Sunday, August 8, 2010

Doing What is Right in One’s Own Eyes: Yigal Amir and Judge Walker

As I am sure most of you know by now, last week Judge Vaughn Walker has overturned California's Proposition 8 ban on legalizing gay marriage. In terms of gay marriage itself I have no objection. I am no more opposed to gay marriage than I am to changing the tax code or inheritance law; these are things that I have no personal stake in, do not really care about, and am perfectly willing to be convinced one way or another, particularly as part of a negotiated agreement to gain something that I actually do care about, say the destruction of the Food and Drug Administration and the Department of Education. If homosexuals are excited about a piece of paper from the government saying that they are married and gives them a tax break then I am hardly about to begrudge them it and wish them well.

Whatever my feelings about gay marriage, what I am truly concerned about is the larger picture of maintaining the covenant of law and order. A foundational principle of law is that we agree to submit ourselves to abstract universal laws even when and, in a sense, precisely when they cause harm in specific situations. You support law not because you believe that it will always offer beneficial or just results, it will most certainly not, but because you believe that whatever harm is caused by following the law pales in comparison to the overthrow of law. As such one embraces the harm as simply the necessary price to be paid to live under law.

Take the example of Yigal Amir. Contrary to what was generally reported about Amir, he was not some crazed fanatical settler, but a veteran paratrooper and law student, who decided that the Prime Minister of the State of Israel, Yitzchak Rabin, had engaged in an ill considered course of foreign policy, the Oslo Accords, which had cost the lives of Israeli citizens. As such Amir deemed Rabin as a rodef, someone who was endangering the lives of others, and shot him. Now it would be absurd to respond to Amir's claim by arguing that Rabin's policy did not endanger Israeli lives, because he and millions of people on the right believe it and are unlikely to change their minds. As long as the debate is about Oslo Amir wins, because we would be conceding to his cardinal premise that if a politician pursues a line of policy that costs the lives of citizens and if killing that politician will save lives that politician can be killed. Our argument has to be in support of abstract law. Rabin, as the lawful head of government, had the legal right to sign the Oslo Accords regardless of the negative consequences and every Israeli citizen, including Amir, is obligated to accept that fact. Either there is a lawful Israeli government with power to sign peace accords and hand over territory that it is the sovereign power over or there is no Israeli government and every man has the right to do what is "right in his own eyes," including murdering any "prime ministers" as well as their neighbors.

What would Judge Walker say if tomorrow he is confronted by a sane rational philosophically inclined man with a gun who believes that Walker has done something so bad that he now deserves to die and even that there would be a utilitarian benefit to society to kill him? Obviously it would be useless and counterproductive to debate our philosopher gunman about his fundamental premises. Clearly he has thought these through and is not likely to be convinced and furthermore to even allow such a debate is a victory for his side. What Judge Walker would need to do is appeal to the man's sense of law. He could start by telling the man about Hobbesian warfare, (see Jack Bauer's Last Hobbesian Battle) show him clips of the massacres in Bosnia and Rwanda and explain that whatever good he believes he is doing by committing murder will be outweighed by having the entire country following the same logic and turning into Bosnia and Rwanda (see Slouching to Bosnia). Next Judge Walker could speak of John Locke and how citizens sign contracts to form governments and follow the law. Finally Judge Walker could introduce his assailant to Immanuel Kant and suggest that he submit himself to Universal Law. Our formally state of nature gunman would see the light, the possibility of living in a world where people of different races, creeds and political ideologies live together without murdering each other. Now a believer the man throws away his gun and allows Judge Walker to take him by the hand as they both fall to their knees in submission to Universal Law (essentially the same thing as God, but do not let the atheists know), following by pledging allegiance to the flag of the manifestation of Universal Law in their geographic area, their sovereign State. Afterwards the cops could come to take the man away and put him in jail for several months for trespassing and threatening a judge, during which time the man could preach the gospel of Universal Law to his fellow prisoners.

Oh wait a minute. Judge Walker does not believe in submitting himself to Universal Law. The people California decided to define the theoretical concept of marriage as something between members of the theoretical categories of men and women. They never claimed that homosexuals could not marry. Thus their actions did not in of themselves discriminate against homosexuals. The fact that this de facto was something detrimental to homosexuals would have been a plausible reason to oppose it while it was being passed. Once passed, however flawed, it must be respected as in keeping with Universal Law. Judge Walker believes, though, that it is his duty, as a judge, to step in when following the law gives a "wrong" result and "correct" it thus he has betrayed Universal Law.

One wonders as to either his hypocrisy or naiveté. Is he unaware that he has handed a moral blank check to every private citizen with a gun? The fact that their "corrections" of the system might involve blood and bodies and not paper is a matter of little consequence. Gay marriage did not win the day; the real victors are the millions of potential Yigal Amirs, from both the left and the right, sane and intelligent people who make the reasonable calculation that they can advance their legitimate cause by committing crimes, even murder, for the sake of what they believe is right. (See Does Michaeli Makovi Support Anat Kamm?) Either everyone submits themselves to Law, particularly those laws they disagree with, or we will fall to Hobbesian war.


Anonymous said...

I have not read Walker's opinion, but when you write:

"The people California decided to define the theoretical concept of marriage as something between members of the theoretical categories of men and women...Once passed, however flawed, it must be respected as in keeping with universal law. "

you ignore the fact that the people of California are also bound by the US Constitution. The US Constitution and US law give the rights of 1) interpretation of the constitution and US law, and 2) invalidation of contradictory State laws, to the federal judges (with the power to appeal eventually to the Supreme Court). If the US Courts decide that the US Constitution allows even slavery or murder, then that is the law that US citizens submit to and are bound by.

Izgad said...

This would only work if we were dealing with judges ruling based on constructionist principles. The issue I am raising cuts to the heart of living constitution theory. Followers of the living constitution argue that they have the moral high ground because they are willing to be “pragmatic” and place “just” results over theory. My argument is that it is precisely this principle that undermines the very possibility of law. The moment one person gets to put what they think is right before theoretical law every person has the right.