“A nice knock-down argument,” or the rule of law in a post-truth society

“Post-truth” —  the 2016 Word of the Year — relates to “circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.”

So “wiretap” means wiretap, unless it doesn’t. Employment numbers that were “phony” are now real. Anything that can’t be supported with evidence is simply an “alternative fact.” An adverse ruling by a “so-called judge” must have been made “for political reasons.” It’s as if we have gone Through the Looking-Glass, where Alice told Humpty Dumpty that “‘glory’ doesn’t means ‘a nice knock-down argument.’”

'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master — that's all.'

The rule of law doesn’t work like that. There are no “alternative facts,” there is just “the truth, the whole truth and nothing but the truth.” The rule of law and the administration of justice are entirely reliant on objective facts and evidence, and without a process to determine the objective truth of facts, the law can be applied neither correctly nor fairly. The law becomes whatever the strongest or loudest person says it is. An independent judiciary is essential to this task. Judges must have the freedom to decide cases impartially, without improper influence or political pressure.

In a post-truth, Looking-Glass world, that process is inverted:

Let the jury consider their verdict,' the King said, for about the twentieth time that day.

`No, no!' said the Queen. `Sentence first — verdict afterwards.'

`Stuff and nonsense!' said Alice loudly. `The idea of having the sentence first!'

`Hold your tongue!' said the Queen, turning purple.

`I won't!' said Alice.

`Off with her head!' the Queen shouted at the top of her voice.

Personal attacks on individual judges (like the president’s recent swipe at a Federal Court trial judge as a “so-called judge”, and tweeting, “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system”) undermine public confidence in the judiciary and respect for the rule of law. The biggest threat to the rule of law posed by a post-truth society is the risk that the judiciary will no longer be seen as a legitimate institution. There is a significant difference between criticizing the ruling of a court and personally attacking the judge who made the ruling, calling into question the legitimacy of the court. An erosion of respect for the legitimacy of the courts leads to an erosion of respect for law, and ultimately to an unstable and more dangerous society.

But our judicial system has a number of things in its favor. It employs a transparent procedure in which each side is entitled to present evidence in a public hearing, subject to written rules of evidence and a standard of proof, through witnesses under oath and subject to cross-examination by the opposing side. This is what a trial in an American courtroom looks like, and at the end of that process, a judge or a jury composed of citizens sworn to be impartial reaches a determination of the true facts based on the evidence presented under the appropriate standard of proof, and the judge applies the law to those objective facts to reach a decision that is substantively correct and procedurally fair: a just result.

This system, like any human endeavor, is not perfect. Judges are human and make mistakes. Some judicial decisions are incorrect, or unfairly reached, but our judicial system contains a series of checks and balances to minimize and correct errors. There are standards of proof — the necessary amount of evidence required to prove a fact. There are courts of appeal to review the verdicts of juries and the decisions of trial judges, and ultimately a Supreme Court with the final say. Justice Robert H. Jackson famously wrote of the Supreme Court that, “We are not final because we are infallible, but we are infallible only because we are final.”

Should people be free to ignore judicial rulings they “know” to be wrong? Should state legislatures be able to overrule Supreme Court decisions (something that has been recently proposed) We accept the authority of the courts as part of the social contract, to act as a check against the political branches and to uphold fundamental rights. In the absence of an impartial institution to resolve disputes under the law and to balance rights that come into conflict, we are left either with a tyranny of the majority, dictatorship or anarchy.

Thankfully our judicial system is resilient. It has successfully endured the growing pains of a young nation, the self-inflicted wounds of civil war, economic turmoil, foreign war, terrorist attack, popular uprising and attempted abuses of power by individuals and institutions, public and private. Our judicial system is administered by learned and skillful women and men dedicated to the ideal of the rule of law.

“Traditionally, the rule of law has been viewed as the domain of lawyers and judges. But everyday issues of safety, rights, justice and governance affect us all; everyone is a stakeholder in the rule of law.” (World Justice Project)  Whether you are involved in government, business, a community of faith, the arts, the media, public health and safety, education, science and technology, or the environment, the rule of law is vital to a vibrant and stable society, and you play a critical role in promoting and protecting it.

The rule of law is the surest defense against the chaos and confusion of a post-truth world, and as we each gaze into our own looking-glasses, we affirm the pre-eminent self-evident truth that everyone is created equal under law.

Andy Hathcock

Associate Judge, Travis County

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