If there are things impressed upon modern Western Liberal Democracy, there are 2 arguably essential things claimed: Free speech and Rule of Law. Indeed, “free media” in the West touts these 2 things often enough, and the Courts of the West equally pay tribute to these 2 things often enough.
Yet, underneath, the reality is a strange contradiction of these 2 things butting against each other in interests, and often require delicate balancing depending on where.
There are in fact, 2 different kinds of “courts” in the West: The Court of media/public opinion, and the Court of Law. The 2 do not mix well. The 2 keep each other out. The 2 often bad mouth each other, and yet also tries to influence each other.
I did not think of this until recently, but here is a scenario/question: If Court of Law in the West are so fair, then why don’t they just open up the courts for public campaigning?
Hey, why don’t they just let the Plaintiffs and the Defendants all put up ads in the papers and on TV, and also let “voters” be the juries to determine innocence and guilt?
If “Democratic voting” is fair, then why not do the same for criminal trials? Why should only 9-12 jurors get to decide?
Conversely, if criminal trials are so fair, then why not ban election campaigns, and let 9-12 voters decide the next President based purely upon allowed factual evidence of performances of each candidate, in accordance with a strict trial procedure?
(The answer is of course, more to do with how much the People/Mob cares about a particular thing. If the Mob cares a lot about something, then customarily, the Mob wants its voices heard in public, with massive campaigns and money and votes. But the Mob does not care about the publicity of heinous crimes and scandals, (not often), and thus, it prefers only a few people bearing the burden of such problems).
Nevertheless, what the Mob wants can change. Which is why increasingly, many US states are demanding MORE judges to be elected, so that the Court of Law would be more influenced by the Court of Public Opinions.
But we can obviously see that if a Court of Law is turned to campaigning, the Rule of Law and Truth finding would be enslaved to mob opinions, emotive appeals, and endless useless debates.
And yet, that’s precisely what Court of Law was like, back in the Roman Era (from which the West derived its legal traditions). The Romans held their criminal trials in public, in the Roman Forum, where previous nights might have had bloody gladiator combats. But even the Romans held the Judges had to be chosen from a list of elites, even if the Judges are subjected to the loud heckles from the forum of the Jury (with 100’s or 1000’s of jurors). It was informal, loud, and yet very efficient.
The trials are public spectacles. It was done more to shame the individuals rather than to seek truth and justice. So, you often end up with both sides calling each other the most scandalous names rather than actually talking about the facts.
It was more like modern day political campaigning. (In Roman days, litigations are like campaigning).
Today, the Western Courts limit the amount of jurors, limit the publicity of trials, strictly enforce court rules of evidence and decorum, and severely punish lawyers for publicity seeking. Why? Because the publicity and the media can taint and bias “fact finding”.
The Courts in the West recognized that very real possibility, after centuries of trials. Afterall, the witches of Salem were convicted based upon nothing more than rumors and paranoia, despite the previous centuries of British legal traditions.
*But inherent in this admission is the recognition of the power imbalance of the Mob and the Media over Truth and Law. Thus, “free speech” must be curbed, in order to find the Truth.
Justice may be imperfect, but the Loud Mob is not a cure. The Loud mob only makes one forget Justice completely, and reach for the baser instincts of vengeance and fear.
Yet, isn’t Truth also important in Politics and Government? Why should the Loud Mob be given comfort outside of the Courts in the positions of power and taxes? Because after centuries, the Courts of wise judges gave into the fear that if they do not allow the Mob to have some influence, the Mob may indeed resort to “Kill the Lawyers first”, and leave no room for Truth at all in the West.
But, as for China, I think it best that we stick to the Truth, that we need no loud mobs for either truth or good government. That all citizens have the responsibility to follow the law and speak responsibly.
And if the West say China needs “Free Speech and Rule of Law”, we should say, “China has Rule of Law. And that’s enough.”
Allen says
Interesting insights. Very good points.
I’d also venture that both “rule of law” and “freedom of speech” (without saying more) are just spectacles.
Laws have so many levers (as they should have), including which evidence to include / exclude, subjective believability (i.e. perceived credibility of evidence, people, etc.), which doctrines to apply / balance, etc., that one could get any result one wants. The key is not the “law” but how the “law” is applied …
Freedom too have so many conditions. Do we have a freedom to label drugs however we want? Food however we want? No … because that would be “fraud.” Can we libel? Or incite? Or extort? … We recognize hate crimes, national security, and even that unfettered campaign contributions can be bad…. The lists go on and on… Freedom makes sense so long as it does … and not so when it doesn’t.
For both concepts, rule of law and freedom of xxx, it’s the unspoken underlying “values” and “norms” that is important – that is determinative. Law per se and freedom per se means nothing. It’s just a spectacle …
Allen says
I also want to push back on this:
The reason is I don’t think the reason for not holding more public trials is not that the people/mob don’t care about crimes. Think crimes people do care about, OJ Simpson, Ferguson, Rodney King, etc. We still don’t subscribe to mob trials. The reason they are not is because it would become too politicized an affair and lead to political unrest. So we couch these “crimes” under the rubric of “rule of law.” When the people don’t like the result, the leaders can say you were involved but without getting people to say, oh yeh, let’s all get involved now (because only a few – say 12 – people can get involved).
What’s the alternative to judge by jurors? Judge by mob? No… I think most people see that’s not a good idea. How about judge by Mandarins? No … because people worry that mandarins can become corrupt…
In the end… as long as people “trust” the system. Justice – or rather, the spectacle of “justice” – is served. In the end, maybe that’s all that matters.
Allen says
I want to clarify my two comments above: I like this post to the extent that it shows that truth can’t be determine by the people / the mob.
We seem to have this notion that people’s beliefs make right … when we all now that however many people believe – however fervently – that the earth is round, or that God exists – that doesn’t per se make it so.
The masses would never have invented calculus, advanced astronomy, discovered laws of motion or theory of evolution. The masses can never diagnose or find the cure for cancer…
But I disagree with this post in the sense that it seems to say that “rule of law” can somehow determine the “truth.”
Rule of law – in the notion of administrative law – is but a form to enforce standard – the “emperor’s edict,” if you will. To the extent that it involves better training of bureaucrats, etc. – to enforce a centralized set of standards and norms – I guess it is about enforcing or seeking “truth.” (In the past, for example, when conflicts arise and the government gets involved, the bureaucrats of the Chinese gov’t would actively seek the truth to the cases and to enforce the law.)
Rule of law in the more unique Western sense that it bodies some truths or grand principles that’s handed down to us – that constrains our basic instincts and our governments – that goes beyond cultures – that everyone must reach for – well that’s a spectacle of the West. It had beginnings in religion in the commandments, but then got spread to politics when religion got pushed back. That notion of rule of law as an independent entity that rules over men is what I was attacking in the first comment… It doesn’t exist. It’s but a cloak to mask the power of men.
Going back to what “truth” is – i.e. what’s “right” for society. There is probably no one answer what it is. Democracy has a sense of going to the people go get it … but people forget that the people as individuals per se is blind, selfish, ignorant, etc. It’s not magnanimous, far-sighted, noble per se. More meritocratic systems look to trained and cultured leaders, but in truth, as when systems decay, leaders can become corrupt and also become blind, selfish, ignorant, etc.
There is no one absolute answer on what “truth” is … there are just many triangulations of it … and in that sense, should be all embraced … The reason for the push back by me and others here toward Western sense of democracy is that as currently practiced, it is about ridiculing others, as well as being blind to all the trappings within itself…
Allen says
Here is one definition of “bullshit” (got the quote from wiki entry on “bullshit”):
Righteous meritocratic leaders seek the truth. Corrupt ones lies. Democratic leaders are bullshitters though … because it’s the nature of democracy / freedom. Truth is judged by the mass’s feelings … not but any standard for the good of society.
Allen says
Following up on the previous comment, from one of our quotes from our “quoting you section”: