Heads up, this posting will be much longer than my previous ones. It is about the concepts of Law (legal) vs Justice, but mostly about law.
Know this, however, if you want justice, you need to hope for “special prosecutors” like Clint Eastwood, Denzel Washington, Queen Latifa, or Charles Bronson (and a smidgen of Judge Roy Bean wouldn’t hurt).
I’ve been a civilian juror before and, in the military, I’ve testified in three courts-martial cases, twice for the prosecution and once for the defense. But, before I get into any specifics, here’s an overview of how this is supposed to work.
For a case to proceed to a criminal trial in the U.S., the process starts even before an arrest is made. Constitutionally, our State and National legislators, the people we vote in to represent us, are supposed to create and enact the laws and the elements that define “crimes.” For example, Theft, as I’ve paraphrase from the Colorado Revised Statutes, occurs when someone knowingly intends to deprive another person permanently of the use or benefit of the thing of value, or uses, conceals, or abandons the thing of value in such a manner as to deprive the other person permanently.
Generally speaking then, people have to be totally aware that the action they take is wrong and will in some sense hurt another person. Regardless of who investigates, the initial step is to determine whether a crime actually occurred, and second, the accused is the one most likely to have done it. Once these are both settled, we can move to the arrest and the trial.
Now there are variables that can affect the atmosphere of a case, such as the state of mind of the accused (sober, under the influence, was the item loaned or given), and what the deprived item is and its monetary value (car, diamond, firearm, cash, food), but these are issues for a judge to use when determining punishment.
OK, the case I served on. John Doe was accused of sending drugs through the mail from Dolores, CO to a place in somewhere Mississippi. The trial lasted about four hours.
While we weighed the evidence, two of our jurors automatically voted for a conviction. We lived in a small community and most people know most people, and this John Doe was not exempt. He had a record with multiple offenses, but the judge had earlier instructed us that we were only to evaluate the facts of THIS case, and the defense was not legally required to prove innocence only that the prosecution was obligated to prove guilt beyond a “reasonable doubt.” And it was the last clause on which we finally acquitted.
The judge came into the jury room before we were released and this is what we told her: the prosecution left enough doubt that SOMEONE ELSE could have been the sender of the drugs (we did not dispute the action of sending the drugs). In legal terms, although we may have acquitted we didn’t say John Doe was innocent; we ruled according to the law, which may or may not have been according to justice.
Aristotle is quoted as saying, “Law is reason without passion.” After a major public case (think O.J. Simpson or Rodney King) that leads to an outcome people didn’t expect, the protestors clamor for JUSTICE. What this activity really suggests is the legal system came to a different conclusion than what the crowd wanted. So, the point of this observation is this: legal is different than justice!
Today, when we see the statue of Lady Justice holding her scales and wearing a blindfold, we tend to think in terms of balance and believe the law is equal to all regardless of wealth, position, or power. But according to some early researchers the blindfold didn’t appear until about the sixteenth century and originally represented her indifference to the INJUSTICES that took place in the old courts. Furthermore, the scales were not balanced, as they could be swayed in either direction of guilt or innocence depending on the amount of evidence presented.
Oh, and in some earlier statues the Lady is carrying a sword to represent the authorities in place at the time and that the ruling of the courts would be swift and final (i.e. no appeals allowed). So, in context of this article, one might call her Lady Legal instead of Lady Justice.
Now, addressing the concept of equality before the law, one really has to ask, “which law”?
For most of the rest of this observation I refer to the 2024 book “The Hidden Globe: How Wealth Hacks the World” by Atossa Araxia Abrahamian, published by Riverhead Books (Penguin, Random House USA).
Let’s start with this: “Legal fiction” is a term used extensively in Abrahamian’s book as a statement or condition that is neither truthful nor is a lie and is used with a full knowledge of the falsity of the statement.
Courts use this term to help decide and define ambiguous legal cases, and the author shows where it’s used in more common, but not necessarily more obvious, ways. Look at a foreign embassy, for instance. The physical grounds, and by extension, the persons and the automobiles assigned to those grounds are considered to be “of the origin country.” So, the U.S. Embassy in France is considered U.S. territory, as are all the people, cars, diplomatic pouches, and so on connected to that embassy.
The fiction then is that one foreign sovereign nation (the U.S.) is within and surrounded by a separate host nation (France), but the parts and pieces of the U.S. are sacred and untouchable by the laws of the host. In essence, persons assigned to an embassy really are not obliged to follow the laws of the host country, and should a violation take place, the charges, if any, will typically be referred back to the visiting nation. You’ve probably heard of the term “diplomatic immunity.” Well, this legal fiction is its foundation, but if you are not a member of the diplomatic corps, e.g. a tourist, who violates a Country’s laws you fall under the host Nation’s legal processes.
But an embassy is not the only place with “sacred ground” and where laws may be suspended or ununiformly applied. Churches used the concept of “sanctuary” or “amnesty” to protect the common folk against attacks from invading forces or even from arrest by the King’s men. Regardless of whether or not the sacredness of the church was actually respected, during WWI the concept was widely used to protect civilians and wounded soldiers and was called a “Geneva Zone,” representing the neutrality of Switzerland.
Today, this Geneva Zone concept is stretched to various commercial applications to protect products more than people. Travel through just about any major seaport, look out your ship’s window and you’d likely see a large, covered area that may be guarded or at least has fences and gates. These are known as “freeports,” i.e., free-economic zones or foreign-trade zones.
Freeports were originally places where incoming traders could store perishable grains and produce until such time as the product could be processed, packaged, and shipped to final destinations. While in these freeports, the product was NOT taxed or tariffed, mainly because the item was NOT in its final form. So here again we have an example of sacred acreage owned by (in this case) a corporation within a sovereign country.
Corporations today use these freeports as tax- and duty-free holding areas to bring in parts to be assembled and then shipped out as complete products. Since the product never hits the actual sovereign soil, there are no fees added to the corporate processes. The hosting country gains because its people are employed as assemblers and paid by the foreign company, and while there may be a rental charge associated with the property, legally these freeports are NOT beholding to any of the laws of the host country.
Now, back to the ships you see in these ports; you can note the countries under which they are registered by the flags they fly. There are 47ish countries that have registered “flags of convenience”: some of them are land-locked or almost so (Moldova, Georgia) and some are small islands (Palau, Vanuatu), but in any case, these odd countries offer legal and tax benefits as a registered shipping entity that the host/building country does not offer. Thus, a company may be headquartered in Norway, but its ships might be registered in Liberia and fall under Liberia’s more liberal shipping and labor laws and tax structures.
The point I’m trying to make is not all laws are equal and they are getting less equal as time goes on, and sometimes it’s because of the natural evolution of events as the world turns. We now have laws to cover the upper atmosphere, although the first test was centuries ago when the Anglican Church declared the King owned the properties “from Hell to the Heavens” to make it illegal for commoners to hunt birds in the skies above and deny any efforts to dig for coal or foodstuffs below the surface.
Outer Space is thus covered by this “ad coelum” law and the International Telecommunications Union; the area up there is divided into posting segments or slots for geosynchronous or geostationary satellites. Slots are sold on a first-come basis and even a country with no space program (Palau) can buy a slot and rent it out commercially, basically using the “flag of convenience” concept 22,000+ miles above Earth. According to one online resource, today there are 194 countries and around 900 businesses (Starlink and Amazon being two), academic institutions, and international and regional organizations who own these satellite slots (https://en.wikipedia.org/wiki/International_Telecommunication_Union).
Ironically, this “ad coelum” law could also apply to my apple trees. Say one of them hangs over my neighbor’s fence, which is on the property line. Does my neighbor have the right to these apples in the space “from his Earth to his Heaven”? Or do I have the right to enter his property to gather these apples? Or, what if one of these apples falls to the ground and his grandchild tries to eat it but chokes to death instead? Was it my apple or his that caused the death or is this automatically a “but for” ruling that says it’s my fault because “but for” the planting of my trees, this choking would not have happened. You see, now we’re back to proving intent or foreseeability as an element of a crime or pushing it over to just a terrible accident. A judge/jury will have to decide this.
Historically and still in effect are laws concerning the sailing and usage of the oceans, specifically the boundaries measured out from a Nation’s coast to its international boundary (12 miles) and further to its commercial rights limit of 300 miles. Other laws in place: controlling the Internet and the data transferred on it, defining royal vs common law, addressing religious governance beside secular law, and dealing with bureaucratic and administrative regulations. There are even newly established secular courts in the United Arab Emirates to specifically deal with the non-Arabic nationalities working in these countries. And, oh by the way, these courts are for sale where “judge shopping” may be a consideration by lawyers on either side, regardless of the geographical location of the offense.
(Side bar rhetorical question: How can any Government attack the idea of “sanctuary cities” and still support the “freeports” housed on its own shores? One might argue these are issues of immigration vs economics, but that would be cherry picking and ignoring the historical roots for establishing the status of both city and port. This could end up being a case of the Law of Unintended Consequences, depending on the specific Court.)
You still with me, dear reader? I’m getting close to wrapping up.
When I worked at the Ute Mountain Casino some thirty years ago, I managed the workers comp program. One of the workers injured her back lifting a box. We followed all processes to the letter: preventative training on correct lifting procedures, medical treatment and re-hab after the injury, paid time off. We thought all was well, until I got summoned to district court in Durango, CO.
She sued us for emotional injury and other pile-on charges. Her lawyer presented his case, and as I was ready to give mine the judge started to read his decision. “Your honor, I haven’t presented our side yet.” “Mr. Lente,” the judge said, “I am not the least bit interested in what you have to say. I will rule against your casino every time.” I sat down, and I never again drove the hour-long trip to Durango for any case presented to that judge.
Not much has changed; the news today is full of examples of judges, even those at the topmost level, who rule according to their hearts and not necessarily in line with the established rule of law, evidence, or precedence.
My next reference is to author Erik Larson who writes in his book, “In The Garden Of Beasts,” a biography about William Dodd, U.S. Ambassador to Germany in 1933 during the rise of Hitler. Dodd gave a speech to the Berlin Chapter of the American Chamber of Commerce entitled “Economic Nationalism,” and in it he referred to the falling of the Roman Empire and the Caesars, and the ousting of Louis XVI during the French Revolution: “Governments from the top fail as often as those from the bottom…Why may not statesmen study the past and avoid such consequences…No system which implies control of society by privilege seekers has ever ended in any other way but collapse.”
When recently questioned about the issue of judge-shopping and some of the broad sweeping rulings that affect multiple jurisdictions, trial attorney Paul R. Kiesel and Judge Esther Salas stated, “This is not just about judges and lawyers. It’s about whether we as a nation still believe in justice — not as a buzzword, but as a process that must be defended and made accessible to all.”
New sets of boundaries are being constructed every day, but as another saying goes “if the rules benefit a particular class of people, that class need not even break the rules.” If you look deep enough into the motivation of most laws, they are developed to either protect or restrict the actions of a particular class of people, and sometimes these laws do both at once, i.e., protecting my right may restrict yours.
The Golden Rule used to say, “do unto others as you would have them do unto you,” but now I suggest it should be rewritten to say, “Who owns the gold, Rules.” And those of us without the gold just need to keep praying that Denzel Washington and the Equalizer live just a little bit longer.
Best regards to all, and let’s be safe out there.
