The Law Doesn't Have All the Answers

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What is legal is not always fair.

We have a vague sense in this country that law and morality are one and the same. That anything that violates the law is immoral, and anything immoral is a violation of the law.

Sorry, it doesn't work that way.

The law and morality do sometimes overlap, but mostly, the law is an arbitrary set of rules that tries, however imperfectly and even nobly, to make sense of human behavior. The law, as Aaron Burr (who was not a notable upholder of it) once said, is whatever is boldly asserted and plausibly maintained.

There is an old axiom: much law, little justice. We like to think the law provides some measure of justice, and sometimes it does. But justice is a more cosmic principle than what the law embraces. The law is good for figuring out the penalty for jaywalking but not for adjudicating each of our just deserts.

And in situations like the American civil rights movement and in apartheid South Africa, what was moral was resisting the law because the law itself was unjust.

All of which is a long way of saying that what happens in Florida and Washington over the next few days may be legal, but it might not be fair or just.

The Gore team's popular argument is an appeal to fairness and justice. The idea that, gee, let's count every vote because it's only fair that the person who got the most votes wins the election.

The Bush team's popular argument is an appeal to reason. It's, Look, nothing's perfect, rules are rules, and we don't have time to go through this thing with a fine-tooth comb. Life's unfair; get used to it.

I think it's probably safe to say that on November 7 more Floridians went to the polls with the intention of voting for Al Gore than for George Bush. The absurd butterfly ballots, the ridiculous punch card technology, the confusing instructions to African-American voters, all conspired against Gore and those who wanted to vote for him. Is that right? Hmm, no. Is that just? Probably not. Is it fair? Well, yes, I'd have to say it is. It's fair because those are the breaks. It's fair because no human system is perfect. And it's fair because, well, because life isn't.

The Gore team would say, Is it too much to ask that every vote be counted? The short and sad answer to that is, Yes, it is. The voters didn't fail Al Gore, the system did, and there's not always a remedy for that.

At the same time, I find the Republican argument that the courts are making law rather than interpreting it to be specious. What do you do when you're confronted with incompetent lawmakers and a legislature like Florida's that enacts imprecise and contradictory laws? You can't just throw up your hands and walk away. The court's job is to try to make sense out of statutes that don't always make sense.

It was the conservative judicial saint Robert Bork who once said that the morality of the law is framed by the legislators who make it, not the judges who interpret it. But what is the morality of Florida legislators who are rushing to enact a law so that the brother of their governor wins their state regardless of who really won the vote?

There has been a lot of talk of the imperial judiciary lately. Conservatives generally abhor judicial activism, or what they call judicial legislation. But in this whole imbroglio in Florida it seems to me that the various judiciaries have acquitted themselves better than any other of the dramatis personae. The candidates have been feckless and self-serving; the legislature has been reflexively partisan; only the courts and judges have actually tried to take a step back and try to make sense out of things.

Throughout American history there has always been competition among the three principal branches of our government. That's what the framers wanted. Sometimes the executive has been ascendant while the courts and the legislature have seemed to hibernate. And sometimes Congress or the courts seem to take the lead in setting the currents of our society. At times of crisis in American history, the courts have often been the institution that helped steer the country to the right path. Brown v. Board of Education was a triumph of judicial activism and morality.

That formula is not the model for what the U.S. Supreme Court will probably do about Florida. They will probably look at this in the narrowest way possible, despite the broad implications of what they do. But that might be the way for a broader solution.

In "The Merchant of Venice," Shylock says over and over, "I stand for law." But the verdict of the play is that true justice is more than a strict adherence to law, and that what is right is not always what is legal.

Whatever the court decides will be legal, but it may not be right.