Theme: Law is a human invention. It is never perfect. Thus while adherence to law is often vital, it is not necessary nor sufficient for the purpose of justice. There ought to be higher principles.
It is said that law is written morality and morality is unwritten law. Morality determines what is good and what is not. Being moral is being good. However, from the following three categories and representative cases, it can be seen that the application of law does not guarantee just outcome.
Justice is a very elusive concept whose definition varies across time and between authors. At the expense of oversimplification, this synopsis adopts the plain and ordinary meaning – namely that the innocents and criminals receive their deserved legal treatment. I would determine the justice of a case by modern standard, with the benefit of hindsight. Legal correctness, on the other hand, is defined as adherence with the procedural law as of the relevant time, not as of the modern times.
There are cases being legally wrong and morally unjust.
This is the gravest type of miscarriages of justice. The trial of Dreyfus is a notorious example, being “one of the first tests of modern pluralist liberalism and its institutions” (The New Yorker, Trial of the Century).
After Enlightenment, Revolution and Napoleonic legal reform, the law should have attained an almost modern standard. L’affaire Dreyfus took place at the dawn of modernity in France and represented a grave deviation even from the law at that time.
From the very start, there is a plain breach of presumption of innocence (Woolmington v DPP, golden thread). Dreyfus was chosen as the scapegoat because of his republican meritocracy background and Jewish and Alsatian origin. Without tangible conclusive evidence, he was arrested and interrogated day and night in solitary confinement. The French army further leveraged the pre-eminent anti-Semitism in society and the media (Le Figaro, La Libre Parole) to maneuver public opinion against Dreyfus.
The evidence was framed up against Dreyfus. While the handwriting experts had reservations, the military arranged more experts in search of a desirable finding. The pseudo-expert Alphonse Bertillon went so far as to invent the “auto-forgery” theory.
Dreyfus was first denied of the right to public hearing on national security reason. In the closed trial, the prosecution handed in a secret dossier with “Scoundrel D” implicating Dreyfus, who had no right to defend himself regarding this piece of detrimental evidence.
The military staff, represented by General Mercier, had vested interest in condemning Dreyfus as a traitor. Their election of closed trial verifies such intent. It means Dreyfus could not have the right to fair trial.
The wrongdoers kept doing more wrongs to cover up their initial wrongs. The military staff suppressed the new evidence and even acquitted the real culprit, Esterhazy. In Zola’s trial the court deliberately isolated Dreyfus and Esterhazy cases to avoid any judicial rehabilitation. In 1899 retrial the military rejected the last chance to redeem itself and convicted Dreyfus again. Maintaining the superficial glory of the French army, in a time of internatioal hostility, was of utmost importance. Justice and truth is secondary.
The role ofmedia is worth attention too. Although in the beginning, the French mass media was hostile to Dreyfus, on the balance, it eventually saved him. Without mass media, “J’accuse” (1898) would not have circulated to stimulate the emergence of Dreyfusards (and anti-Dreyfusards) and the European public arouse. As a side note, the case testifies the importance of (freedom of) press in safeguarding individuals’ rights and justice.
The reasons behind this outrageous miscarriage of justice are multifold, but the case primarily shows that nationalistic sentiments are often irrational and prevent good judgment. The prevailing political atmosphere, namely anti-Semitic and anti-German hysteria, accounts for the tragedy. In fact, given the overwhelmingly high conviction rate in France, it is likely Dreyfus’s case represents only a fraction of the problem.
It is clear that but for the long chain of procedural violations, Dreyfus, though still in a socially discriminated group, would not have been convicted for treason and sentenced to life. The lesson to take is never to let emotion override reason. Therefore, adherence to law can be vital for achieving justice.
It is argued the trials of Scottsboro Boys also fall within this category. Modern instances include Guantanamo Bay suspects who are detained and maltreated without trial.
There are cases being legally correct but morally unjust.
In comparison, this category of cases at least demonstrate substantive adherence to the pre-existing law. I say “substantive adherence” because in most of the trials there are still procedural violations, but they are immaterial to the final outcome of the case. Rather the content of the law is the key factor. Formal correctness does not mean these trials are less hazardous. The fact that they are procedurally correct means the injustice is more obscure and takes much longer time to be noticed and redressed. The “bizarre case” (Tennessee Supreme Court) of Scopes Monkey is one example. It is a great trial as it demonstrates various social fault lines in the United States and possibly the modern world – tradition vs modernity; religion vs science; urban vs rural.
Scopes, a biology teacher, is charged under the Butler Act of Tennessee, for teaching his students evolution theories.
There are several procedural irregularities. Judge Raulston was biased, as he ruled Scope’s expert evidence inadmissible and excluded Bryan’s damaging testimony. He also asked the jury not to judge the merits of the law, but only whether Scopes violated the law as it was. The twelve-member jury was also potentially biased, as it was composed of ten mostly middle-aged farmers and eleven regular churchgoers who were likely more conservative and pro-religion.
However, it is argued the above procedural issues are immaterial in the outcome of the case. In any event, since Scope was prepared to challenge the law, he would have supplied the incriminating evidence. Then, given the stated law, even an impartial judge and jury would likely have to conclude with a conviction. In fact, Darrow, acting for Scopes, invited the jury to return a verdict of conviction so that he might appeal to Tennessee Supreme Court. The refusal of the court to declare the law void is arguably a wrong judgment but not a procedural error. To sum up, the law was to a large extent applied correctly.
Scopes did not achieve his goal to challenge the constitutionality of the Butler Act, as the Supreme Court skillfully rejected all appeal grounds on legislative intent, judicial deference and public-private distinction, but then overturned the decision on a mere technicality and once-and-for-all dismissed it.
Fortunately this case does not involve grave consequences for any party. Scopes could at most have lost US$100. But the relatively hilarious story does not fail to show one thing – adherence to the law does not guarantee just outcome. The reason is that the law can be unjust, and it is often the case. Here, the Butler Act represents the final effort by the revivalists to defend “traditional values” against the progress of science. It clearly violates freedom of speech (Federal Constitution 1st Amendment) and promotion of science. (Tennessee Constitution). The state intervention in the form of criminal statute necessarily jeopardises the minority’s right in having their doctrine heard by public. To sum up, the content of the law is unjust and any correct application of it would not lead to justice.
It is argued the trials of Socrates, Jesus, Thomas More, Salem witchcraft and Roger Casement also fall within this category. In these trials legal procedures are partially breached but most importantly, the law itself sits uncomfortably with modern principles (e.g. freedom of expression and religion) and rules (e.g. rules of evidence) and becomes an oppression tool for those in authority. This category has the most numerous cases and significant modern implication, such as civil disobedience.
There are cases being legally wrong but morally just.
A relatively rare instance is where the legality is problematic but the final outcome is, at least in the eyes of the public, morally just. The Eichmann trial is one example. Historically it must be a great trial since it constitutes the final episode of the bloodiest war of humanity. Legally it is also great as it invokes many thoughts about international law and war justice.
On the legal point of view, this trial is very problematic.
Eichmann faced fifteen charges under the new 1950 Nazi and Nazi Collaborators (Punishment) Law, which has retroactive application. This is inconsistent even with the thin sense of rule of law. The Israeli claim that it represents the whole Jewry in the past and at present (Hausner, Israeli leading prosecutor) to justify its jurisdiction is highly artificial. It is hard to see why a newborn state could have enacted new laws to punish foreigners who committed wrongs outside their territory. The jus cogens principle sounds more persuasive, but Hannah Arendt is correct in proposing the arena of an international court, although its composition and impartiality is still open to question.
The means of arrest (kidnapping) violates state sovereignty and is obviously unlawful.
The problem of judge in his own cause is apparent. Many of the judges are German or Polish born Jews whose relatives and friends likely suffered Nazi persecution. Their capability to exercise impartial reasoning is at least an issue, avoiding apparent justice (seen to be done).
During the trial, the horrors of the Holocaust, which may be irrelevant and prejudicial to Eichmann’s case, were shown to affect the court. Other Nazi members were barred to be defence witnesses, precluding otherwise relevant and favourable evidence.
Although at any time of human history the court is a branch of political power backed by the triumphant army and police, in this trial the issue of “victors’ justice” is particularly acute. As Hannah observes, from the very start, this trial is destined to be a political show trial. The prosecution famously addressed, “it is not an individual that is in the dock at this historic trial, and not the Nazi regime alone, but anti-Semitism throughout history.” In my opinion, the trial and execution of Eichmann merely serves populist and retributive function, at the expense of breach of international law. There ought to be better ways, for example, the international community could have exerted pressure on the Argentinian government. Impractical and time-consuming it may sound, the integrity of international law should not be easily sacrificed. In Thomas Merten’s words, political crimes ought to be dealt with politically.
Nonetheless, people still perceive the trial as just because under the pre-existing international law, this might be the best way to bring Eichmann to justice. Argentina had a notorious record of not extraditing Nazi criminals (Hannah). Israel, a newborn state in urgent need of legitimacy and patriotism, found no alternative than to kidnap and swiftly prosecute Eichmann. To let Eichmann free is against human conscience and one aspect of criminal justice since Hammurabi – retribution. The more accepted view is that Eichmann’s guilt against the Jews is established beyond doubt and that he got his deserved punishment. Thus to apply the ordinary meaning of justice, this trial is more likely just than not, and is an example showing that adherence to law is not necessary for achieving justice.
It is argued the Nuremberg trials also fall within this category. Similarly the Nuremberg principles are the victors’ law with retrospective effect, though, in my opinion, they are less controversial.
Logically, there is a fourth category of cases which are both legally correct and morally just. The trial of the corrupted Roman governor Verres is probably an example. We only have one-sided information about this trial and even so some of Cicero’s litigation tactics may look questionable in modern days (e.g. speeding up prosecution process). Nevertheless, overall it is a satisfactory trial and requires little discourse for the purpose of this synopsis.
This synopsis can therefore be summarised in a simple logic logarithm – “IF the law is just AND it is applied correctly, THEN the outcome is just.” Therefore,
IF the outcome is NOT just, then
the law is NOT just AND/OR (Category 2)
it is NOT applied correctly (Category 1)
IF the outcome is just, then
it MAY OR MAY NOT be that the law is just and it is applied correctly (Category 3)
Adherence to the law is often essential because doing so can at least avoid Category 1 injustices. It is however not sufficient to guarantee justice because the law itself can be unjust, as shown in Category 2 cases. It is also not necessary for achieving justice, seen from the imperfect example of Eichmann trial. To conclude, law is a human invention but not panacea to all human problems. There ought to be “the law of the laws”, comprising of higher values such as fairness, liberty and other notions of justice.
完成斯堪地那維亞苦行，腿痠足痛，回宿休息。信箱寄到遲來三月的紫色居民身份證，學生簽證有效期內不必辦出入境許可，雖然之前為挪威之旅辦的許可也是聊備一格，最終也沒人查驗，今年歐洲難民危機波及北歐，未知各國之間是否重設關卡。另外，北歐銀行也寄來新提款咭，只是在丹京的日子不多了，此咭將在東歐巴爾幹波羅的海等地派上用場。既係「遊學」，「遊」後仍須「學」，且本學期是本科生涯末學期，須在丹京賺夠學分轉回香港才能畢業，為合格故，不容有失。接着幾日，準備「西史大審判」科的口試提綱，須就兩至三場課堂上曾討論的大審判撰寫要領供考官備閱，屆時口試考官將就所選兩場大審判詳細問詢，亦可能觸及其餘審判中爭議相關者。我選的三場審判關於法國猶太兵員戴浮士（Alfred Dreyfus）、德國軍官艾哈曼（Otto Adolf Eichmann）和美國生物科教師史高壯（John Scopes）。
五月十三日（三）博物館日
（維基圖）《夏夜斯加恩灘頭－藝術家與妻》（Sommeraften ved Skagens strand. Kunstneren og hans hustru）
凌晨兩點半登車，晨六點抵挪京車站，三小時車程中酣睡，醒來精神尚好，到便利店視察行情，一件袋裝雪芳蛋糕售三十九克朗，即港幣三十幾，各類麵包售價亦倍於德國柏林而逾丹京，暗忖阮囊羞澀，不住汗顏。友人前誡挪威極富，樽裝水亦售三十元之譜，今始驗之。自訂挪威精華遊（Norway in a Nutshell）行程早已妥當，火車八點半由挪京火車站開出，便乘一小時多空隙到港邊歌劇院（Operahuset），初則天色陰沉，不察歌劇院之美，才過十五分鐘，豁然開朗，則光影冷峻，堪比澳洲雪梨者。略遊市中心卡爾約翰大街（Karl Johans Gate）（按：「街」，丹麥語「gade」、瑞典語「gatan」、挪威語「gate」，三者並列，可知同源，恰又與廣東話「街（gai1）」略似）及大教堂，遂返回火車站，與香港親友通訊，知 母親大人學習西廚頗有進步，而我孤懸海外，料理簡餐似亦能勉強入口。
約下午三時抵拂朗霧（Flåm）。朋友說挪威精華遊可一日匆匆為之，亦可兩日舒泰為之，倘若兩日為之，最宜宿拂朗霧鎮，於是今日行程也大致完成。首先參觀車站旁的拂朗霧線鐵路博物館，免費入場，簡介鐵路開鑿和電氣化等沿革。事前沒有預訂住宿，因網上遊記說即場付費露營十分方便，略略搜尋似乎「Flåm Camping」營地收費一百一十五克朗，至是實惠，便拖着行李袋一心投宿。不意老闆劈頭便問：「有自備營帳乎？」答：「無。」曰：「然則不得露營，只能宿館，一晚盛惠二百四十克朗。」事後回想，二百四十克朗在挪威倒不算天價，本應答允，卻給一口氣累事，怨責網上報價欺我，一百一十五克朗原來是自備營帳的價，而二百四十克朗即登時貴了倍餘，遂便推辭。提着行李攀登過小山崗，崗上遍豎圍籬，為鄉民耕牧私人土地，籬笆上時有請願牌，說「No Cruise Ship, No Granda Navi（不要遊輪，不要巨艦）」，即反對遊輪旅遊業之語。返回鎮上不過下午五時，心想長夜漫漫，總不能露宿街頭？況且該營地似係此鎮至廉宜之旅舍，雖深深不忿，還是去吃回頭草，曰：「二百四十克朗，成了。」應曰：「二百四十克朗床位剛剛售罄，三百克朗床位適否？」不過半小時功夫，房價漲了整整四分一。回想今度歐遊五月餘，至貴一晚住宿是在盧森堡國際青年旅館，宿費廿五歐羅。三百克朗豈不要破紀錄！把心一橫，挪威民富國寧，難道憂他深夜行劫！況且傍晚天氣清涼，似乎受得住，決定孤身一人瞓街！鎮上有一超市Coop Marked，百物騰貴不在話下，僅牛奶（較丹京貴一倍）與粟米片（五十克朗）買得下手，便買來當今夜晚餐與翌日早餐。天色漸沉，沿馬路上溯，覓得避雨亭一所，折返鎮上旅客中心略略洗臉刷牙及充電電器，夜八時半「入宿」避雨亭。避雨亭，非香港郊野公園觀景亭那種宏亮光潔者，更非中國頤和園八角重簷攢尖頂者，更似路邊垃圾收集站低矮狹小者。
挪威百物俱貴，獨博物館慷慨，逢星期四免費開放。我雖遇不着星期四，但是學生價三十克朗[1]，便可參觀挪威國立藝術建築設計博物館（Nasjonalmuseet for kunst, arkitektur og design）轄下四間博物館，俱列如次。朝十點半，在國家畫廊購聯票，兼免費寄存行李，見畫廊人氣頗盛，先往他處。沿挪京中央卡爾約翰大街北上，新古典主義式王宮映入眼簾，王宮建築本身比較簡約，略輸丹京斯京，但宮前有空曠地，稍增氣勢。繞至宮後繼續北行，抵霍拿公園（Frognerparken）。此園最著名的是上世紀三四十年代古斯塔夫・維吉蘭塑造的逾二百座青銅大理石雕塑，合稱維吉蘭雕塑（Vigelandsanlegget），故旅遊書慣稱該地「維格蘭雕塑公園」，實則當地地名法案（stadnamnlova）並無此名。該等雕塑呈現人體隨一生之變化，頗富意味，當中以名叫「輪迴」的石柱（monolitten）至矚目。霍拿公園前身的莊園至今猶存，闢作挪京市立博物館（Oslo Bymuseum），免費入場。是日天色特佳，若時間充裕，大可閒度一個晌午。園旁有維吉蘭博物館（Vigelandsmuseet），有興趣者可購票詳知該雕塑家之經歷和作品。
下午憑聯票參觀四座博物館。近操晨砲的港灣堡壘有建築博物館（Nasjonalmuseet – Arkitektur），似丹京建築藝術中心專講當代建築與新潮流，其中一間展廳有積木，我忽拾童趣堆砌起來，又在畫簿亂描些中式亭台樓閣，恐後來者不知所以呢。隔街有現代藝術館（Museet for samtidskunst），建築本身頗厚重沉穩，裏面的所謂現代藝術則天馬行空，甚至荒誕不經，自非我等門外漢所能明瞭者。走過商街，義工邀途人免費擁抱，有男童人細鬼大，直撲美女胸懷，自娛娛人。午兩點半到裝飾藝術與設計博物館（Kunstindustrimuseet），類近丹京設計中心，以日常用具如杯盆器皿呈現的工藝為主旨，悅目之至。藝術必須與人的生活發生關係，於尋常物品處下心思，至能增加生活情趣。本來以為時間預算周全，孰知連續三夜不曾臥床，一旦坐下，眼簾遂閉，靜止如偶，醒來發覺自己在原處大半小時，真不知期間多少人看見我的睏相。因體力不繼失算，只能揀睇鍾意的主題展廳，例如新藝術（Art Nouveau）式作品。午四時，重返國家畫廊（Nasjonalgalleriet），戲肉是愛德華・孟克（Edvard Munch）的《吶喊》（Skrik），慣用whatsapp表情符號的人對此畫不會陌生。日本同學Ｋ曾裝起畫中人的鬼臉與畫中人合照，但今次來到孟克展廳，門口大刺刺寫着不准拍照，更有中年女看更緊盯着，無從入手，只能用眼去看。便取回行李，略遊京中各處。國會大樓（Stortingsbygningen）前有示威者揮舞奇怪旗幟，又懶得上前問問所執何事。市政廳臨阿克港區（Aker Brygge），前身是挪威最大船塢，一九八二年結業，經財團翻新成高尚消閒購物區，恰如丹京新港。富貴者可以入座露天餐廳極視聽口腹之樂，慳儉者可以幫䞋流動熱狗車雪糕車，窮學生如我可以拖着行李時行時止享受海風。
白田筆談 