I was watching a video recently from a lawtube channel named Runkle In The Bailey that features a Canadian criminal defense attorney with a specialty in firearms law. What he said that was striking about the Canadian legal system and some of its problems was the habit that Canadians have of legislating in the wake of a trial in order to try to close the loopholes that led to unpopular decisions. Like the esteemed attorney, I do not believe that changing the legal environment is the way that we deal with court decisions that we do not like.
The first step, of course, that we should undertake is one of self-examination. Why is it that we do not like a better outcome? Do we have some sort of animus against the winning side in a given case that prevents us from seeing the existing facts and law in the right way? Was the wrong verdict, or what we viewed as the wrong verdict, the result of terrible lawyering on the part of one side or the other? Until we have examined ourselves and the people whose job it is in an adversarial legal system (as the United states has) to seek the truth in a courtroom, we cannot justly seek to look at various systemic causes. And even when we do, we must be very careful when it comes to remedies because it is easy to make laws and hard to obtain justice through those laws, because every law that gets added adds more opportunity for the law to be twisted and biased in favor of one interest or another that leads to predictably poor decisions.
Why is it that laws make bad memorials? When we try to make a law named after a dead person, our job is to keep a given situation from happening again, but when we seek to present something that we do not want from happening again we typically make a lot of bad things happen in the future for other people. Do not unpopular people have a right to defend themselves in word and deed? If one believes the mass opinion, the general assumption appears to be that those who have unpopular identities or causes or belief systems simply have to take their lumps and have no right to seek to overturn the abuse they suffer by any means, because to do so threatens that which people desire from society, and that is laws and authorities and outcomes that reflect their own biases and interests.
The ideal, however, is not subjective rule by people that secures supposedly desirable outcomes through corruption and injustice, but rather an objective rule by law that can be understood and applied justly and consistently that everyone can be aware of and live under. When we have objective law that we enforce as fairly as possible based on the specific facts of a given situation, we live life under a greater degree of safety because it is predictable which actions lead to which outcomes for everyone. When we have subjective attempts to legislate outcomes, life is unpredictable because one cannot be sure that one’s actions will lead to a given outcome, whether good or bad. We may do what is good and end up with a situation that is evil because someone in authority does not like us and maliciously misjudges us and abuses their authority accordingly, or we may do evil and end up lionized and made to be a supposed hero or martyr when such a fate is not deserved.
If laws make bad memorials, what is it that makes for a good memorial? One might say statues, but the problem with statues is that different grounds by which we think of people as heroes changes so dramatically that those we may lionize with statues and holidays today may be people whose memory we curse tomorrow because of the injustice and wickedness of their lives, and such statues may be destroyed or forced into hiding as a result of their sudden unpopularity. So long as the facts of the existence of people remain known, we have no way of ensuring that those people will always be viewed the same way that we do. Some future revision or reappraisal is always possible. No victory or defeat is ever eternal so long as we are dealing with life under the sun. And yet whenever we win, we want to make that victory permanent. The reason why justice is so elusive for people is that we find it so hard to be just.