I am more focused on fundamental principles, systemic structure and dynamics, and, in general, overarching abstractions, than I am on the particular vessels and driftwood floating on their currents. This post is not about the hot events of the day, the battling candidates, the particular policy proposals in the pipeline, but rather about an overarching principle, one which we forget in the heat of our passions and the hunger of our will.
Process is, in a sense, everything. Three recent narratives drive this home with renewed vigor: My sojourn as a law student; the rancorous primary our party is undergoing in Colorado’s U.S. Senate race; and my own experiences in situations in which process was woefully deficient.
One of my law professors once said that the faction that gets to write the procedural provisions of a bill can kill it or make it work at will. In constitutional and criminal law, due process is everything. A well-designed and well-functioning legal system is less about the results than about how they are achieved, because otherwise it is not “rule of law”, but rather “the ends justify the means”. Many people find it intolerable that a person who we all think we know is guilty can go free; I would find it intolerable if we subordinated our legal processes instead to what we all think we know. The commitment to process is where the protection of civil rights resides.
One of the legal phrases that captures the failure to adhere to this commitment to process is “arbitrary and capricious”. What a lovely phrase! Nobody likes to be treated arbitrarily and capriciously. Everybody recognizes the injustice of that, though it still survives in many areas of our collective existence. Most of our procedural protections protect us against the government, not from one another. In most situations, those with power over others have vast legal lattitude to act arbitrarily and capriciously at the institutionally, socially, or personally weaker party’s expense.
And this fact should not be swept under the rug with “it’s their right!” Sure, people with such power, be they employers, spouses, or owners of a vital resource, have broad rights to dispose of as they please the desired thing they hold (or withhold) access to (e.g., employment, affection or support, the material or institutional resource), but that does not make it right to do so arbitrarily and capriciously. This, in fact, is one of the ways in which private ownership can run up against the public interest, to be considered in conjunction with the ways in which it served the public interest: The private ownership may have driven the extraction, production, or availability of the desired resource, but it may also turn it into a lever to be used by some over others, with which much mischief can be done. On all levels and in all spheres of life, rules that are not implemented, interpreted, and reviewed by some transparent process designed to ensure their fair and effective execution, are a mere sham, more pernicious than simply the admission of a commitment to arbitrary and capricious decision-making, because it combines that defect with the insidious pretense of not being infected by it.
There remain many spheres of life in which judgments can be executed with inadequte process, with impunity. That the right to do so exists does not make it right to do so. It does not make it something that serves the public interest. It does not make it admirable.
And being admirable counts. Serving the public interest counts. Doing what’s right counts. We are not just a nation of laws, but also a society of values, affected both by our own conscience and by the reactions of those around us. Such social approval and disapproval can often fill in the interstices, where law has not gone or cannot go. It can be informal (looking askance at someone who has done something highly objectionable) or it can be organized (boycotting a private enterprise that has done something highly objectionable). And it is a very powerful force, sometimes liberating, and sometimes oppressive.
How we make our marginal contribution to this powerful social force is one of our responsibilities to one another that we should take seriously. It doesn’t matter so much what the substance of our individual judgments are, as the process by which we discuss and debate them, the process by which we decide when to be tolerant and when to be intolerant. There is room for both: No one is suggesting that heinous and hateful acts and attitudes should be tolerated. But none of us are privy to the indisputable and absolute truth, neither concerning what political economic and moral doctrines best serve human welfare, nor the disputed details and interpretations in particular instances. We are all fallable, all muddling along in a complex and subtle world. Let’s do our best to muddle along as reasonable people of goodwill, working together to improve the quality of life for all of us.
