Law and Orders
By Ron
Sullivan
This has been bothering
me since well before September 11, but the source of the distress
has been getting more acute since then, and even worse since the
announcement of the arrest of Abdullah al Mujadir.
There are some in our
country carrying on about just who has the right to trial by jury
and who has the right to an open civil trial rather than a closed
and secret military tribunal. There's an old saying that military
justice is to justice as military music is to music, and it's
more than just a field-corporal's gripe. But the thought behind
it is lost lately, as something much more important is being lost,
fogged over, drowned out. Apparently the public has forgotten
— if we ever learned — why trial by jury and the presumption
of innocence matter to our legal system.
There seems to be a
ground-level perception that these two principles are somehow
a privilege that we are heir to by our birth as United States
citizens, an hereditary perk like a samurai's right to be fed
by the peasants. Because it's seen as a privilege — even
though we call it a "right" — it, at times, is also seen
as revocable, as something we can lose access to if we somehow
don't deserve it. It's also seen as somehow belonging exclusively
to us, a mistake our own laws have come to foster. Someone accused
of a particularly foul crime is seen as beyond the pale and jury
trials and presumption of innocence reside only well within that
social — and geographic — boundary. In part, this is
a normal enough reaction of anger at the crime itself and at the
criminal, a way of separating ourselves utterly from anyone who
would commit such a horror.
But the problem with
this stance isn't its lack of brotherly empathy. It's not even
its failure to put ourselves in the accused's shoes for a theoretical
moment. The problem is its lack of science.
I'm no legal scholar,
but I do remember enough history to have noticed that the American
revolution, economic issues aside, was a child of the European
Enlightenment. Along with its ancestry in English common law,
our court system owes its beginning to the idea that truth is
discoverable by human means and that those means are accessible
to any human who cares to work enough to learn them. The Enlightenment
includes a cluster of big ideas — bigger and in progress
more democratic, than the men who most famously advanced them.
Like English common law, they set precedents and spread basic
assumptions that went beyond anything their original promulgators
could have imagined. And, as the American revolution surprised
and angered some elements of English society, the access to fact
and process that science allows has moved way beyond the elite
in whose hands it was supposed to rest — and there's still
backlash from people who presume themselves its rightful heirs.
The idea that no one
is inherently more fit to discover truths than anyone else, and
that what's needed for the task is work, seems to be a hard one
for us humans to swallow. We treat physicians as priests, demanding
the Truth from them right now and once and for all and then wonder
why they get arrogant. We allow elected officials to tell us they
know best without revealing just what they know and how they know
it, and don't notice until it steps on our own toes that we've
subsidized tyranny. We forget, or ignore, the basis for our whole
system of reasoning, which is not "Take my word for it" but "See
for yourself."
Open jury trials are
as democratic — and as reason-based — as science is.
As a scientist must openly display his experiments, described
carefully enough that anyone can replicate them, to be taken seriously,
so a evidence for any crime and the reason for any punishment
must be open to examination by anyone who is expected to concur
with either. Justice isn't just fair; it's factual. It can't be
fair without being fact-based and reasonable.
The founders of the
US endorsed the open jury trial not just because they saw it as
cutting everybody an even break, but because like their European
brethren they saw it as the best available method to find out
what was true. We still haven't found a better one.
Torture, for example,
works no better now than it did for the Inquisition. Of course,
the Inquisition grew out of a different concept of truth: less
a matter of discovery than of agreement with one's predecessors.
Agreement is easier to extract via torture than real information
is.
Assumptions about the
likelihood of crime among entire groups of people — "profiling"
— lead to the sort of blunders that we laugh at today, even
as we commit more. Think of Lombroso and his "criminal profile"
based on head shape, or Dr. Down and his equating of a certain
suite of congenital disorders with the development of the "Mongoloid"
"race." Any of these can assume, have assumed the mantle of science
without actually being quite scientific enough, because they proceed
from assumptions they are then supposed to prove.
The presumption of
innocence is a precise and basic counter to just such faulty procedure.
It's not a matter of washing away original sin, or inventing a
purity of soul for people who seem to have none. It's a matter
of cleaning the tools, of making a good experiment, of clearing
our own minds in order to get it right. We aren't watching a mysterious
rite here, something that an ordained Other can complete by going
through a set of motions. It's something We the People
must do for ourselves.
We can't assign the
work of justice to somebody else and look away, any more than
we can delegate our own education. Law must have science as its
goal — and its method. And nobody can do it but a vigilant,
rational, and patient people.
Ron Sullivan is an
Associate Editor of Terrain
Magazine and Garden Editor of Faultline,
California's Environmental Magazine. She writes a monthly
column for the San Francisco Chronicle
and is the author of The (remaindered but not forgotten)
Garden Lovers' Guide: San Francisco Bay Area. Ron
gardens in Berkeley, CA on badly drained montmorillonite clay
soil.
You can reach her for
questions and comments (and an explanation of that soil) by email
at rons@dnai.com
