KAROLINA WISNIEWSKI
<Opinions Editor>
Let’s be honest for a second: as a law student, filling your schedule with extra-curricular seminars and lectures might not seem like the most tempting way to spend free time. Wouldn’t it be nicer if we used that time to, I don’t know – top up the two hours of sleep we usually get? Or prepare a real meal, one that doesn’t consist of untoasted Pop Tarts and Red Bull? Or finally spend some time exercising outside after inhaling nothing but stale and dusty library air? Just joking about the last one – I would obviously catch up on the latest episode of Honey Boo Boo instead.
True as all this may be, when I heard that Christopher Heath Wellman was coming to speak at the U of T Centre for Ethics, I was determined to be there – even if that meant falling behind on my reality TV schedule.
A philosophy professor at Washington University in St. Louis, Wellman’s research focuses largely on legal and political philosophy. His argumentation is always focused and sharp, and his ideas are daring. This time was no exception. The talk he delivered, “Rights Forfeiture and Procedural Rights,” argued for the idea that there is no general moral right to due process. Yeah, you read that right. Convicting people sans fair and public trials is sometimes ok. Outraged/incensed/shocked? Then you have something in common with the twenty or so people who unforgivingly grilled Wellman following his presentation. Unthinkable as this surely is to most law students, the way Wellman argued toward his conclusion is undoubtedly interesting and worth a look (if not convincing in the slightest).
Wellman began by illustrating that there is no right against double jeopardy. He did so mostly by analogy. Think of a statute of limitations. There is huge instrumental benefit to adopting such laws, but we can argue without much trouble that they don’t represent a moral right or truth. Is there some objective, pre-institutional ethical principle that justifies pursuing legal action within 7 years, but runs out at the 7 year mark, thereby rendering it not ok to pursue that same action after 8 years? Of course not. The time period specified in a statute of limitations is largely (if not entirely) arbitrary. It represents a time period that we think is fair to both the plaintiff (so that they have time to decide whether to pursue legal action and prepare accordingly) and the defendant (so that they are not tried for a crime committed 50 years ago). But we can all agree, without much debate, that if the date of a limitation period was moved forward or backward by a year, this wouldn’t do much to violate the rights of any of the parties involved (except for in some truly exceptional circumstances that are so exceptional they don’t do much to affect the other 99.99% of the time that there are no negative effects). Moving on.
The right against double jeopardy, says Wellman, is like the time period laid out in a statute of limitations. Just as we could move the date of a statute of limitations, or alter a speed limit by 5 km/h without violating rights, we can change the right against multiple prosecutions. The distinction between single or multiple prosecutions is the same as the distinction of a statute of limitation being 7 or 8 years. As long as there is some rule (like, say, you can’t be tried for a crime more than twice), to ensure that defendants are not harassed by never ending prosecutions and that there are some guidelines that officials have to stick to, no rights will be violated. Think of the following scenario: Jane commits a crime, is tried and found not guilty. And say the prosecutor believes she is guilty, so he tries her again. Say this time, she is found guilty. Wellman says that as long as she actually did commit the crime, her rights are not violated. There is a pre-institutional right against being punished for a crime you don’t commit, which is why this scenario wouldn’t work if Jane was innocent. But otherwise, we should have no problem allowing courts to try people two or three or four times: if they are innocent, they won’t be convicted, and if they aren’t, well then, all the better to increase the odds of conviction, right? Right (disclaimer: I agree with none of this).
The reason it’s ok to mess around with periods of limitation and speed limits and the number of times someone can be tried is because these are not inherent, pre-institutional rights. They are contingent. There is no reason our legal system will fall apart and the dignity of persons everywhere will be threatened if we change the speed limit on Main Street from 40 km/h to 50 km/h. And if people have 8 instead of 7 years to commence legal action. And if we dispose of the right to due process. Look how flawlessly each of these premises follows from the previous one!
The right to due process, says Wellman, is instrumental too. Let’s modify Jane’s situation a bit to illustrate this. Suppose that she commits some heinous crime that has wide-reaching effects on everyone and there is great pressure on law enforcement officials to figure out who the culprit is. Now suppose there are absolutely no leads and Jane is cackling evilly, convinced she got away with it. So the Prime Minister or President or whoever is fed up with all this really bad publicity holds a referendum asking people to think about whether they’re cool with the following situation: we hold a lottery, pick a name, and punish that person. And suppose everyone agrees and the lottery goes ahead (please try to stay with me; I’m almost done). For a final twist, suppose Jane’s name was chosen.
In this case, her rights were not violated. The rights of her compatriots were, but they willingly forfeited their rights by agreeing to that referendum. If someone forfeits a right, we can’t say it was violated, for the very reason that it was forfeited. Jane, says Wellman, is like the compatriots who choose to forfeit their rights, because when you engage in criminal activity, you choose to forfeit your rights.
Wellman went on to consider some objections from Anthony Duff, Professor at the Faculty of Law at the University of Minnesota (who, incidentally, is speaking at Osgoode this week, on March 14th and 15th – be there!). One of Duff’s points is that justice is not fully done unless it is public; we need this procedure to be fair and reliable, which means they must be public. Wellman’s response, in a nutshell: publicity is nice, but we shouldn’t conflate the notion of its niceness with the idea that it is necessary.
Duff also notes that doing away with due process is essentially doing away with the right to be heard. Only a trial can ensure this. Wellman says that Duff confuses the reconstruction of what we would like a liberal democracy to look like and the fact that there may be very real instrumental reasons to have a right to due process with the idea that it is a pre-institutional moral right.
Wellman was very clear that he was not advocating that we actually do away with due process and the right against double jeopardy – he was just urging us to rethink these ideas. Essentially, he was suggesting that if we did eliminate these principles from our legal system, no rights would be violated.
The whole presentation reminded me of Alan Dershowitz’s ideas regarding torture. Dershowitz argues against an absolute prohibition of torture, saying that it can sometimes be justified. Like Wellman, Dershowitz builds these absurd thought experiments (if we knew there was a bomb and we knew it would go off at exactly noon, and we had captured one of the terrorists that planted it, and we knew that he knew where it was, it would be ok to torture him in order to find out its location, because it would save thousands of lives) that conjure up a far-fetched scenario purely to undermine commonly held moral and legal norms. Thought experiments can be useful in some cases, where you only need one counter-example to throw into question an entire theory or supposition; the idea that you only need to point to one black swan in order to disprove the idea that all swans are white. But the discussion Wellman and Dershowitz are building is assuredly not one of these cases. And what about the idea that Wellman flippantly mentions: there is no moral right to due process. Um, isn’t there? If he’s trying to subvert the legal and moral status quo, the burden of proof is probably on him to account for why he is doing so. You can’t build your argument from the premise that the sky is green and expect me not to question your starting point.
All in all, it was a thought-provoking and illuminating talk. And from a law student’s perspective, mildly infuriating and hugely unsettling. I’m dying to to hear what other Ozzies think, so please feel free to type up a reply and we’ll include it in our next issue.