From: Miles Jackson
On Wed, 1 Sep 2004, andie nachgeborenen wrote:
> Here's the problem: there's a disagreement that is ineradicable about
> what's moral. Do you want antiabortion judges acting in defiance of Roe
and Casey? Homophical judges punjsing gay behavior in definace of Roemer and
Lawrence? Racist judges defying Brown?
^^^^^^
CB: This is a strange inquiry, "do I want judges ...?". I want judge to do exactly what I want them to do. But I know most of them will not do what I want them to do on cases with significant _political_ content. There is nothing I can do about racist judges avoiding and subverting the anti-racist laws. Certainly , my agreeing that judges should uphold racist laws , like the Fugitive Slave Act, will not get me any guarantee that the courts will uphold anti-racist laws, in some kind of meta-agreement on "liberal procedures".
The fallacy here is the same one that you commit in the debate on whether to outlaw Nazis/KKK speech. There you assume that if we respect fascistic racists "freedom" of speech by supporting First Amendment protection of fascist speech that , in turn, the racist, capitalist judges will respect left and Black activists' freedom of speech. That the judges will respect a status of equality before the law for fascists and communists, as a specific example of a due process and fairness of process between two groups that have a basic moral disagreement. But the courts will protect fascistic racists "freedom" of speech AND outlaw communist speech at the same time, as they did in the early 50's when they jailed the Communists for speaking, but did not jail the KKK for fascistic racist speech. There's no guarantee of the liberal proceduralist quid quo pro, that you promote. They keep the kkk out of jail, and put us in jail.
_I_, myself, can't do much about these judges. Given the current status quo, I assume most judges will do the wrong thing on cases of political significance as they are agents of the capitalist state.
In general, the liberal proceduralist judges and courts in the U.S. are politically bad, and I don't expect or want anything _political_ out of them. If I get something politically good from a U.S. , liberal , due process court, I consider it a fluke, an accident, or the result of street heat and mass working class struggles and pressures, like the Civil War.
I do not expect fairness out of judges. It gets worse as you go up the appeals levels. The U.S. Supreme Court is horrendous right now, as is the Michigan Supreme Court.
Miles: I've made this argument already with Brian, and he doesn't seem to appreciate the force of it. Well intentioned, intelligent people differ in their moral beliefs; that's just a reflection of the profound complexity of social relations and social structure. I don't get why Brian ignores the ubiquity of moral disagreements.
^^^^^^ CB: But some of the disagreements we are discussing here are with bad intentioned people. Some of the judges and people Justin mentions I don't consider well-intentioned. And for that reason and others, I don't consider a bargain with them such that "I respect the law if you respect the law" as a something I can trust them on.
^^^^^^^
What's important, as Justin keeps emphasizing, is a good method for adjudicating between people with different moral beliefs and practical objectives.
^^^^^^ CB: In cases where the differences between the people are irreconcilble, there is no such neutral, basically magical, fair, due process. Where the differences are reconcilable, compromisable , yea, we should have "procedures", communist , not liberal, procedures. The concept of "equality before the law" precedes the Enlightenment, so labelling fair procedures "liberal"is misleading. Hammarabi's code enunciated the principle of equality before the law, i.e. procedural fairness.
Your use of "law" below is a kind of mystification in that there is no such magic "law" , subtantive or procedural, that is above us all. Why do you think the "law" can do this impossible task ?
I haven't seen this "law" in my twenty-five years as member of the bar.
There is no escape into the law, from moral dilemmas , or contradictory moral systems.
^^^^^^^^^
Encouraging judges to make legal judgments on the basis on their own moral sentiments rather than law only exacerbates the problems. (Again, it is only in a fantasy world where all people had the same moral beliefs that legal judgments based on personal moral sentiment would be consistent and fair.)
Miles
^^^^
Justin:BM thinds proceduralsim "useless" in preventing persecution and injustice. That's ridiculous, frankly. Liberal regimes have been the only societies in human history taht have systematically opposed persecution and injustice as matter of principle. The ONLY such societies. They set the standard; no other kind of actually existing society has ever made social equality, political and civil freedom, and justice its central goals. None. Sorry, Charles, Communist/Stalinist societies obviously made material equality important, but not political freedom.
^^^^^ CB: Sorry Justin , your statement that "Liberal regimes have been the only societies in human history taht have systematically opposed persecution and injustice as mater of principle" is a gross falsehood. Liberal regimes have systematically perpetrated persecution and injustice as a matter of principle more than communist/socialist regimes , including the Soviet Union under Stalin. For example, the U.S. from its prehisory perpetrated genocide against indigenous peoples, slavery, and many wars and annihilations on into the twentieth and twenty-first century. Right now, just as an example, it has socalled "Enemy Combatants" imprisoned in violation of liberal proceduralism in a land, Cuba, that it occupies by force only. U.S. proceduralism is might makes right and manifest destiny. Other capitalist Liberal regimes have similar records.
Also grossly false is your claim that "liberal regimes are The ONLY such societies. They set the standard; no other kind of actually existing society has ever made social equality, political and civil freedom, and justice its central goals. None. "
You have really flipped out. "Social equality" ??!! Capitalism engenders social INEQUALITY as an iron law of its existence; and its bourgeis democratic liberal proceduralist regimes affirm this constantly. Right now I am about to go to court where the judge will evict my client because my client doesn't have enough money, thereby enforcing social inequality in America.
It's central goals ??!!! Freedom and justice ? The American way ? That's like a Superman intro. It's like you believe the hype that America is about "freedom", that's one of its central, if not the central, goals. Are you serious ? It is mindboggling that a Leftist would make statements like the above.