Monday, 29 June 2009

George Tiller, law and lawlessness

It is often said, not least by me, that the best indication that a lawyer is lying is that you can see his lips moving.

There are, however, other things to say about lawyers, not all of them abusive. For instance, they have a deep respect for the law. That’s not to say that that they are always law abiding: Richard Nixon’s government was stuffed with lawyers, and many of them ended up in gaol, and several others should have joined them there.

No, lawyers respect the law like a cabinet maker respects his tools: it is the instrument of their trade.

This made the preponderant role of lawyers in the foundation of the United States particularly important. The first president, George Washington, was a planter and a soldier but he was followed by the lawyer John Adams. Though he would later rise in revolution against Britain, Adams showed his commitment to the first principles of justice by defending, against a charge of murder, the British soldiers who had killed five protestors in the Boston massacre of 1770. Successfully. In front of a Boston jury.

The third president, Thomas Jefferson, was the lawyer who drafted the Declaration of Independence.

The fourth president, James Madison, was a lawyer and the leading figure in drawing up the US constitution. That extraordinary document is just 7000 words in length, took 55 people to draft in under four months and has served its country well for over two centuries. By contrast, the draft European Constitution is 66,000 words long, took 105 people nearly eighteen months to prepare and has never been ratified.

Among its other purposes, the US Constitution guarantees a series of fundamental rights.

To judge by media discussions of Democracy, the most fundamental of these is the right to hold free elections. They’re certainly important, as the people of Iran are showing at the moment – their experience proves the old principle that it isn’t the vote that counts, but who counts the votes.

Ironically, it seems likely Ahmedinejad may have won the Iranian election anyway, as his support in the country probably outnumbered the opposition to him in the cities. So the leadership have almost certainly rigged an election they had won, undermining their own victory by destroying their credibility. Perhaps that’s comforting to us in the West: it suggests that Iran is run by politicians at least as incompetent as our own.

The special contribution of the US to electoral Democracy is that the founding fathers introduced what we could call mass suffrage. It certainly wasn’t universal suffrage: no women had the vote, few blacks, no native Americans. Even so, while in Britain it took huge controversy to introduce the Reform Act of 1832, enfranchising 650,000 men out of a population of 14 million, the US presidential election in the same year saw nearly 1.2 million cast ballots, to say nothing of those who chose not to vote, out of a population of only 13 million.

The beauty of a mass franchise is that you don’t get little groups of privileged men meeting in clubs and deciding the outcome of elections. Today in the US those groups still meet in their clubs, but they can’t just dictate results – they have to buy them through contributions to campaigns and payments to lobbyists. In other words, at least it hits them in a vulnerable organ, the pocket book. That has to be progress of a sort.

In any case, is the right to vote really the most fundamental in a Democracy?

The US Constitution also guarantees freedom of thought and of expression. They’re not the same thing: as the philosopher Kierkegaard pointed out, ‘People demand freedom of speech as a compensation for the freedom of thought which they seldom use.’ Nowhere is that better demonstrated than by the press, particularly by such toxic examples as the British Daily Mail. Some years ago, it ran a campaign against the Measles, Mumps and Rubella vaccine. As a result, many parents refused to immunise their children. Measles is now returning and recently the Mail lambasted the government for failing to maintain a rate of vaccination that would guarantee herd immunity. Clearly, staff on the Mail feel that the right to free expression exempts them from any need to exercise freedom of thought. Though perhaps in the case of the Mail what I’m taking for lack of thought is really just lack of conscience.

These rights, however, still don’t get us down to what I believe is the bedrock of Democracy. That is the rule of law. This was brought home to me in 1982 when I visited East Germany. That was a nasty regime. If you haven’t seen that extraordinary film The lives of others, add it to your list of must-sees. Apart from anything else, where I used to think that Casablanca had the best last line of any film ever, The Lives of Others ends so brilliantly that for me it has pushed Humphrey Bogart into second place. And the film shows just how vicious and corrupt East Germany could be.

For all its brutality, East Germany generally accepted the rule of law (with notable exceptions: the rule was general, but like most rules, not universal). Though the law was often unfair, you knew what it was and if you didn’t break it, you were unlikely to have problems with the authorities. This is a crucial step forward from tyranny, where you can be oppressed just because your face doesn’t fit, because a local satrap fancies your wife or, indeed, your husband, or simply because he’s in a bad mood. By accepting the rule of law, those in power accept constraints on their authority.

But even in the US, rule of law is not universally accepted. Another film not to miss is Frost Nixon if only to be reminded that Richard Nixon really did answer a question about the legality of the actions of a President by claiming, ‘When the President does it, that means it is not illegal’. That’s the kind of claim an absolute monarch would make (Louis XIV of France proclaimed the principle ‘une foi, une loi, un roi’, ‘one faith, one law, one king’, which seems to equate faith and law with the king); it is precisely that idea of power that the founding fathers of the United States rose up to defeat.

That’s why it’s so fascinating to see the attitudes of the American anti-abortion movement towards the recent murder of George Tiller, who carried out late-term abortions in Wichita, Kansas. Randall Terry, who founded the anti-abortion group Operation Rescue, said of Tiller’s killing ‘George Tiller was a mass-murderer and, horrifically, he reaped what he sowed.’ The word ‘horrifically’ is there to line Terry up on the side of angels; leave it out and you have a statement condoning the use of murderous violence against a man who has broken no law. We’ve seen plenty of examples of that kind of language recently, for instance from the wilder fringes of fundamentalist Islam, when dubious imams insert weasel words condemning terror into their statements supporting terrorists and abusing their victims. That’s perhaps appropriate, since the killing of Tiller had much in common with terrorism.

George Tiller was acting within the law. The anti-abortion movement doesn’t like the law and is investing effort and money, perfectly legitimately, to get it changed. But the murderer of Tiller acted outside the law. No doubt he felt he was following another, higher law, just as Nixon did. Just as the 9-11 terrorists did. Like them he crosses a dangerous line and threatens us all. And he undermines the very foundations on which the United States was built, even though he probably believes that no-one has a greater love for his country.

Those brave lawyers who launched the whole venture in the first place must be spinning in their graves.

No comments: