(Juris)Prudence

Ever wonder why judges wear robes? It's theater, really. Literally, theater.

It works like this: the legislature makes the rules; the executive enforces the rules; the judiciary decides the disputes. The courts, then, are decision-makers of a very specific sort: they decide disputes as theoretically neutral arbiters. That's it. That's all. That's what they're "for." And as a result, they're curiously toothless. That is, they lack an enforcement arm of their own. Others are supposed to comply with their decisions, and they do have the power to order the executive branch to lock people up who don't go along with the court's orders ("contempt of court").

But what if the executive refuses?

A court has no army. It controls no funding. Its power comes from the regard with which its decisions are held, the willingness of more "political" branches of government to comply with its decisions. Basically, an executive with sufficiently strong backing from society could tell the court to go hang, and the court would be left huffing and making angry faces. The only solid measure of the court's power, then, is the respect with which it is viewed, the credit given its decision-making-- its "legitimacy" as the final arbiter. Refusing to carry out a final decision by the judiciary has to be socially and politically unthinkable: if the court gets no respect, it has no power.

As a result, there's an element of theatrics to the daily affairs of any court, from "all rise" to the dress code of judges, court personnel, and lawyers, to the layout of the courtroom. In general, the higher the court, the more seriously it takes the theater. Local, state-level trial courts are less formal than the state courts of appeals, which are less formal than the state supreme courts.

Our own Washington State Supreme Court is housed in a building literally called the "Temple of Justice." The structure pretty much lives up to its name.

Federal courts generally take the game more seriously than state ones, I presume because the federal government is something more psychologically distant and impersonal, less a part of most people's day to day experience, and considered "superior" to the state courts. An example of this is the deeply formalized "well of the court," an expanse of only-too-inviting carpet between counsel's tables, the judge, the jury, and the witness, through which no one may walk while court is in session, no matter how convenient it might be to do so.

If all of this sounds silly or unnecessary (or like a bit of a fraud), consider another "legitimacy-dependent" institution: the dollar. Money doesn't have to work very hard for us to think of it as valuable, maybe, but it's fundamentally an abstraction of wealth given value only by our agreement to treat it as such. While a dollar bill doesn't wear robes, it does wear George Washington on its front and the Great Seal on its back. Of course, if we dispelled that particular illusion and started turning our nose at any system of exchange more abstracted than barter, bad things (well, worse things) would happen to our economy.

The power of the court is no less illusory, but also no less important. It plays games of legitimacy in order to maintain its power, but maintains its power in order to maintain its function; without it, things would be much worse.

Looking Lunatic

Lately, I've been getting a lot of my world news from the BBC. As a news source, it's got a lot of merits: it's free, it's generally insightful, it's used as a primary news source by much of the world, and it gets high marks for accuracy. You could do a lot worse, so long as you don't mind getting your news from what is, deep down, an organ of the British government.

One oddity for an American viewer, though: it's a foreign (if friendly) news source with a foreign (if friendly) perspective that closely monitors, and informs much of the world about, domestic American affairs. It's like going to your neighbor's house and looking, from there, back in through your window to see the state of your own living room. This being the United States we're talking about, this is presuming that your own house is a grand but decaying edifice and that your family is making an art form out of dysfunction. It's a fascinating view, not least because you get a sense of exactly what the neighbors find most fascinating about being your neighbors.

In our case, I get the impression that they're pretty damned fascinated by our love affair with the personal arsenal. At time of writing, this has been dominating the "most read" column on the BBC website for the last couple of hours (it just dropped from #1 to #2, actually, unseated by the latest from Libya).

I was about to write that the U.S. is not unique in the world in terms of gun ownership, but it turns out I'd have been dead wrong, there. With 88.8 privately-owned guns per 100 residents as of 2007, we lead the world in guns per capita, though I have to wonder how accurate the statistic from Yemen (54.8 guns per 100 residents) can possibly be.

American justifications for widespread private hand-cannon ownership are well-documented, well-debated, and, at this point, well-entrenched. Self-defense, self-reliance, protection against an overreaching national government-- we're kind of big on the "well-armed individual self-determination" thing right now, and the recent Heller decision confirms that the Supreme Court is following this same political script. Somewhere in all of this, we as a culture seem to have lost interest in the debate. It's decided: private gun ownership is a public good, and the occasional massacre no longer seems to stir much debate on the subject-- except, perhaps, whether we should be opening still more venues (college campuses, political events, national parks) to the carrying of firearms.

It really makes me wonder what would be necessary to turn this particular tide-- and to what extent the feeling in much of the rest of the industrial world, which seems to have come down on just the other side of the debate (as with the death penalty), makes us dig in our heels even more. It also makes me wonder just how blind the British must think we are, to be able to undergo these sorts of incidents almost without comment.

I guess we just accept the odd massacre as the price of doing business, these days.