“A child says: ‘It’s my toy’. That’s property law,”
“A child says: ‘You promised me’. That’s contract law.”
“A child says: ‘He hit me first’. That’s criminal law.”
“A child says: ‘Daddy said I could’. That’s constitutional law.”
(Harold J. Berman)
“A child says: ‘I want it’. That’s civil law.”
Harold Berman recently appeared in the obituaries section of the New York Times. Outside the purview of legal scholasticism, Ivy elites, and the esotery of Cold War technical ideology, he is known to very few Americans. His influence was enormous, though, and his seminal work, “Law and Revolution” (1983) is often quoted among the most important books on law in recent generations.
Berman rejected the conventional idea that modern legal systems began in the 16th century. He argued that the 11th century rise of papal authority, with its own cannon law, jump-started modern law. Further, he extended his thesis in the morphing of ‘law’ by arguing that the 16th century transformations of the English and the Protestant Revolutions were created by pre-existing precedents for civil revolution.
His pioneering work, arguing that the commonly understood underpinnings of western law were too narrow, is more than ever applicable to the authoritarian re-ordering of American civil law. It’s federalist fraud and its police state militarism by the neo-con putsch of the Bush administration, with it’s increasing reliance on ‘extra’ legal mercenary applications, override the fundamental traditions and precedents of constitutional law.
To some opinion, the stain on Berman’s sterling reputation for legal purity within the ‘Bead Game’ of the Ivory Tower was fixed by his Faustian bargain with religious radical Pat Robertson in the writing of a brief to defend the Ten Commandments monument on the grounds of the Texas State Capital. The ironic consequences of such a position found the truth (the appropriate establishment of legal symbolism—-The 10 Commandments of the Old Testament among any others—-in situ with government institutions) applied to the underlining realities of Christian fascism in conflict with constitutional law, which while guaranteeing freedom of expression, more importantly disallowed the establishment of religion in formal American civil governance.
Berman argued that the Ten Commandments was a foundation of Texas law and noted that the Declaration of Independence invoked God. It might be noted that, technically speaking in terms of precedent , the Ten Commandments is Judaic law and should respectfully be displayed with a menorah. Berman might have also sited the substantial contributions of: The Code of Hammurabi (1760 BCE); The Constitution of Carthage (Aristotle 350 BCE); The Athenian Constitution 350 BCE); The Law Code of Gortyn (Crete), c. 450 BCE; The Constitution of the Roman Republic (Polybius after 185 BCE); and perhaps for further refinement, Augustian Law ( 60’s BCE); later Roman Law and for a bit of exotica, The Edicts of King Ashoka (3rd Century BCE).
If justice is the wife of law, reason is its mistress. And a mistress is the heart of deception, however glorious its complexity, however persuasive its reasoning's cunning, however beautiful is allure.
The letter of the law is addictive, as any jail house lawyer will privately admit. Its depths and details lie not in the devil, but in the exquisite beauty and the refined glory of generations of collective thought. When directed to the freedoms of human dignity, law is justice. When justice becomes a commodity, as it has in our age of the commercial Spectacle, social instability and revolution follow. On a par with the decline of once great American intuitions is the accelerating corruption of its legal applications, the destruction of its founding principles, and the collapse of its democratic liberties.
Setting aside for reason’s sake over 4000 years of accumulated legal debris and precedent, it is most beneficial to find buried in the heart of Enlightenment philosophy and American democracy the crown jewel of its genesis: The Golden Age of Athenian democracy. The extraordinary fluorescence of an infant democracy raised the nation state of Athens to supreme status in the world’s history. It’s turbulent dynamic richness and titanic cultural achievements still shine through time as sparkling mythic excellence.
It all ended after a hundred and fifty years or so, done in by the pursuit of hedonistic empire and by aristocratic tyrants consolidating the power of the citizens into the privilege of the few. In an opinion befitting the irony and tragedy of Athenian decline, it might be said against the grain of propaganda’s history that American democracy began its death throes in earnest with the Reagan administration , its no-holds-barred sanctification of predatory capitalism, destruction of the vast working class system of economic justice and the buildup of a controling police state. Athen’s nemeses and avatar of destruction, Alcibiades, is now none other than George Bush. While the former was the heroic face of destructive excellence, George Bush is the fool’s face of tragedy, and his abandonment of democracy for tyranny reflects the repeated tide of Santayana’s observation that history repeats its self—-an essential prion of tragedy.
The fabric of American democracy is law, the accumulation of two centuries of refinements based on such principle stating documents as the Declaration of Independence, the Constitution, the Amendments, the Bill of Rights, and thousands of precedent setting adjustments as was intended by the framers to prevent exactly what has become evident: the establishment of an absolutist executive branch or kingship in perfect tune with the demands of autocratic corporatism to control and centralize all sources of production and wealth.
The nuts and bolts of dissolution and corruption is not an august affair, but one of a systemic viral infection that kills its host in a thousand minor slights against vigorous life. So entranced by the magical liberalism of Middle Class thinking regarding human rights is the current disfunctional holograph of an American population in denial about police brutality, glorified by reality shows, which function on the persecution of sub middle class citizens. Assuaged is the illusion of moral order and safety in fortunate suburban dreadscapes.
There was barely a blip in the national consciousness, when recently an airport incident revealed a distraught 120 lb, upper middle class woman was crushed by over a thousand pounds of 'private' security and died in the police holding tank. In a classic textbook page of the police accountability manual, the police investigated themselves and found themselves non accountable and thus blamed, true-to-form, the victim for her own brutal death. Then there's the 'Jenna Six,' another textbook case of old Southern racial prosecution. The lying conduct of prosecutor Mike Nifong in the recent Duke University rape case is the other side of the coin. The South has always been the best bellweather for the state of America's civic mental health. The election of George Bush as its representative avatar was the advent of our now unfolding future.
The principles of law in a vibrant democracy rest on two major pillars: truth in essence and its pursuit of justice. The praxis which intertwines these principles is the discernment about what is merely real and what is irrevocably true. We Americans now live in a capitalist, consumer driven dream spectacle that no longer adheres to differentiations between what is real and what is true. The lie is supreme on all levels of cultural interface. The lie has destroyed America from its common roots to its most exalted office—- the Presidency.
Tyranny’s philosopher for ‘The New World Bush Order' can be readily found as recently as the early 90’s in the writing of Patrick Moynihan, whose loathing of American democracy came to be best expressed as “defining deviancy down:”
It appears to me that this is in fact what we in the United States have been doing of late. I proffers the thesis that, over the past generation (—–) the amount of deviant behavior in American society has increased beyond the levels the community can afford to recognize and that, accordingly, we have been re-defining deviancy so as to exempt much conduct previously stigmatized, and also quietly raising the “normal” level in categories where behavior is now abnormal by any earlier standard. http://commonsense.ourfuture.org/defining_deviancy_down
Moynihan’s fascist screed was not recognized as such at the time, but his noblesse distaste for the great unwashed masses of American democracy could, at times, equal and excel that of another old would-be tyrant, William Buckley—-the inventor of American aristocracy and the nuanced ,artificial, faux British sneer. Moynihan, Buckley, and their less talented spawn at Fox News are convinced that democracy is the biggest problem in America, and stems from the free choice of the common lot to engage in ‘destructive’ behaviors not conducive to Puritan controlled hypocrisy and corporate authorian rule, aside from addictive and profitable consumer habits.
When the law lies, democracy dies. Clearly, the most heinous brand of lying is the giving of false testimony. The absolution of a guilty Scooter Libby for perjury (testilying) and rewarded with lucrative freedom is echoed in the president’s signing statements, which nullify by emperor fiat the will of the American people through it’s elected Congress and the common practice of police falsification to align arrest and prosecution with the agendas of governing will.
Is it any wonder, in the current climate, that a thug like Rudy Giuliani would be seriously considered presidential material by the Republican faithful? Come to think of it, even a rightward sliming amoeba would qualify after George Bush. Consider:
I represented, on appeal, a lawyer accused of corruption. The major witness against him was a policeman who acknowledged at trial that he himself had committed three crimes while serving as a police officer. He denied that he had committed more than these three crimes. It was subsequently learned that he had, in fact, committed hundreds of additional crimes, including some he specifically denied under oath. He too was never prosecuted for perjury, because a young Assistant U.S. Attorney named Rudolph Giuliani led a campaign against prosecuting this admitted perjurer. Shortly afterward, the policeman explained:
Cops are almost taught how to commit perjury when they are in the Police Academy. Perjury to a policeman – and to a lawyer, by the way – is not a big deal. Whether they are giving out speeding tickets or parking tickets, they're almost always lying. But very few cops lie about the actual facts of a case. They may stretch an incident or whatever to fit it into the framework of the law based on what they consider a silly law of the Supreme Court.
Nor is the evidence of police perjury merely anecdotal. Numerous commission reports have found rampant abuses in police departments throughout the country. All objective reports point to a pervasive problem of police lying, and tolerance of the lying by prosecutors and judges, all in the name of convicting the factually guilty whose rights may have been violated and whose convictions might be endangered by the exclusionary rule.
The Mollen Commission reported:
The practice of police falsification in connection with such arrests is so common in certain precincts that it has spawned its own word: "testilying." . . . Officers also commit falsification to serve what they perceive to be "legitimate" law enforcement ends – and for ends that many honest and corrupt officers alike stubbornly
defend as correct. In their view, regardless of the legality of the arrest, the defendant is in fact guilty and
ought to be arrested.
Many judges who listen to or review police testimony on a regular basis privately agree with Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, who publicly stated: "It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers," and that the reason for it is that "the exclusionary rule . . . sets up a great incentive for . . . police to lie to avoid letting someone they think is guilty, or they know is guilty, go free." Or, as Judge Irving Younger explained, "Every lawyer who practices in the criminal courts knows that police perjury is commonplace.”
Testimony of Alan Dershowitz House of Representatives Judicary Committe December 1, 1998
Rule 1- Most criminal defendants are, in fact guilty.
Rule 2 – All criminal defense lawyers, prosecutors and judges understand and believe Rule 1.
Rule 3 – It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some areas it is impossible to convict guilty defendants without violating the Constitution.
Rule 4 – Almost all police lie about whether they violated the Constitution in order to convict guilty defendants.
Rule 5 – All prosecutors, judges and defense attorneys are aware of Rule 4.
Rule 6 – Many prosecutors implicitly encourage police to lie about whether they violated the Constitution in order to convict defendants.
Rule 7 – All judges are aware of Rule 6.
Rule 8 – Most trial judges pretend to believe police officers who they know are lying.
Rule 9 – All appellate judges are aware of Rule 8, yet many pretend to believe the trail judges who pretended to believe the lying police officers.
Rule 10 – Most judges disbelieve defendants about whether their Constitutional rights have been violated, even if they are telling the truth.
Rule 11 – Most judges and prosecutors would not knowingly convict a defendant who they believe to be innocent of the crime charged.
Rule 12 – Rule 11 does not apply to members of organized crime, drug dealers, career criminals or potential informers. (And Executive Priviledge)
Rule 13 – Nobody really wants justice.
Social workers, human rights advocates, legal aid professionals, the homeless, abandoned veterans, low income individuals and families, the impoverished elderly, Blacks, Hispanics, the mentally ill , all know the above reality also happens to be true. That was ten years ago, and now after eight years of George Bush, David Addington, Dick Cheney, Alberto Gonzales, and John Yoo, the above is now the shark in the middle class goldfish bowl—-death by private security in a busy airport lobby. Dershowitz’s premonitions in these lawless matters has come disastrously true:
“If we continue deliberately to blind ourselves to pervasive police perjury and other equally dangerous forms of lying under oath and focus on a politically charged tangential lie in the lowest category of possible perjury (hiding embarrassing facts only marginally relevant to a dismissed civil case), we would be reaffirming the dangerous message that perjury will continue to be a selectively prosecuted crime reserved for political or other agenda-driven purposes.”
George Orwell, observing the rise of fascism during the last century, knew well that the big lie could not ultimately sustain a reality based on shifting manipulations, and that in the end, truth was not revolution, but destruction. He was the voice of Socrates speaking truth to power in Athens. If the will of the people remains as apathetic and fearful as that of the Athenian republic that murdered Socrates, we have already lost democracy and the following will just be one more failing glory in the subdued history of freedom:
THE DECLARATION OF INDEPENDENCE
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
Harold Berman was right about Law and Revolution, but who would have thought that it would be American democracy murdered in the rush to Empire and failure?
***Just One Example: "Kids On Trial" http://digbysblog.blogspot.com or for a more snarky take on lawyers: http://whoisioz.blogspot.com/2007/11/lecture-by-alan-dershowitz-to-who-is.html And then there's the rare 'right' side of things: http://andrewsullivan.theatlantic.com/the_daily_dish/2007/10/torture-or-nati.html Also, in practice: http://digbysblog.blogspot.com "You Gotta Ask Me Nicely" November 21, 2007.
Recommended Reading: "BEWARE THE MIDDLE GROUND" By Susan Rosenthal http://www.bestcyrano.org/THOMASPAINE/?p=446 and "Society of the Spectacle" by Guy Debord at http://cultureghost.blogspot.com scroll down the right hand side to 'Important Reading.'