Monthly Archives: May 2010

American Caligulas

Alan Dershowitz

It is fundamental to a free society that its citizens be able to read the law and conform their conduct to it.

So says Alan Dershowitz, a Harvard law professor and famous lawyer, in his foreword to “Three Felonies a Day,” a new book by Harvey Silverglate. (Silverglate talks about his book at the Cato Institute in the clip below).

So this is yet another way in which simplicity, one of my recurring themes on The Hannibal Blog, is a prerequisite for freedom, another thread of mine. By contrast, complexity and vagueness, by entrapping citizens, can lead them into serfdom.

America’s founders, Dershowitz reminds us, used to say that a criminal statute had to be so clear and simple that it could be understood when read by a person “while running.” They believed that, if people struggle to understand what they are supposed to do or refrain from doing, society is no longer free in any meaningful sense of that term.

Caligula

The notorious Roman emperor Caligula also understood this, but had a different motivation. Cassius Dio (LIX, 28.8), tell us that

after enacting severe laws in regard to the taxes, he inscribed them in exceedingly small letters on a tablet which he then hung up in a high place, so that it should be read by as few as possible and that many through ignorance of what was bidden or forbidden should lay themselves liable to the penalties provided…

Another man who understood and used this insight is Lavrenti Beria, Stalin’s head of the KGB, who famously said

Show me the man and I’ll find you the crime.

The Road to American Serfdom

Is America today like Caligula’s Rome or Beria’s Soviet Union? No, at least not yet, and nobody is suggesting that it is.

But the fact that we need to spell this out should itself cause alarm. For this might be the road we’re on. (We already found that the Soviet Union during the Gulag was the only society with a higher incarceration rate than America today. This is not the sort of peer group that one wants to be compared to!)

The reason for worry is the increasing and extreme vagueness of America’s federal and state statutes. Sometimes, in addition to being vague, statutes also contradict other statutes, so that a law-abiding citizen in certain situations has no legal option to act at all! As Dershowitz writes:

The very possibility that citizens who believe they are law-abiding may, in the eyes of federal prosecutors, be committing three federal felonies each day … threatens the very foundation of our democracy…. when the executive branch, through its politically appointed prosecutors, has the power to criminalize ordinary conduct through accordion-like criminal statutes, the system of checks and balances breaks down…. [We are] … in danger of becoming a society in which prosecutors alone become judges, juries and executioners because the threat of high sentences makes it too costly for even innocent people to resist the prosecutorial pressure.

What he is referring to there is the trend among even innocent defendants today to plead guilty to “reduced” charges rather than risk a trial with draconian sentences in the event of conviction. Because that’s what American prosecutors are wont to do: to pile charges upon charges until the victim breaks down in fear, and tells prosecutors whatever they want to hear in return for a deal, so that the prosecutors can then go after another and more valuable target.

Silverglate, in his book, describes case after case of this so-called “laddering” by prosecutors. (Silverglate’s task is difficult because, by definition, the evidence is not so much in trial records but in the plea bargains that did not lead to trials.)

So let’s talk …

About American prosecutors

Unlike Beria or Caligula, they may genuinely believe that they are on the side of good rather than evil. (Technically, the congressmen who write the laws are the equivalents of Caligula; the prosecutors who manipulate the laws’ vagueness are the Berias.) As Dershowitz writes,

The men and women of zeal who use elastic criminal statutes to prosecute citizens who they believe are exploiting or endangering other citizens may in fact be doing God’s work, but they are not doing Jefferson’s work or Hamilton’s work or Madison‘s work or the work of the other founders of our secular nation and Constitution. They should leave to God (or public opinion) the punishment of immoral people who do not violate the explicit terms of criminal statutes.

America, of course, is unusual among liberal democracies in several respects:

  1. Its attorneys general are political appointments by the president. They have two distinct functions. One is to be loyal and trusted advisers to the president. The other, in theory, is to be impartial prosecutors. Other democracies split these two roles into two separate jobs. America does not.
  2. Being a prosecutor in America is very often merely a stepping stone toward higher office, such as senator or congressman or governor, so prosecutors must … win, win, win. (Remember Spitzer?) Never mind the “truth” or “justice”.
  3. At the state and county level, Americans often elect prosecutors and even judges. This is because they believe that democracy is always synonymous with freedom and refuse to examine this idea. In other democracies, prosecutors and judges are civil servants. In America, many of them campaign for re-election, raise money from voters, compete with each other to be “tough on crime” and so on.

As Dershowitz writes,

Our penchant for voting on everything has reached laughable proportions in Florida, where even “public defenders” must run for office. I can only imaging what the campaign must be like.

The result, of course, is a severe and growing threat to liberty. This is a non-partisan issue, neither of “the left” nor of “the right.” Americans (whether on FOX or MSNBC) must stop evoking “freedom” as a soundbite and political cudgel and start thinking about what it actually means and requires.

Watch Silverglate:


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Carthage’s urns of little bones

When future archeologists, two millennia hence, dig out our civilization — our bombing ranges or nuclear sites, for example — what will they infer about us? Inevitably, their values will be so different from ours that we will seem alien to them. So they will try to refrain from judgment and focus merely on understanding.

We’re in the same situation when we dig out the past. When we dug out Carthage, for example.

We know that the Carthaginians, like their Phoenician ancestors and apparently all Canaanites, sacrificed their first-born sons at times of crisis, apparently to appease gods like Baal and Tanit (roughly Zeus and Juno), Melqart, Astarte, et cetera.

We countenance the story of Abraham and Isaac (Sarah’s first-born though not Abraham’s) in the Bible, allegedly “our” book, largely because Yahweh withdrew his request to sacrifice Isaac at the last moment. But we might just as well contemplate how 1) Abraham had not, up to that point, considered the demand all that  unusual, and 2) how most other situations at the time would indeed have ended with the sacrifice.

We know that the sacrifices were common in Carthage, too, because we found the “tophets”, or furnaces, where the infants were killed. They contain charred, calcified bones of both animals and human children. For a while, we comforted ourselves with theories that they might have burnt stillborn or dead infants, that these were really burial grounds disguised as human-sacrifice altars. But most scholars now believe that they really did, on occasion, kill their own sons, right up to the time of Hannibal.

I just finished Richard Miles’ “Carthage Must Be Destroyed,” a new history of Carthage and a last-minute addition to my bibliography (almost certainly the last, because I’m essentially done).

Admittedly, those of you just getting into ancient history (perhaps through The Hannibal Blog?) might prefer to start with Rome or Greece, but if you’re interested in Carthage, this is as good a history as any. Well-written, not pompous, aimed at normal readers not fellow academics.

Miles deals elegantly with issues like the child sacrifice. He also unifies the entire history of Carthage — from its Phoenician (Tyrian) beginnings to its end in the Roman genocide.

It’s a good book.

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