Blogs have been buzzing for the past week about Yedioth Ahronth’s report on Richard Goldstone’s actions as an apartheid-era South African judge. He sentenced at least 28 black men to death (though not all of them were executed, as their sentences had not been carried out by 1995, when the death penalty was abolished in South Africa). He sentenced 4 blacks to a whipping, and 2 young black men for possessing a video of Nelson Mandela (though what the sentence was is unclear to me). Predictably, many have seized on this report to discredit Goldstone and the Goldstone Report while others have criticized those criticisms, arguing that the Goldstone Report should be debated on its own merits rather than the intentions and professional histories of its authors. Peter Mellgard, of the FPA Current Conflicts blog, for one, notes Israel’s relationship with apartheid-era South Africa and asserts that Israeli officials now critical of Goldstone’s actions “might also take a look back at their own relationship with the South African regime.” I suspect one of my other FPA blogger colleagues might have a different take on it.
One aspect of the debate jumps out at me. Goldstone’s response to the report was this:
In response to sections of the study presented to him, Goldstone said that he has always been opposed to the death penalty, but because was acting within a legal system in which the death penalty exists, his hands were tied. He also claimed that he was obligated to honor the laws of the country, even under Apartheid rule, and could not find enough mitigating evidence to spare the defendants from execution.
Goldstone claimed that he never discriminated against black defendants and acted to the best of his abilities to act fairly, though he was sometimes morally opposed to the laws he was upholding. He noted that he was equally committed to maintain equality and to uphold the law, two principles that often clashed.
Alan Dershowitz’s response to Goldstone’s response was this:
Now that his dirty secret has been exposed to the world, he has invoked the defense raised by German judges at Nuremberg: “I was just following the law.” This cowardly defense was rejected at Nuremberg and by the international law that Goldstone claimed to be applying against Israel in the Goldstone Report. It should be resoundingly rejected by the court of public opinion.
But where exactly is the moral line for a judge? I recall this episode from the life of Oliver Wendell Holmes:
After having lunch with Judge Learned Hand, Holmes entered his carriage to be driven away. As he left, Judge Hand’s parting salute was:
“Do justice, sir, do justice.”
Holmes ordered the carriage stopped.
“That is not my job,” Holmes said to Judge Hand. “It is my job to apply the law.”
And yet, to draw on another quote from Holmes:
The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics…
So a judge must strike a peculiar balance between the law, his own morality, and that of the country and world in which he lives. There’s more complexity in there than Dershowitz’s criticisms suggest.
