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Why should the process of justice be impartial? A response to Jonathan

07 Dec 2017

Jonathan asked a good question in response to our VLOG this past week, and I think it merits a separate response to spell it out.  For those that did not watch the video, I basically argued that Christians should be concerned when the pursuit of justice is guided by politics, rather than justice being blind, i.e., impartial.  In the discussion, I suggested that the prosecution of both Mr. Manafort and Mr. Flynn were political in nature, and that others committing similar “crimes”* would not be charged, and that should trouble Christians, prompting Jonathan to say:

Dr. Haymond – While Flynn’s post-elect conversations might not be “untoward” it is worth noting Flynn nonetheless lied to the FBI about those presumably appropriate conversations four separate times. That seems to be more important; why should Flynn lie–four times!–about what Dr. Clauson characterized as legal activity. Also, why are you so concerned about Mueller’s “partial” process? Because of prosecutorial discretion? I’m a bit puzzled by that line of criticism.

First up, I think that justice should be blind, i.e., impartial, because God has made that the standard of justice.  I’ve applied this previously to taxation, but how much more should it apply in the general case of criminal justice.  As Don Boudreaux is fond of saying, my vanity requires me to repeat that argument here (also my laziness at not wanting to reformulate an argument previously made!):

There is strong Biblical support for treating people impartially, and in an opposite way, strong condemnation for showing partiality or favoritism.  This is because we are supposed to image God, and God is impartial.  Romans 2:11 states clearly that God shows no partiality with respect to salvation, (see also Deut. 10:17, Acts 10:34, Job 34:19, and Eph. 6:9).  I agree that this is not conclusive, since it isn’t directly talking about taxation, but it does give us an idea of where God’s heart is for how we treat one another.  There is a reason why Lady Justice is blindfolded.

However, there are other passages which take us closer to the heart of the matter. Lev 19:15 says “‘You shall do no injustice in judgment; you shall not be partial to the poor nor defer to the great, but you are to judge your neighbor fairly.”  In this verse, we are told that not only should we not favor the rich, but surprisingly, we should also not favor the poor (see also Ex. 23:3).  But why should we think this has applicability to taxation?  A main purpose of Leviticus is to show how the Israelites can live a holy life.  Chapter 19 is the pinnacle of how we live holy lives in relation to others, and the commands are given a solid reason—“I am the LORD”–which is repeated throughout the section.  Interestingly, Ch 19 is widely viewed as repeating the Decalogue; clearly Leviticus is summarizing the essence of what Holy Living looks like under God’s moral law.  In the middle of this section on Holy Living, comes verse 15, which describes what justice looks like.  Do we treat each other according to their just due?  Lev 19:15 helps us understand that a standard for personal holiness will be reflected in a standard for corporate holiness.  As John Hartley says in the Word Biblical Commentary, “Since God is just, his people must establish justice in their courts as the foundation of their covenant relationship with him.  The inner strength of a nation resides in the integrity of its judicial system.”  While, this is not dealing with taxation, it is dealing with justice in the social setting of the courts—it seems reasonable to conclude that if impartiality is required for the courts, it would be required of government action in general.  At least the burden of proof should be on those advocating for a system of partiality, given the extensive Biblical support of impartiality.

For those that think this standard might only be applicable to the Old Testament, the same concept and appeal is made in James 2:8-10, where James condemns showing partiality to the rich who visit the church.  But do not think that somehow James would have been fine with partiality going in the other direction.  In his condemnation, James references Lev 19:18, “You shall love your neighbor as yourself,” and is summarizing what the law requires:

8 If, however, you are fulfilling the royal law according to the Scripture, “You shall love your neighbor as yourself,” you are doing well. 9 But if you show partiality, you are committing sin and are convicted by the law as transgressors. 10 For whoever keeps the whole law and yet stumbles in one point, he has become guilty of all.

Showing partiality makes you a lawbreaker; even in the New Testament, God’s standard of social relations is impartiality, carrying over the requirements of the Law to our New Covenant relations.  We often memorize James 2:10 to illustrate the necessity of salvation, since a works-based approach can never get you “clean” enough.  And that is well and good.  But let’s remember the context in James, and what it is that is offensive to God.  Even if you get everything else right—if you are showing partiality–you are against the will of God.

Let me give a fictitious (but not unreasonable) example to illustrate.  Most of the concerns of African-Americans vis-a-vis injustice by the state come down to differential treatment.  So a poor black person is pulled over in his old beat up car by a police officer for a broken taillight, whereas a rich white person (as evidenced by a newer car) might also have a broken tail light from backing out of the garage this morning, and they are unlikely to get pulled over.  Things go south very quickly because the African-American male had crack on him (or did he–did the police plant it?), and pretty soon the young male is in jail and his life ruined over a felony drug conviction.  Yes, he was guilty (or was he?), but the white person that does the same thing would never be pulled over.  The fact that justice is impartially applied leads to deep resentment and continued social strife.

While this example is fictitious, consider yesterday’s report that members of the Congressional Black Caucus are incensed that Mr. Conyers was forced to resign–they claim that white politicians like Al Franken, Donald Trump and Roy Moore are let off the hook.

“Certainly it seems as if there is indeed a double standard,” said Rep. Marcia Fudge (D-Ohio), who was involved in Conyers’ retirement negotiations last week before Jackson Lee and Monica Conyers derailed them. “When it happens to one of us, we’re guilty until proven innocent. They’re just finally starting to talk about Blake Farenthold, who is a member sitting here who paid out $84,000.”

Without agreeing to this perspective, I certainly agree that it is a legitimate concern–differential justice is injustice.  While I am not a libertarian, I do share most of their policy perspectives, including prison reform, in part for some of the same reasons as progressives (which I outlined on this blog over two years ago).

So back to Jonathan’s point.  Does the fact that Mr. Flynn lied about perfectly legal conduct to an investigation that never should have happened bother me?  Yes!  But I don’t like open-ended, “let’s see what we can find,” investigations.  Progressives rightly decry this when applied to minorities (and I agree with them), they should be equally outraged in this case.

Finally, beyond the biblical morality perspective, when we criminalize political behavior that we disagree with, why are we surprised that good people don’t go into office and then we’re left with Roy Moore and Al Franken as our choices for Senator?

* I put crimes in quotes because Mr. Manafort’s actions are illegal based on legislation, but I don’t think there is anything inherently immoral about not registering as a foreign agent.  I subscribe to Hayek’s distinction between law and legislation. i.e., that just because something is illegal doesn’t make it an action of morality (outside our moral requirement to obey any law).  So, to illustrate, if Ohio gets rid of legislation prohibiting the killing of others, its still against the law, i.e, the moral standard we are accountable to God under, even if the state abdicates its responsibility to put God’s law into legislation.

EDIT Correction:  I had mistakenly put Representative Dingell as being forced to resign when it was Representative Conyers; both long serving Democratic congressmen from Michigan.  Sorry for the error.