that anarchy is a fantasy. When the stakes are high enough, we won't agree on the appropriate use of force. One of us won't be satisfied with the other's unilateral decision to 'walk away' from our association - and will act in defiance of the other persons wishes. The only way to prevent that defiance is to use force.

Let me ask you something, Matt. When you go out with friends to do whatever you and your friends do (see a movie, go bowling, go drinking, whatever) do you immediately set up a heirarchy?

Every jr high student knows this happens. Each person in the group has a relative level of power. The difference is that the participants usually choose not to live in a legalistic manner that ruins the experience (because the association is more valuable than any minor grievance).

James F. Elliott said...

I should have said a capitalistic economic system provides OPPORTUNITIES for prosperity for everyone and is the only economic system to do so. If people fail to take advantage of these opportunities due to their life's choices, this is their problem. There are limits to what a society OWES to its population in the way of material goods. A humane society essentially owes nothing more to its population than a political/economic structure with educational opportunities and the freedom to pursue life, liberty and the pursuit of happiness.

Oh. My. God. As my Marine buddies say, "Semper Fi, f--- the other guy." Only in a different context.

Because of THEIR life's choices, not because of the way American society is structured. Furthermore, the USDA data are suspect, based on government accounting policies implemented during the LBJ administration that vastly overstate the poverty problem. For instance, if someone goes without one meal during the day, this is considered "hunger" by the government. American "poverty" is a different beast from the dictionary definition of poverty, which is seen in the rest of the world.

Sweet baby Jesus cookies on Christmas! In more polite circles, this point of view is termed "Calvinistic." I prefer to think of it as "Neanderthal."

Indeed, government data is suspect, because the formulas for calculating poverty are over forty years old and do not take into account regional variances in cost of living. For example, $19,000 for a family of four in Wyoming is vastly different than the same amount for the same number of people in Santa Clara County, California, and yet both must abide by the same figure for assistance eligibility.

Capitalism has winners and losers
, and it is in order to hide this that we have those Horatio Alger myths that anyone can make it. It is a naturally inegalitarian system that tends to concentrate power in one end. This is why capitalism must never be allowed unfettered reign. Capitalism, as you profess it, results in an oligarchy, an economic feudalism if you will. Capitalism with monitoring and a social safety net benefits society as a whole.

It's not as simple as "life choices," Buzz. You completely ignore systemic influences.

Matt Huisman said...

Dissolving the association isn't an enforcement mechanism Matt. It's the opposite of an enforcement mechanism. It is a recognition that you disagree and that neither of you can or will try to force the other to agree to your rules.

Let's say that we have a voluntary association of people, we'll call them UN. Let's say that some of the members, let's call them US, of the association think that another member is threatening them, and wants UN's permission and possibly even their help to go beat him up. UN says no, and tells US not to. But US decides to do it anyway.

What happens to the voluntary association and the accepted rules? What good did they do?

Matt Huisman said...

UN told US no, but US attacks anyway. The accepted rules seems worthless - especially to the member of the association being attacked.

(I don't think that I made it clear enough that the person being beaten up was part of the group.)

Matt Huisman said...

Why are you so focused on security? Not every accepted rule is there to help protect us. I really don't understand this tangent you are on.

I don't know how well I'm doing it, but I'm trying to make the point that there are instances where the stakes are high enough that you cannot simply walk away from a disagreement and dissolve a voluntary association. I believe that you seriously discount how dependent you are on real force (or really good people) in order to uphold any accepted rules.

What do you do if I decide to bully you - beat you up and take your stuff? I'm not playing by the accepted rules, but you're not able to dissolve your association with me.

Matt Huisman said...

I certainly agree that people may come to disagreements severe enough that simply walking away isn't an option. I disagree that that somehow justifies having a rule of law.

Whether a ROL is justified or not does not matter here. What does matter is that left unchecked, the opportunistic person or gang will see that using force is an easy way to get what they want. And some people always seem to want a little bit more.

The default position is that force is always present, it is merely restrained by the nature of the person/community that has it. All it takes is one person to push the envelope, and then either the whole community will either turn a blind eye to injustice, cower in fear or find a way to enforce the AR.

The only hope for anarchy is that you'll have an entire population composed of really good people. Good luck with that.

Matt Huisman said...

Well maybe not you but some members of that community are going to get together and teach the problem maker the facts of life in a rather painful manner. If he doesn't lear then he's going to be forced out and he better hope he can survive on his own. This is how voluntary communities police themselves.

So what you are saying here is that force is required to uphold the AR of a community, but that it is somehow different than in the ROL community. If it is different, it only a matter of scale. What is the real difference between a lynch mob and storm troopers?

The scenario we talked about was relatively small, and you suggested that it could be handled by a loose association. But doesn’t the sophistication of the enforcement need to grow with the level of the problem? You want the level of problems to stay small by eliminating the large institutions that initiate large conflicts, but I don’t see how you can stop them from forming. The cat is out of the bag, and relatively small groups of people have figured out that they have the ability to wreak havoc on a scale that is orders of magnitude higher than it used to be 10, 100 or 1,000 years ago. Lynch mobs are no longer good enough.

Ultimately, the level of the problem is determined by the ‘goodness’ of the population and the amount of harm a troublemaker can inflict. Institutions, with all of their flaws, are more essential now than ever.

No there's a difference in how a voluntary community polices itself and how a rol community is policed by others.

Again, I see the ROL as merely an explicit codification of what the AR are and the force that supports it. ROL and AR are the same in the sense that they regulate their communities. Theoretically, the ROL model is superior because it promotes clarity and consistency and fairness - which are all lacking in the AR model. The fact that the ROL model outsources the enforcement is only a difference in implementation and efficiency.

People have been trained to think of their conscience as subordinate to the RoL for a long time now. We need to undo that.

It would be interesting to develop this further, because I think we would have some common ground here. But this has been going on a while, and I’d rather finish up by dealing with the fact that force mechanisms are required to support any community system – and that AR and ROL (when adjusting for population size) are virtually identical.

Matt Huisman said...

A world of difference. A lynch mob (as ugly as it may be) is violent because they believe violence is called for. A storm trooper is violent because someone else tells them to be.

The storm trooper believes the same thing as the lynch mob. They're just more professionally trained. Both are guided by societies principles for how to deal with troublemakers - there is little difference in why the force in either scenario is sent.

Furthermore the members of a lynch mob have a wide variety of options in how to deal with things. But a storm trooper is always a storm trooper. It's their career.

In the ROL society, you don't call in the storm troopers until they're needed, same as in the AR. And the troopers exercise a lot of judgment on their cases - they're hardly automatons.

I'm curious what large scale problems have institions ever prevented?

How would you have stopped Hitler? I know, I know - other institutions created the problem.

It is no longer an organic internal part of the people involved but becomes static and unchanging.

What? I suppose we can send all those lawmakers home then. Nothing new to do.

External enforcement is inevitably seen as unjust and attentuates the mental connection between offense and punishment.

I'm sure this is true, but this is not the point. Both systems have enforcement mechanisms that need to be scaled to the level of the trouble they face. The reason the ROL uses the storm troopers is because the threat requires that we go pro and because the rest of us are too lousy and too lazy to form posses. Do you really want to be on ambulance duty at 3am twice/month?

Matt Huisman said...

He has acepted an authority teling him to kill at their command, his conscience is irrelevent to that relationship.

If you put it that way, what is the difference then between the gun that the lynch mob member uses and a storm trooper (aside from the fact that the storm trooper is way cooler)? He's merely an extension of the force society agrees to apply - a little more impersonal than a lynch mob, but basically the same.

I'd say you have a very limited knowledge of what riot troops actually do and the real world scenarios in which they have been employed the world over.

I've been using the term storm trooper to refer to all levels of societal force, primarily the local police. The local cops, detectives, DA's have almost as much lattitude to make decisions as your lynch mob, and have way more oversight/restrictions on them then your group. You may not like how they conduct themselves, but then, I might not like your lynch mob.

How dangerous would hitler have been without the might of germany behind him? No danger at all.

This is my biggest complaint about your argument. You assume that Hitler can't happen, apparently because it will never occur to anyone that if they marshal resources they'll have power to get more of what they want.

Suppose your lynch mob gets pretty good at dealing with troublemakers. The more they do it, the more confidence and power they have. Next thing you know, you've got Sheriff Hitler causing problems. There's an infinite number of ways for something like this to happen.

Surely you acknowlege that you are able to quickly process information and various circumstances of an incident in moments when it would take legislators decades to do the same legally.

These kinds of judgments that you desire are made in the ROL system all the time. To the extent that they are not, all you're saying is that you would prefer the current ROL to be less rigid then it currently is. You want the enforcement arm to have more discretion.

Let’s go back for a moment to the lynch mob. You like them because they have discretion. Say you rounded up a posse, but they exercised some discretion and didn’t follow through on the troublemaker to the extent you thought fair. You form a mini-posse and go rough up the troublemaker again. Now the original troublemaker has a grievance against you, and he rounds up a posse and smacks you around a little bit. Are you really that surprised that the societies of the past chose to create institutions to prevent these types of Hatfield v McCoys scenarios from happening?

I understand that the current system has issues - guess what, so will yours. People always seem to find a way to be a pain in the behind.

Anarchy solves nothing.

Matt Huisman said...

As far as oversight and restictions those are always overcome and diabused by the corrupt. Certainly I don't need to point out incidents like the rodney king beating to get this point across.

And your lynch mob will of course never become corrupt.

Lets be clear here we are talking about establishing anarchism by educating people to have a deep mistrust of organizations and a trust in their own faculties and personal morality.

You are asking people to ignore that working together for mutual gain is mutually beneficial. Even you acknowledge that voluntary associations are good – so where does a voluntary association end and an organization begin? You may as well be asking people to not be tempted by material possessions – because anyone who is will see that partnering leads to more stuff and will be willing to make the compromises required to get more. You’re starting to sound religious to me.

Surprised? No, not at all. Society has been established for only one purpose and that is to create a false order. People like order it seems nice. But it's a lie because it's only the surface that is orderly.

I think this is very insightful. I know you won’t like this, but Christians say the same thing. You just cling to the hope that this can be remedied by a solution that is more improbable than what we believe. We both know that your solution will never be implemented, we’re just arguing over whether it would even work if it was – and I’ve got history on my side. You suggest that we functioned for most of time in something similar to anarchy – and yet we ended up in our current state. It couldn’t last – why would you expect that it would the next time around?

You may have gotten rid of the small family feuds that seemed so bad but in the bargain you got world wars and race riots.

Again, you are right on target. But what you are really saying here is that there is something fundamentally wrong with mankind, and the only way to control it is to restrict their capability for harm by limiting their social and technological progress. The problem is that this approach doesn’t address the false order within man, and because of this it is highly unlikely that we will be willing to let ourselves be restricted in this way. Your system requires a means of changing our nature – wait, maybe you are religious!