遊學第一理由，自然是抽身於香港這個充滿競爭的社會，過另一種生活。儘管當地人未必同意，政商界則很樂見世界快樂國家排名上丹麥屢屢掄元，而丹京機場的嘉士伯啤酒廣告也不必作任何修改（「Welcome to the world’s happiest nation」）。北歐諸國文明似乎超然物外，講「hygge」（丹麥語，近「溫馨」）、「lagom」（瑞典語，近「中和」）、「nordic way」（北歐模式）的書大行其市。我想千言萬語，所謂北歐文明者無非「敬天愛人」四字－「敬天」者，非惟基督宗教（況北歐人上教堂的比例在歐洲算低），乃對自然之愛惜。當然，北歐地廣人稀，連最大的瑞典人口也是區區九百幾萬，保護水土比較容易，卻也不能抹殺當地在環保方面的努力，例如大部分超級市場都設回收機器，並向使用者回贈現金劵，實物鼓勵居民踐行環保，這點很值得亦很適宜人煙稠密的香港學習（致：香港特區環境局）；「愛人」者，貧富貴賤之大致均等。雖然我在瑞典斯京也曾目睹人露宿街頭，在丹京也有不少人要待特惠時段才到超級市場購物，但是比起香港貧富懸殊、貴賤立判之惡劣境況已經令人稱羡。
「距離之死」這個字，我是從留德香港同學Ｃ首次聽聞的，當時我們不是在討論互聯網通訊革命，而是過度旅行的弊端。現今書局充斥旅遊書籍，但是批判旅遊的書也開始出現，例如《旅行的異義》（Overbooked: The Exploding Business of Travel and Tourism），認為過度旅遊會造成環境污染、資源浪費，甚至淘洗一地的原有氣息，如威尼斯和巴塞隆那已深受其害。的確，有一兩段旅行也是為去而去，其他地方雖係嚮往已久，卻因貪多務得而流於走馬看花。若我早點聽到他一席話，或會多留點時間在丹京。
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.
白田筆談 