The rule of law as myth and reality

LGM commenter JEC posted a comment a few days ago that unfortunately I can’t find at the moment, in which he said something to the effect that Americans have no real conception of what it would be like to live in a truly lawless state, because, culturally speaking, we’ve inherited such a strong tradition of at least some sort of commitment to procedural justice from the Old Country. (Obviously there are some massive historical exceptions to this generalization, particularly if you were black in the Jim Crow South, but even there respectable public opinion considered lynchings bad as a matter of procedural form, even when it looked the other way on a regular basis).

Here’s a passage from a Douglas Hay essay on what, as a matter of ideological justification, the word “justice” meant in 18th century England:

Equality before the law’ also implied that no man was exempt from it. It was part of the lore of politics
that in England social class did not preserve a man even from the extreme sanction of death. This was not of
course, true. But the impression made by the execution of a man of property or position was very deep. As
executions for forgery became increasingly common throughout the century, more such reputable villains
went to the gallows. The crime was punished with unremitting severity even though it was often committed
by impecunious lawyers of good family. This rigour was distressing to many middling men: the agitation
led by [Samuel] Johnson against the execution of the Reverend Dr. Dodd, a former Royal Chaplain and Lord
Chesterfield’s old tutor, was enormous. Dodd died at Tyburn in 1777 but he lived in popular culture for a
long time, his case was persuasive evidence that the law treated rich and poor alike. The occasional
sentence of transportation or death passed on gentlemen with unusual sexual tastes or guilty of homicide,
cases widely reported in the Newgate Calendar and other versions, similarly served to justify the law.

Undoubtedly the most useful victim in this respect was Lawrence Shirley, Lord Ferrers, who killed his
steward, was captured by his tenantry, tried in the House of Lords, sentenced to death, executed at Tyburn,
and dissected ‘like a common criminal’ as the publicists never tired of repeating. He was hanged in his
silver brocade wedding suit, on a scaffold equipped with black silk cushions for the mourners. But hanging
is hanging, the defenders of the law repeated enthusiastically. An enormous literature surrounded his
execution in 1760, much of it devoted to celebrating the law. Later in the century the event was often
recalled as an irrefutable proof of the justice of English society. An anti-Jacobin in the 1790’s advised his
‘brother artificers’:

“We have long enjoyed the Liberty and Equality which the French have been struggling for, in
England, ALL MEN ARE EQUAL; all who commit the same offences are liable to the same
punishment. If the very poorest and meanest man commits murder, he is hanged with hempen
halter, and his body dissected. If the Richest Nobleman commits murder, he is hanged with a
hempen halter, and his body dissected—all are equal here.”

The point here is that while it’s obviously true that at no point in American history has it been close to true that the rich and the poor were equal before the law, our historical traditions have to this point required at most points at least some real effort to keep up appearances, in the sense that open bribery of the judicial system and the like wasn’t an option for the good and the great.

Contrast this with the historical situation in a country like Mexico. Here’s a description of the death and the legal aftermath to it of the great English musician Kirsty MacColl:

In 2000, after she participated in the presentation of a radio programme for the BBC in Cuba, MacColl took a holiday in Cozumel, Mexico, with her sons and her boyfriend, musician James Knight. On 18 December 2000, she and her sons went diving at the Chankanaab reef, part of the National Marine Park of Cozumel, in a designated diving area that watercraft were restricted from entering. With the group was a local veteran divemaster, Iván Díaz. As the group was surfacing from a dive, a powerboat moving at high speed entered the restricted area. MacColl saw the boat coming before her sons did. Louis, age 13 at the time, was not in its path, but Jamie, age 15, was. She was able to push him out of the way (he sustained minor head and rib injuries), but she was struck by the powerboat, which ran over her. MacColl suffered severe chest and head injuries and died instantly.^[ MacColl’s body was repatriated to the United Kingdom and was cremated after a funeral service at Mortlake Crematorium in Kew.

The powerboat involved in the collision was controlled by Guillermo González Nova, multimillionaire president of the Comercial Mexicana supermarket chain, who was on board with members of his family. The boat was owned by Carlos González Nova, brother of Guillermo and founder of Comercial Mexicana. An employee of Guillermo González Nova, boathand José Cen Yam, said he was in control of the boat at the time of the incident.^[Eyewitnesses said that Cen Yam was not at the controls and that the boat was travelling much faster than the speed of one knot that González Nova said.

Cen Yam was found guilty of culpable homicide and sentenced to two years and ten months in prison. He was allowed under Mexican law to pay a punitive fine of 1,034 pesos (about €63, £61 or US$90) in lieu of the prison sentence. He was also ordered to pay approximately US$2,150 in restitution to MacColl’s family, an amount based on his wages. People who said they spoke to Cen Yam after the killing said he received money for taking the blame.

I’m not saying the US equivalent of Gonzalez Nova wouldn’t have gotten off the hook in similar circumstances: obviously he very well might have. But it would have been much more difficult, much more uncertain, and much more likely to cause a massive public outcry.

One of the things that Donald Trump represents is a classic authoritarian threat to even the possibility that the law will hold the rich and powerful accountable, despite their wealth and power. Trump’s whole life is the most cynical and disgusting refutation of this possibility, and the unexplained willingness of the top NY appellate court to at least temporarily let him off the hook for not having enough money to stay the civil judgment against him (the reason he can’t borrow the money to stay the judgment is that the judgment itself was a consequence of his massively fraudulent financial dealings) is just one of an almost endless number of demonstrations of this.

It’s almost impossible to exaggerate what’s on the line in November.