Fear, reason and the courts

It’s an axiom among market traders that the markets make big moves, up or down, based upon greed and fear, respectively.

Of the two, it is acknowledged that fear is much stronger.  That’s why, although there are market buying frenzies, they are less frequent and less dramatic than market crashes.  Markets crash in a “panic”.  People are afraid, and they act on their fear.  Do they ever.

Today is October 29th, so I thought this might be an appropriate beginning.

I’m a big fan of the four cardinal virtues:  Justice, Prudence, Temperance, Courage.  A civilized society will strive to attain them.  It will have attained them, to a greater or lesser degree, when to that degree they form the basis for how individual people conduct themselves.  Much easier said than done, of course.

Greed and fear, the watchwords of the market, are primitive emotions.  Uncivilized.  They are neither the product of, nor do they respond to, reason.

By contrast, it should be obvious – though it isn’t, and that is a whole different discussion – that whereas the markets may be governed by primitive impulses, courts should be citadels of reason.  The adversary system is a device to sharpen reason so as to answer important questions, such as guilt or innocence, or injurious faults of lesser kinds, as they apply to real individuals in real situations.  It is not conflict for conflict’s sake, nor is it a power struggle.  Not ideally, anyway.

Put another way, the courts should be very unlike the markets.

Are they?

We attribute “wisdom” to judges.  It’s an authority of a kind, but muted compared to others.  In the military, for example, authority is symbolically worn on one’s sleeve or shoulder or chest, often in a highly decorative, even ostentatious manner.  The judge wears a plain black robe.  No insignia.  No decorations.

One difference is that what underlies military authority is the more primitive realities of power and force, but what underlies judicial authority is reason.  The traditional choice of garb merely reinforces this belief:  the military shouts its message at you; the judge stands quietly unless and until there is something to say.

All this may seem abstract to the point of irrelevance, but it isn’t.  The justice system – the third branch of government – is reason applied, precisely without regard to power or status or other primitive considerations.  It has no other legitimate reason to exist.  None whatever.  It is fair to say that when the courts abandon reason the government, as originally constituted, has already collapsed.  The third branch has become a banal version of the second, minus the ostentation, the zing.

American courts abandoned reason a long time ago.  It is tempting to trace this to, among others, Oliver Wendell Holmes, but the truth is it was all part of a larger intellectual shift that came into its own around the middle of the 19th century.  It is by now so complete and entrenched that a discussion of it, as if it were still some kind of unsettled issue, seems naive and quaint.

We often hear it repeated that the American justice system is the “best” in the world.  It would be fairer to say that it’s the worst.  The United States had no deep intellectual traditions to resist the otherwise faddish intellectual trends of the 19th century.  It quickly succumbed.  Elsewhere the idea of the judicial system eschewing reason for an empty pragmatism could never wholly succeed:  there was at least a residual, unyielding belief that a contradiction in terms must be rejected, if not always and everywhere then at least as a general rule.  Not so in the United States.

The result is a court system that is intellectually and functionally primitive.  Like a market.  Like the executive branch.

Trying to reason with it is wasting your breath.  If it is not afraid of you, at least a little bit, you do not exist in any meaningful way.

Scott Greenfield invites his readers to a conference where one of the speakers is Judge Harold Baer.  Judge Baer has been pretty quiet since 1996, when he reversed one of his decisions under pressure from prosecutors, police and other executive officials.

That incident was cited previously in these pages, because it is representative, and an open example of a common phenomenon that is ordinarily far better hidden.

There are no examples of a judge reversing himself owing to pressure from outside defense attorneys.  None.

In a “court” system that operates on such primitive impulses, this is all that matters, practically speaking.  And Judge Baer’s experience tells you all you need to know about who, and what, stands where.

 

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