Beyond Judicial Independence

Jacob Sullum | March 24, 2006

The judge overseeing the trial of Abdul Rahman, the Afghan man who could face the death penalty for converting to Christianity, says he is determined to resist outside interference. "There is no direct pressure on our court so far," he says, "but if it happens we will consider it interference." This is the stance of tyrants the world over, but it is also the correct position for a judge defending the rule of law. In this case, the law, which allows the prosecution and execution of infidels (assuming that's the correct interpretation of Islamic principles), is barbaric. But how can the U.S. go along with a constitution that makes Islam the supreme law of Afghanistan, insist on an independent judiciary to apply the law, and then complain when judges make a conscientious effort to do so?

Or consider Oleg Shcherbinsky, the Russian railroad worker who last month was sentenced to four years in a labor camp for daring to be hit by the speeding car of a regional governor, who was killed in the crash along with his entourage. The prosecution successfully argued that Shcherbinsky, who was making an apparently legal left turn, had a duty to yield to the politician's official car. Assuming that interpretation of Russian law was valid, Shcherbinsky's conviction was the correct, though unjust, result. And yesterday, when an appeals court overturned Shcherbinsky's conviction in what The New York Times says "may be one of the quickest appellate reviews in Russian judicial history," it apparently was responding to intense popular outrage about the case. "I would very much like," a Russian legislator told the Times, "if, in the future, legitimate, just and fair decisions could be taken not under pressure from somebody or the other, but simply because judges directly and consistently followed the law and their own legal consciences."

But what happens when following the law does not lead to just and fair decisions? Judicial independence and the rule of law, like democracy, are important, but they do not guarantee freedom and justice; the details of the law matter too. That may sound like an obvious point, but it's one the Bush administration seems to be missing when it says the U.S. model of liberal democracy should not be imposed on countries with different traditions. To the extent that countries such as Afghanistan and Iraq put their own spin on democracy, they are apt to be less free and less just. Perhaps the president believes, despite his crusading rhetoric, that compromises with tyranny are necessary for the sake of stability. But in that case he should not be surprised when one of the nice new democracies he creates executes an infidel.

Comments

|3.24.06 @ 10:57AM|#

Those foolish, unsophisticated Russkies.

What we would do, here in the US, is have Comrade Shcherbinsky interrogated in the hospital, while loaded on painkillers, until he confessed to occasional drug/alcohol use sometime in the indefinite past. We would have his blood taken from him while he's all dazed out and tested for drugs and alcohol, repeatedly, until he managed to fail. If he's got 0.00 when he is admitted to the hospital, that's fine. Just do the test the next day, after he's loaded on pharmaceuticals and anaesthesia, and eventually there will be a positive. These tests are not so perfect.

Then he'd be sentenced to 10 years and the general public wouldn't mind one bit. After all, he got what he deserved, right?

|3.24.06 @ 11:05AM|#

I'm reminded of Voltaire and his comment on Christianity. To paraphrase: I tell you to rid yourselves of this monster, and you ask me what you will replace it with.

|3.24.06 @ 11:06AM|#

I could understand your stance, Jacob, if this weren't a victimless crime. Since victimless crimes are a mockery of the law, reason and principle are already flushed down the toilet. We should let the Afghanis enforce their law, then snatch them and try them for crimes against humanity. Killing harmless people one at a time is no different than killing them in groups of 250 in a gas chamber.

The only problem is "we", since we've snatched up lots of Afghanis and thrown them in Gitmo for reasons no better than this.

|3.24.06 @ 11:28AM|#

"The only problem is "we", since we've snatched up lots of Afghanis and thrown them in Gitmo for reasons no better than this."

Heck, you don't even need to invoke the wrath of torture apologists to make this point - I can point to thousands of U.S. citizens who are subjected to *wink, wink* "marriage" behind bars for nothing more than selling something to someone who wanted to buy it.

And this is the system we wish to export to the world at the point of a gun?

|3.24.06 @ 11:47AM|#

When people are allowed to convert to Christianity then the terrorists will have won! Oh, wait, wait, that one doesn't work.

|3.24.06 @ 11:51AM|#

Sad to say, some societies may not be ready to have any new model of government thrust upon them over a short period of time. Maybe a nation could be assisted in drafting its constitution so that there is a gradual transition to a government that promotes widely held standards of fairness and justice. Has any nation ever done that, though? Does anyone know how?

Arguments about non-intervention, self-determination and practicality should prevent the U.S. or any other country from trying to impose any form of government on another nation. Perhaps if there were a mandate from the populace in the "target" country to seek assistance from the outside, it would be OK-- but only to assist, not to impose.

Given that we shouldn't meddle, what else can we do when confronted with situations like those in Jacob's article? I suggest that we turn our attention inward, and make this country a shining example of what a "good" government should be, and then speak out, but only speak out, when we see egregious departures from that standard. Make this country one in which tolerance works, and where it is widely regarded that justice prevails.

The situation becomes more difficult when religious beliefs are institutionalized into the laws and framework of government. But I can't think of any other way but the above to cope with that.

CB.

nmg|3.24.06 @ 12:46PM|#

But 9/11 changed everything, don't you see?

nmg

|3.24.06 @ 1:03PM|#

Judicial independence and the rule of law, like democracy, are important, but they do not guarantee freedom and justice; the details of the law matter too. That may sound like an obvious point, but it's one the Bush administration seems to be missing when it says the U.S. model of liberal democracy should not be imposed on countries with different traditions. To the extent that countries such as Afghanistan and Iraq put their own spin on democracy, they are apt to be less free and less just. Perhaps the president believes, despite his crusading rhetoric, that compromises with tyranny are necessary for the sake of stability. But in that case he should not be surprised when one of the nice new democracies he creates executes an infidel.

As I've commented elsewhere, there's a difference between this kind of thinking in Iraq, which was an elective war, and this kind of thinking in Afghanistan, which was a war of self-defense. We have no business attempting the Sisyphean task of remaking Muslim culture by way of Iraq. Our presence in Afghanistan, however, is a function of self-defense--the former regime there collaborated with terrorists who attacked us. As a result, our government had a responsibility to the American people to replace that regime with something benign.

Let the Afghans make a backward looking hell hole if that's what they want--so long as their government is no longer a threat to the American people, as a matter of foreign policy, I don't see why we should care. On a personal level, of course, liberty loving people everywhere should condemn injustice wherever and whenever they see it. ...but the President's responsibility is to the security of the American people, not the rights and liberties of the people of Afghanistan.

...and if we don't want the President to take responsibility for remaking the culture of the Muslim world, then we shouldn't hold him responsible for cultural mores in Afghanistan.

|3.24.06 @ 1:38PM|#

Make this country one in which tolerance works

Too bad our government makes a lot of money with zero-tolerance policies. The war on drugs is a complete failure, but the war on tolerance has been pretty damn successful, judging by the calls for less and less tolerance.

|3.24.06 @ 2:09PM|#

This is why we need to stop talking about "democracy" and start pushing Capitalism, the only politico-economic system in which individual liberty is the paramount goal.

|3.24.06 @ 2:18PM|#

Bill,

You can't have capitalism without order. Otherwise you have anarchy.

JMJ

|3.24.06 @ 2:32PM|#

"You can't have capitalism without order. Otherwise you have anarchy."

You need to google "ancap".

|3.24.06 @ 2:34PM|#

Honestly, Jersey, not to suggest that opposition views aren't welcome here by commenters and poster alike--I'm sure they are--but sometimes I wonder if you've got a handle on what it is that libertarians are all about. ...if I knew you did, I might respond differently to some of your comments. Anyway, just in case you don't, there's a pretty good (but not perfect) primer at Wikipedia, here.

|3.24.06 @ 2:53PM|#

I think I have a fair grasp on what libertarianism is all about. I actually considered myself "libertarian" when I was younger. Though I do still consider myself a Civil Libertarian, I have come to find that Economic Libertarianism is almost invariably used as a cover for want of misbehavior.

I've asked people a million times, for example, "What regulations would you like to change or do away with?" Typical responses include, "Sexual harassment laws," or "equal opportunity laws," or "environmental regulations," or payroll tax-type stuff like workman's comp.

But when it's your wife being harrassed, or your home loan denied because of your race, or your well water soiled by the next door factory, or your income lost due to a workplace injury, all of a sudden the tone changes.

Economic Libertarianism, to me, is all about shirking social responsibility in the names of greed and lust. Libertarianism is a great baseline, like Human Rights, but you work up from there to a more realistic approach. After all, trusting the private sector to do the right thing is just as stupid as trusting an other type of power. And money is perhaps the greatest power of them all.

JMJ

|3.24.06 @ 3:37PM|#

JMJ,

Curious as to what you consider "misbehavior". Can't recall anyone here posting on this site in a serious tone advocating more murder, theft, battery... I'm all for social responsibility, but coercing people into it ain't socially responsible. People clamoring for more "social responsibility" can't come up with a way to do it without advocating sate-sponsored murder, theft, or battery so I'm curious to see where you stand on such things.

Especially telling is the use of the word "realistic". Often times such a word is loaded with such personal bias and ignorance that the person claiming to be realistic is actually anything but. The living-wage arguments come to mind. It's fair to criticize libertarians for libertopian tendencies, which is often why libertarians tend to point out the dystopian results of the foolish measures enacted by conservatives, liberals, and progressives. For one to think libertarinas have had much influence on US public policy and legislation in the 20th century and beyond is to be rather unrealistic.

|3.24.06 @ 4:13PM|#

Russ says, "For one to think libertarinas have had much influence on US public policy and legislation in the 20th century and beyond is to be rather unrealistic."

No shit. It's quite obvious that people believe the rhetoric. The Repubs have never been very libertarian, even though they talk a good game, but instead are way more into crony capitalism, which I think borders on fascism, than laissez-faire capitalism.

Going back even further, companies have always used their money and influence to buy regulations entrenching themselves into positions of even more money and influence. So no, JMJ, I don't trust big corporations, either. But to say that increased gov't oversight is going to magically make corps do the right thing is absurd.

|3.26.06 @ 3:59PM|#

This is what happens when the people who make policy do no bother to study history, and get caught in grandiose ideas of spreading democracy abroad, after which will dawn a new era of prosperity and peace, and the seas will turn to lemonade.

They imagine that Democracy is the panacea, the balm of Fierabras with can cure anything from a mild told to advanced cancer, and not bother to see the pitfalls

Democracy means majority rule, no more no less, and what happens when the majority has no ingrained respect for the rights of others? You have to believe in the innate goodness and wisdom of human beings to think that the best result will always result from a free and fair vote.

(What results from a free of fair vote is a) a very good idea how far people are going to go with your proposals and b) a way to hold people to their commitment later when they are having second thoughts. Both are very useful, but they do not guarantee the benevolence or wisdom of hte result)

The question, what if the people of Irak, democratically decide that the Sharia is the law of the land? What if they too decree that converting to Christianity is a crime? How do you explain to the religious right that you are sending your children to die to defend the rights of Muslims to kill Christians?

This is what happens when you do not study history and think that you can start a new order from the ground up.