Defending Bespredel
It is difficult not to think that the actions of the Trump administration since taking office two months ago have been lawless to a great extent. Indeed they evoke a word Russia-watchers will be familiar with: bespredel, which literally means an absence of limits, but refers specifically to a state of general lawlessness and resulting brutality in the exercise of both public and private power or, in Wiktionary’s useful definition, “[a] fundamental breakdown in the established norms of a society, due to its citizens no longer having a collective understanding of the customs, values or institutions of that society”.
But the defenders of one legal theory are working hard to provide at least a patina of legal plausibility for seemingly indiscriminate firings of civil servants, the random detention of actual or imagined illegal immigrants, and summary revocation of even permanent residents’ legal status. These are, of course, the self-styled common good constitutionalists. In defending the undefendable, their rhetorical tactics are the same they have been using since the beginning of their movement a few years ago: hint at transgression while simultaneously appealing to tradition; sound both outré and orthodox. In short, make every argument what Scott Alexander described as a “motte-and-bailey”: the rhetorical device that consists of switching between expansive-but-scary and banal-but-unobjectionable versions of their claims as suits the circumstances.
Co-blogger Mark Mancini and I have already written about this in the context of statutory and constitutional interpretation. I come back to this theme now in response to this instantly-notorious post by the common gooders’ godfather, Adrian Vermeule:
The motte-and-bailey rhetoric here is striking, and worth unpacking. Professor Vermeule is trading on an intuition that is compelling well beyond the four corners of his own theory ― and he is doing so in an entirely unsuccessful attempt to justify actions that should be objectionable on any sensible view of the scope of legitimate public authority.
The Motte
On one ― acontextual ― reading, Professor Vermeule’s claim is sound, albeit dressed up in natural law brocade. “Due process”, or procedural fairness as we put it in Commonwealth jurisdictions, is obviously “not an end in itself”. That is as true outside “the [classical legal] tradition” to which Professor Vermeule is appealing as it is (I’ll take his word on this) within it. Lord Hewart, for example, who ― perhaps not coincidentally ― is famous for his locus classicus on the importance of judicial impartiality, also wrote, in The New Despotism, that
[n]obody outside Bedlam supposes that the reason why Courts of law exist in a civilized community is that the founders of the State have believed happiness to consist in the greatest possible amount of litigation among the greatest possible number of citizens. (155)
Due process is important because, and insofar as, it serves other values ― above all, arguably, those of human dignity (as, for example, Jeremy Waldron argues in “The Rule of Law and the Importance of Procedure”), but also those of good governance. When appropriate legal procedures are followed in the determination of people’s rights and obligations, people can feel that they have been listened to even if they lose the case, and thus treated respectfully. And, for its part, the public authority making the decision will be better informed about the issues and the stakes, leading, presumably, to a sounder disposition on the merits.
If one wants to speak like a natural lawyer, one is free to describe these values as “the common good”. One is also free to say that procedural rules that do not serve these values are not “properly law”, as Professor Vermeule puts it, or not the “central case” of law as John Finnis would say. But one need not speak in this jargon to understand and perhaps agree with what is being said. One can subscribe to methodological individualism and accept the public choice critique of concepts like the common good, but value human dignity and good governance. One can refuse to buy into the natural law tradition, let alone the Catholic strand of that tradition, wholesale, and still agree with Lon Fuller that law that fails to reach certain “internal” moral standards ultimately fails to be law properly so called, and one can find this position intelligible even if one does not ultimately agree with it.
Perhaps more to the point, one need not be a common gooder to worry about excessive procedural requirements which, though meant to advance the sort of values procedure is supposed to foster, impose excessive burdens on the public purse, or on the attainment of other worthwhile aims that public authorities may pursue, as well as on their ostensible beneficiaries or other people in analogous situations. I have written about this here: there are costs, as well as benefits, to procedural fairness, and it is important to think about these costs when designing procedural rules.
If Professor Vermeule were only drawing his readers’ attention to these trade-offs, he would be making a wholly sensible if perhaps unremarkable (though, admittedly, insufficiently remarked-upon) point. But the context of his post makes this interpretation implausible.
The Bailey
The context is well known. The Trump administration has been deporting people left, right, and centre, for a variety of reasons, but in particular on suspicion of gang affiliation or of terrorist sympathies. And it is asserting that it need not respect any procedural requirements before carrying out these deportations. Anyone who is not a citizen (and recall that this same administration denies the citizenship of large numbers of people who were uncontroversially understood to be citizens until it took office) has no right to be or remain the United States, so they can be put into shackles and summarily kicked out, or even packed off to a foreign slave camp. Law enforcement suspicion is enough.
A moment’s thought, moreover, is enough to understand that actually being a US citizen isn’t going to protect anyone who falls into the clutches of a law enforcement apparatus uninterested in establishing the citizenship or other status of the people they seize. To take up an example with which Professor Vermeule and his fellow aficionados of the classical legal tradition should be familiar, Roman citizens were not safe from crucifixion by Gaius Verres, though the law said otherwise. Just as Verres could have a man dragged from his dinner into gaol and crucified, so Donald Trump thinks nothing of taking men and women from their families and putting them on a plane to a prison at the horror of which he openly laughs.
It is in the midst of all this that Professor Vermeule comes forth with his admonition that due process is not truly law, or is not required by the law truly understood, if it is not for the common good. As I have noted, it’s fine to say that in the abstract. But Professor Vermeule is not speaking in the abstract. He is, in his motte-and-bailey, I’m-not-saying-it-but-I’m-also-not-not-saying-it fashion, making a point about current events.
And so I wish Professor Vermeule and those tempted to embrace his theories would ask themselves: what part of the common good is served by denying due process to people who, having been charged with no crime, let alone found guilty of one, are sent to the worst prisons in the hemisphere, or rent from their families and exiled from a country in which they were studying or working? Does doing these things respect the dignity of these people ― created, so Professor Vermeule believes, in the image of God? Does it make for more enlightened decision-making by the authorities? Because if the answer is that it does none of these things, then invocations of the limits of due process as an instrument of the common good in the face of the actions of the Trump administration are nothing more than pseudo-intellectual cover for its cruelty.
In Verrem
I am not quite as deeply attached to the classical legal tradition as Professor Vermeule says he is. But I do agree that that tradition has things to teach us. These words, for instance, addressed by Rome’s finest advocate and foremost exponent of the natural law theory, to the man whose rule became the byword for bespredel before Donald Trump:
Must not he who thinks that all men ought to live under equal laws, be very hostile to you, when he considers the variety and caprice of your decrees? Must not he who grieves at the injuries of the allies and the distresses of the provinces be excited against you by the plundering of Asia, the harassing of Pamphylia, the miserable state and the agony of Sicily? Ought not he who desires the rights and the liberty of the Roman citizens to be held sacred among all men,—to be even more than an enemy to you, when here collects your scourgings, your executions, your crosses erected for the punishment of Roman citizens?
It is only left to add those who cheer on and justify caprice, plunder, and humiliation are no less deserving of hostility and opprobrium than those who command them and those who carry them out.