Civic Virtue
Aristotle once said that man, at his best, under the rule of law, is the very best of animals; but man, separated from the dictums of law and justice, can become the very worst of all creatures in the entire animal kingdom. Look at history and the Holocaust to confirm all that.
If we owe a debt to ancient Rome it is in our inheritance of a prodigious legal system. The Pax Romana and the subsequent decline of the Roman Empire run parallel with the cultivation and the dissolution of Ancient Roman law. The aftermath, the “dark ages,” following the fall of Rome, some say, happened because the once civically-minded Romans turned away from the earthly rule of law in favor of a divine justice based on salvation, a higher law based on Christianity, which emphasized theology rather than civics. Fortuitously, it was the salvation of the intact Eastern Roman Empire (i.e. Byzantine Empire) and the revival of Emperor Justinian’s Codex Justinianus that brought about the resurrection of the rule of law in Western Civilization, a societal phenomenon for which we enjoy today.
The Fall of the Roman Empire
Or, I suppose to better say, we once used to enjoy.
In our postmodern age, it seems to me, we have lost our faith in the rule of law. Our society’s legal system no longer satisfies our quench for justice and action.
Several months ago, the vilified owner of the NBA’s LA Clippers said some egregious things about African Americans, which were made public by the tabloids and the like. To sum up the story, he was inexorably punished by the NBA’s commissioner Adam Sliver, who eventually forced Sterling out of the league. What was odd about it all was that the NBA didn’t rely so much on legal recourse to force him out of the NBA, but merely on its institutional powers, like “restricting him from NBA games for life” that really did him in. The litigation came thereafter between Sterling and his estranged wife, but with the NBA completely hands off. The NBA won in its battle against Sterling purely on peer pressure and institutional power, rather than by legal recourse. The owner of the Dallas Mavericks, Mark Cuban, commenting on the Sterling controversy, hit the nail on the head when he said, “there is no law against stupid.”
And now on the heels of another NBA owner selling his team because of racist comments he made via email, one should ask: since when did peer pressure and institutional power usurp the rule of law?
The NFL has a propensity to steer towards controversy. Yesterday, TMZ Sportz released video of former running back of the Baltimore Ravens, Ray Rice, brutishly punching his now wife in an elevator, knocking her out cold, then carelessly dragging her out of the elevator. Both were immediately arrested after the incident. It should be noted that TMZ, being the salivating media moguls that they are, had previously released some of the video of this domestic violence incident, specifically the part where Rice drags his then fiancé out of the elevator. That in itself was enough to promulgate public outrage. Moreover, the NFL’s initial, tepid response of a two-game suspension fueled even more public outrage. It was not until TMZ released the video of the actual assault that the NFL and the Baltimore Ravens took action by releasing Rice from the team and indefinitely suspending him from the NFL.
But, keep this in mind, Ray Rice was still going through the legal system at the time of all this public outrage, TMZ’s histrionic coverage, and the NFL’s knee-jerk reaction. After being indicted for aggravated assault, Rice had refused a plea bargain and decided to take the charge to trial. That being said, Rice has yet to be convicted. And yet he has been convicted by the public’s outrage. The lack of legal conviction likely explains the NFL’s and Baltimore Raven’s initially tepid response. Unfortunately, “innocent until proven guilty” applies only in the legal realm, devoid of any putative meaning when peer pressure drives institutional power.
The NFL yielded to public pressure. Who would have thought that public relations would be more powerful than the rule of law?
Okay, so you’re likely saying: These are all sports teams and public figures/institutions, so your thesis on the demise of the rule of law is superfluous and does not apply. That is a valid point. I’ve used current events in sports first because they’re readily available and easy to expound on. Here is a more relevant and relative example of my thesis.
In late April 2014, President Obama announced a new initiative to tackle the issue of sexual assault on college campuses. He assigned a “task force” to assess and help remedy the issue. As Vice President Biden said, “colleges and universities can no longer turn a blind eye or pretend rape and sexual assault doesn’t occur on their campuses.” This is a bold statement to lay bare against higher education. The Obama Administration went further, presenting a list of universities and colleges who need to improve their sexual assault prevention programs and initiatives, to include instituting strict and harsh punishments.
I am not so apt to believe that a majority of colleges and universities mendaciously “turn a blind eye” to sexual assault and rape. Call me a fool for being optimistic and trusting in the goodness of human nature. Rather, I believe, universities and colleges, like the NFL, abide strictly to legal recourse first and foremost. That is, they would rather let the justice system play out first before exercising their institutional powers to execute punishment.
Unfortunately for institutions, the general public, the consensus gentium, does not accord with this belief. Justice should be swift and immediate if the crime is apparently obvious.
The problem, which is at the very root of my thesis, is our legal system is lugubriously and excruciatingly inefficient. Litigation is expensive and takes too much time. Indictments take months, and then actual trials can take years! The inflation of lawyers in our society and our dubiety of all lawyers’ intentions make the general public averse to trusting the legal system. In short, the bureaucracy of our legal system is a burden and thus seemingly untrustworthy.
And because the public has little faith in gaining justice through the rule of law, many have turned to the powers of institutions (e.g. sanctions, restrictions, banishments, etc.) to attain justice. Moreover, and more disconcertingly, peer pressure is driving this obligatory use of institutional power to reclaim justice.
Now, in my mind, this kind of public peer pressure is synonymous to what Tocqueville and J.S. Mill called the Tyranny of the Majority. Both of these erudite thinkers warned in their writings about this kind of social phenomenon running rampant in a functioning liberal democracy, such as our own. The Tyranny of the Majority isn’t an abstruse idea too difficult to understand. We experience it as peer pressure in our young, adolescent years; we read about it in novels like The Crucible or the Scarlett Letter; we see it driving punishments in professional sports today.
Abraham Lincoln famously noted that with public sentiment, nothing can fail. That is absolutely true. Ironically, the extremity of that adage leads to the Tyranny of the Majority. Lincoln’s management of public sentiment in accordance with the rule of law defined his profound civic virtue during his presidency.
Granted, as a pragmatic individual, I deplore the taxing bureaucracy of our legal system and value how public pressure instigates action. Furthermore, and I truly believe this, institutions have a moral responsibility to exercise their powers for the sake of the public good. So, my own opinion, I somewhat laud the NBA’s punitive pressure on Sterling, but I’m against the vitriol and anger aimed at the NFL for being slow to action as they were likely waiting for the legal outcome to take institutional action.
Broadly speaking, though, we should be concerned about our disillusionment and lack of faith in our legal system. The rule of law for centuries has contributed to the survival of Western Civilization. Without the rule of law, the Fall of Rome left a void that consequently led to the dark ages of the early medieval period.
If we look all around us, from American Presidents’ preference for executive orders rather than going through Congress to create legislation, to the ever increasing use of the executive branch’s War Powers Resolution to enter conflicts while avoiding the legality of calling it a “war,” to watching the mainstream news media fuel the fervor of social crises to enact change by institutional edict rather than the rule of law– it seems to me that we no longer have patience with our legal system, and thus we depend on institutional power to enact change and reek justice.
The Romans wholly gave up their civic sense for the rule of law in favor of Christianity’s institutional promise of salvation. Look where that got them.
Aristotle, in his magnanimous Metaphysics, deemed man a rational animal. Without reason the rule of law is impossible. But as Bertrand Russell observed at the beginning of the 20th century: “Man is a rational animal. So at least we have been told. Throughout a long life I have searched diligently for evidence in favor of this statement. So far, I have not had the good fortune to come across it.” Is the rule of law therefore an illusion? A fallacy? Has the passions of our society driven away our right to reason?
Idk 