Friday, July 21, 2006

The Importance Of Judicial Restraint 

I came across a CNN article about the attempts of people in Africa to impose order in the absence of an effective judicial system and in the presence of a corrupt police force. It reminded me of King's post Social cooperation when governments break down where he noted:
Entering into a divided four-lane road that is often backed up for blocks in rush hour, you could easily see people sit there for hours. But they don't. Today I watched (involuntarily, caught in traffic) as each car with the right of way yielded to one car without it. Order out of chaos, tacitly agreed.

I observe this in many places, and expect I will in Mongolia too -- people will create order for themselves without waiting for government to do it for them. I hope to send you such stories.

Like King's experience, the people of Cameroon are attempting to make order our of chaos with out the government's help, albeit in a different manner and with more violence:
It is 4:30 a.m. in Douala, Cameroon's business capital, and a severely beaten man with his hands lashed behind his back lies on the road in Bepanda district surrounded by an irate mob.

"Bring me petrol!" a man barks from the crowd. A boy runs to a nearby filling station and returns with a quart of fuel.

Just as the man lifts his hand to light the matches, a police van screeches to a halt and the savage ritual stops. The officers rush the victim to hospital, but it is too late: The 23-year-old man is dead.

This is just one example of a wave of mob rule, known locally as jungle justice, that is sweeping Cameroon where people complain that the police are corrupt and inefficient.

I think the difference between King's experience and the experience of those in Cameroon, is that here we still buy into the rule of law, whereas in Cameroon they don't.

When people try to impose order without the rule of law, the order imposed is often just another form of violent chaos (look at our history of vigilante justice). That is why, in my opinion, it is essential that our judicial system be comprised of competent judges who rule according to the law, and not according to the way they would like the law to be. Once people lose faith in the judicial system, the collapse of the "rule of law" and vigilante justice is not far behind.

One of the quickest ways to ensure people lose faith in the judicial system is to have overly activist judges engaging in linguistic gymnastics to support decisions they think should be the law, instead of merely applying the law. That is why I am opposed to the theory of a "living constitution" - which when stripped of its rhetoric, means nine people in robes are free to expand or contract our constitutional rights based on their evaluation of changes in society.

Since I would rather keep my tires on my car and not around my neck, I reluctantly buy into strict interpretation or even original intent (they are different, but the subject of another post), both of which are far from perfect. However, they are the only checks that can be placed on a judiciary with life appointments and no effective method of removing them.