Monday, 14 August 2017

The Enlightened Middle

Today there was an opinion piece in the CBC that I had for force myself to read, but I don't recommend you do the same. Attacks on due process are coming from both sides of the political spectrum, says Jonathan Kay.

There are two things that Kay might have chosen to argue in this piece: The first would be that due process is important and innocent-until-proven-guilty is a hallmark of our society that must be defended. The second is that he is in the enlightened middle in the midst of a political shitshow where left and right are equally guilty.

Now I could talk about how the "left and right are basically the same" argument is always a defense of fascists. I could talk about the about false equivalences. I could talk about the outcome of the enlightened middle; we've seen in recent days where the argument leads. It leads to the president of the United States feeling he has cover to keep his white supremacist base happy by refusing to denounce a murderer. I'm happy to address all that with throwaway statements.

I will take a moment to marvel that in his effort to prove he's the middle he defines the Liberal party of Ontario and the Liberal party of Canada as "the left." Supply side economics is not he left. Basically everyone Kay himself is polarized and irrational.

But back to the supposed subject, due process. Due process isn't trivial to defend. No one can reasonably argue it's outcomes aren't racist and misogynist. No one can reasonably argue it doesn't favour the wealthy over the poor. A person can reasonably argue that it is still the best system we have, that we should support it and advocate for incremental change within the system rather than attempting vigilante justice. That argument can be made, but it has to be made.

The only argument that Kay has to offer is that if we don't defend due process, the mob might come for us next. Not only is that an argument that literally
everyone has heard before
, but it's also a very flawed argument. If society is descending into barbarism as two factions vie for supremacy, and your only interest is looking out for number one, you can either keep your head down and not choose a side until you have to, or you can pick the side that you judge to be stronger. The idea that the best way to protect yourself is to stand steadfastly by the law is nonsense.

Give some reason beyond immediate self-interest. Self-interest amidst a system that is failing is why people join the factions that Kay denounces.

I am a decidedly unreasonable person. Crazy even. I have satirically suggested we get rid of due process for sexual assault and assume guilt based on accusations. But my argument that such a society would be on no worse moral footing than our own wasn't satirical. I've challenged people to argue why presumption of innocence does any of the things they think it does. The idea that an oppressive state will oppress people only if it is within the rules is a farce.

Should the black citizens of Maycomb have stood up for due process because Atticus Finch did his best to defend Tom Robinson? It's not hard to find examples where any person of principle would stand against "due process." I don't think it is reasonable, with our current system, to stand up for due process when it comes to sexual assault, or to believe on a personal level that a person actually didn't sexually assault another person just because they were found innocent in a court.

The vast majority of people who want people tried by public opinion don't have a bizarre principled stand on the subject, they just don't like what they see going on and they want things to be remedied. Actually believing in the law in a real way is so rare that we might think it's a neurodiversity issue. So in a way I basically agree with Kay. It's just that I see people losing faith in a system that needs to be fixed, and he sees an opportunity to talk about how virtuous he is.

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