Igni ferroque

Blogger Viviana A. Zelizer recently posted a piece on Huffingtonpost "Pricing a Child's Life". She asks the question of how to put a price on a child's life when determining compensation in civil actions. This is a very good post with a good historical information. I highly recomend it. Professor Zelizer rightly understands what motivates most Claimants: "Claimants ask for public recognition of their losses, fixation of responsibility for those losses, and enough damages to hurt the responsible parties. Payments for the love and a child's lost future seem just compensation". She also, understands that conservatives view this as "money grubbing". What she does not mention is that it is all about crime and punishment, and the justice that it brings.

The conservative View

The opposition to punitive damages is often led by conservatives. Conservatives value punishment when disscussing the law. Conservatives believe that punishment is a "deterrent". The exception being when said punishment may be metted out to one of their own (Scooter Libby ). When individuals, not of the rich elite, attempt to gain justice from a civil action against a large corporation, or member of the consevative elite, then conservatives claim that plantifs are "money grubbing".

Using conservative reasoning, it would seem that punishing (thru punitive damages) the enitiies for negligence with regards to 9/11 would serve as a deterent toward future negligence. Further, punitive damages applied to enitiies (typically corporations or government) would deter them from bad behavior. In general, for our government, this is not the case because the individuals responsible do not personally suffer. For corporations the individuals responsible (in practice), again, rarely suffer any penalties, or the penalties are insignificant with respect to the crime (Enron .,Robert Milken). In fact, for corporations, they routinely calculate any negative payouts when deciding if it is profitable to break the law. So what we have here is a lack of "personal responsiblity" .

Value of a Life? What is just?

What is a life worth? I believe that this is the wrong question to ask. The appropriate question is what is the monetary award that would dissgourge any gains made by the defendents, render defendents financially incapable of any recitivism, and compensate for any lost income and benefits of the plantifs. This is not a random or "money grubbing" concept. This is about the "public good". When corporations and government (and the individual decision makers therein) are not brought to justice then we have no civilization.

Clash of civilizations

The Bush administration often calls GWOT a clash of civilization against barbarisim. Aeschylus in the Orestia tells us that Athena brought civilization to the city of Athens by replacing private vengence with public justice. Punitive damages that help preserve the public good are part of public justice. What conservatives and the Bush administration advocate is a return to a feudal system where the noble does not answer to any but his peers and his betters. Justice for those of lower social standing is nonexistent. It is a world view of might makes right, where personal loyalties and conections are preeminent.

The issue of justice is also prime to the issue of why we are failing and will continue to fail in the middle-east. Aeschylus would have been familiar with the culture of the middle-east. It is tribal, it is about personal loyalties, personal honor, and private vengence. If we do not provide public justice to Iraq and Afghanistan, then we will never be able to bring any kind of civilization to those regions. Why was the Taliban successful? What is the appeal of Sharia law ? The answer is that they bring a form of public justice to a tribal society. We may dissaggree with the form of public justice, but we do not provide an alternative.

Because there is not central authority controling the violence in Iraq and Afghanistan, we see it as chaotic. We look to external and internal causes like Al-Qieda, or Iran for the violence, but what we have failed to see is that Abu Gharib, Guantanomo Bay, and contractor malfeasence has shown the people of Iraq and Afghanistan that we will not provide public justice. Therefore, all these people have left is the tribe. All we leave them is private vengence.

What the current 9/11 civil action says to the world is that the conservative ideology does not provide equal protection under the law, nor does it provide public justice. Instead it is a return to public justice for the privileged.

Freemarket is not justice

What the conservatives have never understood and will never understand is that what we see in Iraq and Afghanistan is not unique. At the end of the last "Gilded Age", Marxism arose as an alternative to "freemarket" capitalism. Eventually, what people found was that neither extreme worked well. What did work well was a regulated market system. One that balanced workers rights with employer's bussiness needs. A system that protected public goods like air, water, energy, food, communications. and transport. This system worked because it provided public justice at all levels. It had mechanisms that allowed recourse against those in positions of power that stepped outside the law. It protected those who blew the whistle on those in power when protecting the public good. It was not perfect, but a work in progress. People believed that the system was attempting to protect all of us. Today, we have allowed this system to be gutted at all levels. At some point in time, there will be a backlash.

The genius of the American system is that the Constitution provides for a bloodless change of power in the form of elections. However, the integrity of our elections has come into question. If this system is completely discredited then we may find that people will seek private vengence to fill the vacuum left when there is no public justice.

Nature of Power

Sun Tzu likened power to water. One may hold water in your cupped hands, but even then the water slowly leaks between you fingers. So it is with power. One can never hold absolute power for long. The harder one tries the more power slips from your grasp. If a ruler is not just, then he will not be able to lead the people in a time of conflict.

Conclusion

While the 9/11 civil action will not decisively move us from civilization back to barbarism, the verdict rendered and upheld upon appeals will indicate which way we are traveling. Justice is not only about crime and punishment, but a requisite foundation of our civilization.