“Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”
-James Madison
As I open my web browser each morning and confront the scrolling news feed I cannot help but feel like an unemployed homeowner staring down at a growing web of cracks in the concrete of my foundation, glancing furtively at the interior walls to find evidence of sagging. The erosion of our civil society seems evident from the questions of fraud in our elections, to popular unrest against our police and justice systems to widespread disbelief and disregard for consensus about reality itself. We must ask ourselves the question, how did we let it get to this point and can this house even be restored?
In our Enlightenment Liberal societies we have replaced the priesthood as the symbol of our society's ethical legitimacy and replaced it with the secular judiciary. Over the last 300 years secular justice has replaced divine mandate as the fundamental glue of our society’ cooperation. As the priests, clerics, monks and nuns were the stewards of the symbolic legitimacy of our governing bodies so to have our judges, prosecutors, defense attorneys and clerks become the symbolic custodians of our society’s conceptual validity.
On both sides of the political spectrum, parties are pounding on the gates of liberal society screaming illegitimacy and demanding ruin. Each day these voices appear to edge closer to the center, folding more people into their cause. On both the far left and the far right we observe condemnations of our justice systems coming to a head in 2020 alone through the popular George Floyd protests against individual justice and the pervasive accusations of deep state extrajudicial actions against collective justice. Both sides recognize grievances against our justice system, the symbol and keystone of our entire culture’s sanctity.
“Representative government and trial by jury are the heart and lungs of liberty. Without them, we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”
- John Adams, 1774
When our founding fathers in the United States established this experiment in secular civil society they drew upon those “rules laid down by the greatest English Judges, who have been the brightest of mankind” [1] to establish a system in which individual innocence was of greater importance the punishment of the guilty. John Adams asserted “it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished…[for] when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever. “ [1]
Our forefathers bore witness to the age of the “Auto-da-fe’s” or acts of faith. From the 15th century to as far as the 19th century, accused heretics and apostates were tortured until confession was received and then again publicly tortured and executed to ensure the legitimacy of the governing order. From the Auto-da-fe’s of the Spanish, Portuguese and Mexican inquisitions to the violence of the 30 years wars and even the communal executions of witches across the American colonies, the viewpoint that to be accused was equivalent with guilt was reinforced by the the only absolution to accusation being in the execution itself.
As this sentiment which made individual innocence subservient to punishment and power destabilized European societies our founding fathers rejected this dying benchmark for legitimacy of the state and replaced it with a framework based around individual liberty. In order for this system to work, innocence must be superior to punishment for “for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public…”[1] however the deprivation of liberty by one another and especially the state is the most grievous moral offense which risks cracking the very legitimacy of the system itself. It is with this that our forefathers set the bar high for proving guilt and proposed the very novel ideas of the presumption of innocence itself in order to protect the legitimacy of this fragile civil experiment in governing.
“That it is better one hundred guilty persons should escape than that one innocent person should suffer is a maxim that has been long and generally approved.”
-Benjamin Franklin, Letter to Benjamin Vaughan, March 14, 1785
Returning to our present day, we must ask ourselves how we have gotten to a point where the very legitimacy of our system has been called into question. Where there appear to be as many voices calling to “tear down the system” as those who wish to embark on the difficult work of reforming it. We must track these back to the symbolic stewards of our system’s credibility, our Justice system. Despite the triumphant claims that we are the “freest” country in the world, it is no surprise to find that those parties demanding destruction of the liberal order have criticisms of our justice system at the heart of their words. The very movements of civil discord in 2020 revolved around protests against our criminal justice system on the left and against our civil justice system on the right. These movements, as different as they may appear, are united in a rejection of our judiciary as adequate stewards for ensuring the virtue of justice in our society, the value which has replaced faith as the legitimizing factor of the prevailing order.
It is not difficult to conceptualize the very real criticisms that come from these factions as well. Our criminal justice system is beset by factors which are more akin to the Auto-de-fe than to our idealized conceptualization of the jury trial. The accused are arrested by police officers with dubiously justified force, reason and public trust. Often these individuals are overcharged, officers assuming the prosecution will deal with it. Prosecutors utilize these charges to threaten the accused in order to “confess” to charges they may or may not have committed while using the mechanisms of the bureaucracy to further intimidate, threaten and delay the usage of the very system our forefathers devised, the jury trial. All the while continuing to pressure for acceptance of a plea deal, the modern day equivalent of the sale of indulgences by our secular priesthood.
Our civil justice system appears no different in the communal zeitgeist. Our culture is beset by stories in which families and individuals are bankrupted and trampled by the byzantine bureaucracy of the justice machine. Tales abound of citizens brought to ruin without having even lost the case as the war of attrition and time is won by large entities with boundless resources and the complainants and defendants are bled dry by the mercenaries of their legal defenses. In order to bring suit on behalf of the individual or the citizen it is as if one must resign themselves to martyrdom and destruction as the apostates of the 16th century who burned in refusal to give up their faith.
This is all further compounded by the economic realities of the populace which makes justice even further from the grasp of the citizenry. In a country where 39% of Americans do not have the cash on hand to cover a $400 emergency (at the peak of our economy no less) [2], then how is one to absorb the costs of bail and of lawyers which can amount to thousands of dollars required within a couple days. Add into this the potential loss of job or housing due to prolonged incarceration and it is not difficult to see how these factors are functionally forms of tortuous coercion. Economically, emotionally and sometimes even physically through the traumas of incarceration the screws are turned by the bureaucracy of the state in the name of “justice.” All of this occurs while the accused is laughably presumed to be “innocent.” It is no wonder that so many elements of our society have accused our secular priesthood of justice of corruption and debasement like those figures who nailed their treatises on the church doors and in public squares in the 15th and 16th century.
“I, Master John Hus, in chains and in prison, now standing on the shore of this present life and expecting on the morrow a dreadful death, which will, I hope, purge away my sins, find no heresy in myself, and accept with all my heart any truth whatsoever that is worthy of belief.” - Jan Hus
For those of us who believe in the values of liberal society, of individual liberty, of justice, and the free market of ideas, what are we to do as those people baring down the gates and seeking to put the city on a hill to the flame. It is not suitable to blame them as crazy zealots who hate our society when we can see their justification amongst their grievances. In order to save our society we must look within to find the rot festering amongst the weight bearing substructure of our culture and excise it. As the critics on both the far left and far right have asserted, that catharsis must occur in our own judicial system. Our priests of justice, the judges, prosecutors, attorneys, clerks and police must commit to reforming a system which serves individual liberty rather than its own economic KPI’s.
The complacency, bureaucracy and self serving inhumanity of our most sacred system must be brought into the light and restored to a shining beacon of legitimacy. Like in ages past, corruption of the priesthood was equated with illegitimacy of the system itself, unraveling the social fabric. So too does incompetence, maliciousness, and violations of our enshrined ethical principles by our secular judiciary who are given the duty to hold these values sacred in their proceedings lead to the disintegration of the legitimacy of our system in the eyes of the people. Unfortunately those stewards of that foundation of our culture have for too long succumbed to a fundamental conceit. It is not justice that is derived from the power of law but in fact the opposite. The authority of the law derives from the preservation of justice in the society.
“You seem...to consider the judges as the ultimate arbiters of all constitutional questions – a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our Judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is, boni judicis est ampliare jurisdictionem, and their power the more dangerous, as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party, its members would become despots.”
-Thomas Jefferson, to William Charles Jarvis, September 28, 1820
Cover Photo: Auto-da-fe by Eugenio Lucas Velazquez (1853)
[1]: https://founders.archives.gov/documents/Adams/05-03-02-0001-0004-0016
In Line Photo: Saint Dominic anachronistically presiding over an auto-da-fe by Pedro Berruguete (1495)
[2]: https://www.federalreserve.gov/newsevents/pressreleases/other20190523b.htm