A Death, a Life, and Justice

My father, Hilton H. Dier Jr., died on April 27. He was 93 years old. He had suffered a severe stroke three days before. Except for those who knew him and loved him, it was unremarkable; one old man among thousands.

The poignant fact that ties him to the present crisis was that from the time he was put in the ambulance to the moment of his death he was separated from his loved ones. The necessary restrictions of the pandemic prevented us from being at his bedside. We had to wait for his COVID19 test to come back before we could visit. I was notified of the negative test on that Monday and was driving to the hospital when I got the call. I sat in my car for a few minutes, in the parking lot of a town garage, and then drove the last half hour.

That’s the double cruelty of our time. People die alone. People grieve alone.

That was his death. What of his life? You can read his obituary here.

Of course, it is the tiniest sliver of the real man. I can’t give you the years I spent in his company. I can tell you that he was generous, but that word doesn’t capture the instinctive quickness of his giving or the unconditional nature of it, or the thousands of particular instances. I can tell you that he was full of stories, but I lack the time, the talent, and the space to give you an account of them. He was made for the term raconteur. He also delighted in delivering outrageously improbable statements to my friends, with a poker face of cast iron. My mother would tell them, “You have to remember not to believe a single word that comes out of his mouth.” He was, of course, honest in all things non-satirical.

He was happiest among guests. He was in his element when cooking, and serving food and drink to his friends. He loved the hubbub of voices. He was renowned for this hospitality from his college days. Even when he could barely walk he would automatically ask me “Can I get you anything?”

But how to get at the core of the man? His career was in law. Really, his career was in justice. A childhood friend of his told me that he was the kid who talked people out of fighting each other. As a teenager during WW2 he stood up against bullies who went after his Japanese-American friend Eddie. He stood up for himself in the Army against a lieutenant who decided to harass him. (essentially, “Court martial me or get off my ass…sir.”) In his work in civil court he saw his task as helping people to resolve conflicts, not in terms of winning and losing. As to his fairness in criminal court, I can say that he sent a number of people to prison multiple times, but none ever held a grudge against him. He was on a first name basis with some of them, if his first name could be construed as “Your Honor.” (“What was it this time, Bucky?” “Well your honor, it was like this….”)

I was talking with him once about the power of judges, and I can’t quote him exactly, but he said something like this: A judge has immense authority. A judge can put you in prison, and that’s a terrible place. A judge can take away your money, your house, or your business. A judge can even decide whether you can have your own children. That’s why, when someone stands in front of me in the courtroom, it doesn’t matter how they are dressed. Their religion doesn’t matter. Their income doesn’t matter, or their politics. It doesn’t matter if I like them or they like me. I have to rely on fact and law, law and fact.

And there we have an approach to a theory of justice, a corollary to John Rawls’ theory of the “person in the original position.” That is, what rules would you write for the world if you were about to be born, and didn’t know who you would be? Critics noted that none of us can really put ourselves in that state of mind. Nevertheless, we can aspire to it. This brings me to an essay I wrote as a gift to my father. I think it holds up.

What is Justice?

For my father on his 75th birthday, February 16, 2002

First, what is not justice?  Justice is not revenge, or emotional satisfaction for the victim of a crime.  Justice is not a symbolic equality between a crime and its punishment.  Justice is not the imposition of harsh penalties as a deterrent to potential wrongdoers.  Justice is more than the mere administration of law.  Laws are, by necessity, generalities.  No set of words, however long, could cover the particulars of every human situation.  The literal application of law will rarely result in anything recognizable as justice.

Behind every law is an intent, the so-called spirit of the law.  It is only partly available to us through the whereas’s and definitions that sometimes precede the body of legal text.  Some of the meaning of a law’s intent comes from the context of all the other laws that surround it.  Societal laws, like scientific ones, come in bundles.  Some comes from the history of how the law has been interpreted in the past.  Some of a law’s intent comes from the beliefs and customs of the society in which it exists.  A law has no meaning by itself, in the abstract.

So, justice could be defined as the administration of law in such a way that it fulfills the spirit of the law.  This is achieved by interpreting the law in light of its own text, the body of law that surrounds it, case histories, and social norms.

So far, this sounds like an academic exercise, and yet the most important elements are not yet in the definition.

Justice requires impartiality.  The most learned legal practitioner with the most encyclopedic memory for case law and an anthropologist’s understanding of culture cannot dispense justice while harboring prejudice.  A judge must leave on the steps of the courthouse all social prejudice, political belief, religious fervor, and even distaste for a particular style of clothing.  This is an impossible task, so a judge may be judged by how hard he or she strives for that ideal, and how comparatively small a factor it becomes.  Even the appearance of prejudice must be shunned, since the provision of justice requires the cooperation, and therefore the respect, of the populace.

Justice requires humanity.  A judge must have a real compassion for those who enter the courtroom, and an equally clear-eyed understanding of the age-old weaknesses of our species.  Self-righteousness, even in cases of the most despicable actions, is both unbecoming and crippling to a judge.  The spirit of the law can only be served by one who, paradoxically enough, refrains from judging people because of their stupidities, their petty vices, their obstinate ignorance, or their intolerance.

So, an academic exercise has become a mushier proposition.  Impartiality is an ideal, but at least it is rational in aspect.  Humanity is a subjective concept.  How, then, do we get a grip on the concept of justice?

Kurt Schwitters was a member of the Dadaist artistic movement of the early 20th century.  Once, when asked, “What is art?” he responded “Art is what an artist spits.”  His point was that art is too various to be defined by rules about the works themselves.  It is the knowledge, skill, and ultimately, the intent of the artist that defines art.  A case can be made for the same type of definition for justice.

All the written law in the world cannot provide justice.  The cold calculations of a computer cannot provide justice.  Justice cannot come from those who lack human understanding or harbor prejudice, however deep their legal understanding.  Our legal system relies upon the just person; learned in law and history, cognizant of our culture, impartial and humane.  These qualities are rare enough individually, and the individual who possesses and exercises all these faculties should be recognized for both rarity and value.  Justice, that mediates between us, protects us from the power of the state, and restrains us in our less enlightened moments, resides in the souls and intellects of a select few.

Justice is what a just person practices. 

A Theory of Injustice

My title inverts the title of the magnum opus of the philosopher John Rawls. His book, A Theory of Justice, laid out a method by which we might find rules to govern a nation fairly.

The central technique Rawls proposes is to make policy decisions as a P.O.P., or Person in the Original Position. That is, from behind a veil of ignorance, as if one were waiting to be born. If you had no idea who you were going to be, in terms of gender, ethnicity, wealth, health, intellectual capacity, or social group, what rules would you make? This is a difficult assignment, given both our knowledge of our positions and our lack of knowledge of our prejudices, but it is something to strive for.

I’d like to propose a new technique to estimate the chances of a candidate or a piece of legislation. If you are wondering whether a candidate or a bill has a chance of succeeding, look at it as a P.I.M.P. That is, a Person In a Millionaire’s Position. Imagine that you have a net worth of at least a million dollars and an annual income to match. Does the bill or candidate in question appeal to you? Will the taxes on your millions be lower? Will the employees of your business interests be more cowed and less well paid? Will the regulations that presently classify your preferred business practices as crimes be repealed? Well then, said candidate or bill has a good chance. It’s a sucker bet.

I’ve written about it before, but the two most important facts in American politics bear repeating. Whoever spends the most money in a congressional primary wins, nine times out of ten. Over three-quarters of this money comes in large chunks, $500 and up, from millionaires, multi-millionaires, and billionaires.

These happy few, perhaps one out of a thousand of us, determine by donation who gets to be the candidates in the general election. The difference between Iran and the U.S. is this: In Iran a small group of mullahs decides who gets to run for political office. In the U.S. a small group of millionaires performs that task. They are not going to pick people who oppose them. These like-minded legislators are not generally going to write or pass bills that dismay them.

Hence the effectiveness of the P.I.M.P. method of political analysis.

It’s all about campaign money, sure, but behind that is a warped perspective on justice and fairness. In the democracy-ending 1976 Buckley vs. Valeo decision, the Supreme Court proposed that because donating money to a campaign allowed it to better spread its message, donating money was therefore equivalent to political speech. The Court determined that the 1^st Amendment protected political fundraising from any significant restrictions. Present donation limits for individuals are as follows:

$2,400 per election (primary or general) per candidate

$30,400 per national political party annually

$10,000 per local or state political party annually

$5,000 to each political action committee (PAC)

All of this up to an aggregate limit of $115,500 per two-year election cycle.

An important point that Rawls makes about liberty and equality is that a particular liberty has to be judged in terms of its real worth to various individuals. To Bill Gates, that $115,500 limit is worth $115,500. To 99.9% of Americans it is worth a small percentage of that. It brings to mind the statement of the writer and Nobel laureate Anatole France: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” Here, it allows both the bank CEO and the minimum wage retail clerk to donate the price of a Lamborghini. That isn’t true political equality.

I look at it as the moral equivalent of the Americans with Disabilities Act, which requires handicapped accessibility to public accommodations such as polling places. A cruel person might look at a paraplegic in front of city hall and say, “Hey, if that guy really wanted to vote he’d drop out of that wheelchair and drag himself up the stairs with his arms.” Likewise, if the other 99.9% of us wanted something like political financial parity we could sell our houses and/or belongings, live in discarded boxes, eat mac and cheese, and donate 90% of our earnings to political campaigns. We are the financially handicapped, sitting at the bottom of a long flight of stairs, looking up at the receding backsides of Lloyd Blankfein and the Koch brothers.

Over and over again we hear on the news: “This bill is running into opposition from the (X) industry.” Insert banking, health insurance, pharmaceutical, oil, auto, mining, or whatever behemoth fits. We should be able to say “So what?” “Hey, this new drug law is running into opposition from heroin dealers.” Good. Fuck them, and the (X) industry likewise. Sadly, we can’t ignore them or tell them to back off. They choose our politicians for us.

And it’s getting worse. The Citizens United decision opened up the political money game to corporations in a more direct way than ever before. Anonymous millionaire donors are creating ad hoc political organizations in the last months of this campaign season. A great flood of illicit cash is rolling over our political system.

It’s time, past time, to concentrate, folks. We all have our particular subjects – education, women’s rights, the environment, fiscal responsibility, energy, labor, whatever. We’re dithering away our last years of democratic opportunity. We still can vote, and we still can speak freely, if not with the same expensive loudspeakers available to the CEO class. We need to stop focusing on symptomatic issues and personalities and get to the core of the problem: the way we (?) choose the people who make the decisions. Change the process and change the results. Given the plutocratic majority on the Supreme Court, it may take a constitutional amendment to do the job. Otherwise we’ll be seeing the world through the eyes of a P.I.M.P.