Legally Right -- Mortally Wrong and Morally Bankrupt. The Injustice Endures

After what seem like endless and quite deliberate delays regarding "investigating" the death of Tamir Rice, Tim McGinty has released two reports which justify the shooting and death of young Tamir on the basis of law and court decisions which essentially protect police officers from criminal liability when they kill ("use deadly force") in performance of their duties.

As long as officers declare themselves to have perceived a threat -- even if there isn't one -- and that perception can be considered "reasonable", they're essentially immune from criminal liability for almost any death or injury they cause in the course of performing their duties.

In the case of Tamir Rice, the reports claim that the officers involved reasonably perceived a mortal threat to themselves when young Rice approached Officer Loemann and reached for his waistband thus justifying the immediate use of lethal force.

The perception of a mortal threat -- even though objectively there wasn't one -- had to do with the dispatch reports of "a black male with a gun" in a park outside a community center.

Here's what's wrong with that analysis:

The perception is based on faulty metrics. The fear the officers felt was due not to any objective threat to themselves or anyone else but due -- entirely in my estimation -- to the fact they were told by dispatch that there was a black male with a gun. A black male with a gun. A BLACK MALE WITH A GUN.

That, all by itself, is considered an existential threat to police and civilians in open carry Ohio.

Not only was Tamir Rice shot and killed -- on sight -- by Ohio police because he was said by a 911 caller to be armed and "brandishing," so was John Crawford III, even though neither of them were actually armed (in the sense of having a weapon with which they could do lethal harm to another) and neither, at the time he was shot and killed, was "brandishing".

All it takes is for someone to say the right words for the executioners to act.

The problem here [8 pg pdf] is police training and Supreme Court rulings that protect the officers who use deadly force even though there may be no objective threat to be neutralized.

Because officers cannot be expected to read the minds of individuals and determine intent, they are instead trained to scrutinized individuals’ behavior for telltale signs. An individual’s actions are often the only signals of their intent. Obviously, if the individual being confronted is reasonably believed to be armed, the officer’s attention to those actions will be intensified. In such a situation, officers are taught to focus on the hands of the individual.3 If the hands move in the direction of a “high-risk area” – an area where a weapon may be concealed, such as inside a jacket, towards the waistband of pants, or under the seat of a car, well trained officers will immediately identify this as a serious threat.

When threat identification is combined with the concept of action versus reaction, an officer’s need to make split-second judgments with respect to the use of force becomes evident. Action versus reaction is simply the recognition that there is a certain amount of time required for every person to recognize a stimulus, formulate a response to that stimulus, and then carry out that response. When applied to deadly force situations, action versus reaction refers to the time it takes for an officer to observe the actions of an individual, such as the movement of an individual’s hands, perceive those actions as threatening, calculate possible responses to the treat, determine what level of force is necessary, and then complete the reaction. The reactions of a well-trained officer may be quick, but they are not instantaneous. The time differential between a threatening action occurring and the ability to respond to that threat always puts law enforcement officers in the position of having to catch-up. The practical effect of action versus reaction in deadly force situations is that officers cannot wait to react until they are absolutely certain of an individual’s malicious intent. If an officer waits to be certain that the individual reaching into a high-risk area is retrieving a weapon, action versus reaction dictates that the weapon could easily be used against the officer before he or she has an opportunity to respond.

This is the root of the problem right here. The passage was written by a former FBI trainer now retired, someone whose wisdom, if you want to call it that, has formed the basis for police training with regard to 'threats' and their 'neutralization' for decades. The principle is that perception rules all, and instant action in the face of a perceived 'threat' -- whether there is really a threat to the officer or someone else -- is drilled into the officer over and over, without regard to either the necessity of using lethal force in the first place or to the consequences of the use of lethal force on the victim.

Naturally, under the circumstances, many, many innocent people and people in one kind of crisis or another and many people who are only tangentially 'threats' will be injured and killed. And their injuries and killings will be justified by the likes of this person, for the simple reason that the law allows and protects it and the officer's perceptions of a threat -- perceptions which have been drilled in over and over again -- are all that is necessary to justify a killing or injury by police.

I've long held that 90% or more of police homicides are unnecessary. If there were a different standard of police conduct and a different way of seeing situations (ie: not all hands to waistbands are reaching for a gun; indeed very few are. And even if they were, why should that be a death sentence to be performed by summary execution on the spot? Whatever happened to "due process?") there would be little or no necessity to use lethal force in the first place. If police were trained to see each situation independently (ie: a hand to waistband doesn't necessarily mean a gun will be pulled from said waistband) and not react to each situation as if a deadly threat were present, the number of police homicides could be cut immediately and substantially. If police were trained to be skeptical of dispatch reports based on 911 calls, the number of police homicides could be cut substantially and very quickly. If police were trained to actually assess a situation before going into it guns blazing, the number of police homicides could be cut substantially. If police commanders and chiefs said to their officers that inappropriate use of firearms will result in discipline up to and including termination, the number of police homicides could be cut substantially.

I could go on. The issue is that police are not expected to value any lives but their own, and even then, their self-valuation may be very low. They need to learn to value human life in general, and specifically to value the lives of those who have previously been determined to be disposable.

That day seems always to be far off, but somehow I know it is coming.

These reports that are being cited to justify the police murder of Tamir Rice are shameful, but they represent the state of police belief and practice as it is.

We must change it.

Formalism and Legalism and Post-Modernism

Niel Clements, "Built. Lacking " (2009)

Speaking of the Rectification of Names -- which I do from time to time -- and the continuing redefinition of the most basic terms to suit whatever political agenda one (or one's group) may have, I should say something about Formalism and Legalism, both of which seem to be heavily relied on in our Post-Modern political systems as rationales for belief, foundations for ideologies, and excuses for both action and inaction.

Formalism is more of an arts reform movement than a political philosophy, but its basic tenets are just as appropriate to politics as to the arts. The main idea of Formalism is that the form (or structure) of the work is more important than the content. A variation asserts that the process is more important than the product -- or outcome.

Legalism is a doctrine found in theology and Chinese political philosophy that asserts that law and the rule of law are the fundamental factors in salvation and the proper governance of the state.

These are very simple concepts that somehow I thought everybody knew and understood -- regardless of the origins of the terms -- and apparently I was wrong. Not for the first time, either.

Another term I throw in the mix a lot is "Post-Modern" because I see it as the current social and political fashion.

Post-Modernism -- as I use the term -- refers to the tendency to regard all reality as relative and subject to interpretation according to political ideology and/or agenda. This should make both Formalism and Legalism near ideological impossibilities, because there is no "truth," thus there is no "law," and all "form" and "process" are nothing but interpretations of actions and outcomes that are subject to dispute. And yet time and again, Formalism and Legalism are at the foundations of Post-Modern descriptions and interpretations of events and results.

Both Formalism and Legalism are vital parts of the Post-Modern world-view because they can be subjected to infinite interpretations based entirely on one's own perspective -- political, religious, or what have you.

If you believe that what you do is not as important as how you do it, or that the product of action matters less than the action itself, you are living a deeply Post-Modern version of "what matters most."

If you believe that the Law and the Rule of Law (that is, the observance of Law regardless of its content) is more important than justice, or that the enactment and observance of Law is by definition justice, and that you personally (or someone) have the power and authority to interpret Law to produce Justice, you are living a deeply Post-Modern version of "rule by the scholars."

With neither facts nor truth but only form/structure and rule/process by which to understand society and politics, one is left flailing for substance and sanity, because there isn't any in the Post-Modern Formalist and Legalist world view. One frets continually over the least important matters, one argues endlessly over the meaning of "meaning," and one is paralyzed by indifference, since nothing actually matters in any case.

One constantly seeks heroes to correct the perceived imbalances, to restore proper governance, to adhere to the imprecise and incomprehensible rules of the Law and the Prophets, to interpret for the rest of us what is and what should be, to define and dispense justice, and of course to reveal the Face of God.

And when no heroes are forthcoming, one despairs, one rages, and in a frenzy of anger, one continually repeats one's actions in the hopes of one day producing the results one seeks, heroes and all.

It doesn't work. It doesn't work any more than Chicago School Economics work to produce "something better" -- unless you accept the notion that everything is abstraction, nothing is real, and "better" is simply relative to someone else's "worse."

We live in those interesting times we were warned about.

Getting out in front of the issues

It's long mystified me why the remnant "left" in this country is constitutionally unable to get in front of issues small and large and lead into that new day dawning that used to be so important.

Instead, the "left" constantly reacts to rightist garbage, desperately trying to hang on to the shreds and tatters of a status quo the rightists are only too happy to yank out of their hands.

This has been going on for years and years, decades now, and it is really bewildering.

It's not for lack of ideas. Why just the other day, the New America Foundation came out with a neat little proposal to double Social Security payments to help get the economy "moving" again. Well, there's an idea. Gee. The only problem with it is that the deficit scolds have long since been banging the gong about cutting Social Security to the point where doing so is all but inevitable.

The idea of increasing Social Security payments should have been broached the instant the economy turned sour. I think I did at the time suggest that low-end Social Security payments be doubled or tripled for just that economic purpose. Not only that, but I thought the eligibility age should be reduced to 55 so as to free up jobs for younger workers. I also suggested that because households were drowning in debt, instead of paying off the banks' gambling debts (the Fed just held out the promise of another round of payouts to the banks), payments -- large payments ($80,000 was a figure I remember mentioning) -- should be made directly to households to clear debt or for the purchase of particularly important goods and services (like green-fitting homes and such) in order to goose the economy.

Robert Reich has been advocating a "payroll tax holiday" for quite a while, and the other day he added a nuance: cancel payroll taxes on the first $20,000 of income, and pay for it with an additional payroll tax on those making more than $250,000. This is good.

But we are years into this Endless Recession, and the policies out of Washington have been like Hoover's policies dealing with the Depression. They really haven't helped any but the banks and the upper one percent. They've been devastating for the middle and working class, by design.

Why the so-called "left" isn't out in front of economic issues is bewildering. In fact, Democratic Party economic policy is as Hooverite as that of the White House, and commentators on the so-called "left" are at best ambivalent about what to do -- typified by Paul Krugman's fretting about this and that.

Why aren't self-styled progressives out in front of the war issues? Not just saying "no" but saying what would be the better policy.

We could go on and on.

In the United States what passes for the "left" is reactionary, depending on the rightists for issues to respond to. The "left" is desperately clinging to shreds of the status quo for dear life, rather than coming up with a vibrant new vision for the future.

As I pointed out earlier regarding the mosque issue, the appropriate position on it is "No," not because it is Muslim, but because it is religious -- and we don't need more religion, there or anywhere else. Religion and religious fervor is part of the problem. But putting it that way is getting in front of the issue, and that would be... rude.

Let's be clear: our government is rightist through and through. One party is insane, the other is its enabler. Neither has any interest in serving the People. The People are passive in the face of these facts in part because they see no sign at all that anyone able to lead is interested in leading toward correct solutions. Many apparently thought Obama would be the one and have been sorely disappointed. But surely they know that putting the bloodthirsty plunderers back in charge for another round of looting and disaster is not a good idea.

But that's the political alternative to the disappointment so many feel. Madmen or their enablers.

If we on the "left" could actually get out in front of issues, present a coherent framework for positive change and follow through, what a wonderful world this would be. But no.

Can't do that.

Sad.

Blood In The Water

How about a little change of pace?

From Legally Blonde, The Musical

So Here's What Has to Happen -- and of course it won't

Protests in Washington DC at the first G W Bush inaugural -- that most Americans still have no idea happened at all -- on January 20, 2001. 

The Department of Justice must be abolished. The Federal Courts must be shut down. The Supreme Court must be reformed and the radical justices must be removed.

Of course it can't happen and it won't happen because no authority will take on the responsibility for doing it. The Congress is a joke, and the Executive has Other Priorities. The People have no direct power -- that they're willing to use -- at all.

Throughout the years since the Supreme Court lawlessly cancelled the 2000 election vote count and awarded the Presidency to George W. Bush, the very concept of the Rule of Law has come undone. It's simply meaningless. And the the fact that the vast majority of the DoJ's legal staff stays on the job no matter what, and the courts continue to follow the lead of a lawless and dangerous Supreme Court, and the Congress tries to come up with even more outrageous lawlessness, and the White House doesn't care and is generally disinterested in the whole mess makes a mockery of "justice" in this country.

Of course the DoJ could be shut down tomorrow if the legal staff walked out. They won't do it, but that would shut it down. If the SCOTUS minority simply refused to participate in any more rulings by that body and requested that, say, the Congress initiate impeachment proceedings -- for the entire Court -- there would be some notice taken.

If the either of those things happened, the Federal Courts could not function. And if all of it happened at once, perhaps the public would notice that the entire federal justice system has become so corrupted and politicized in this country that it shouldn't be allowed to function any longer.

It deserves to be shut down and regenerated/reformed from the ground up.

Which is why it will never happen barring Revolution that overthrows the entire rotten bunch of criminals who rule from behind the gates of their Palace on the Potomac.

Instead of what should be done, we will be treated to more endless arguments over more endless years, arguments over legal minutiae and parsing, we'll see ever more corrupt investigations and prosecutions, more authoritarianism, more autocracy, more torture, more excuses, and more dithering by the representatives of the People in Congress assembled, more outrageous and lawless rulings from the bench, more tired ennui from the legal profession, more careerism, more failure.

This path was laid out when protest against the lawlessness of the Supreme Court's rendering on December 12, 2000, was allowed to fade away and the ruling was widely accepted.

We know what's happened since, in the Name of the Law, and it ain't pretty.

Scott Horton has been chewing this cud for quite a while and his ruminations over the OPR report on the Torture Memos is worth a gander. But like too many others with a JD and a platform in this country, he is resigned to accept this outcome as just another sorry example of Things Gone Awry. Nothing to be done about it now. Pity.

Sigh.

Where are the Lawyers?

In Pakistan, when the government goes off the legal/lawful rails and into the ditch of arbitrary authority, the lawyers rise up, take to the streets, and demand redress, resignations, and restitution.

Not here. No way. A lawyer doing more than filing a suit or a brief? Unheard of! The very idea. Pshaw.

On Friday, the Justice (so-called) Department released the long-delayed OPR report on the malfeasance of John Yoo and James Bybee in preparing the notorious Torture Memos for use by the Bush Administration in coercing information and confessions from captives held in various places throughout our Nation's growing constellation of concentration camps and gulags for Taliban and Al Qaeda and miscellaneous resistance suspects.

The American legal profession demonstrated a signal lack of courage and leadership all through the depredations of the Bush years, and it continues to essentially stand aside as the Obama administration expands on the lawlessness of the Busheviks. The failure of the legal profession to raise its collective voice against the lawlessness that has been the widening American practice at home and abroad will be remembered as not just a failure of courage, but perhaps as the leading factor in the transformation of the American state from a faulty and balky self-governing Constitutional Republic into a thoroughgoing Imperial autocracy.

Some individual lawyers have certainly been both rebellious and courageous in opposition to the Bush regime and its factotums intent on establishing and institutionalizing an Imperial state based on domestic and international surveillance, lawless and arbitrary detention of those deemed to be Enemies of the State, and the projection of force -- through terror, random carnage, and torture -- throughout the world. Individual attorneys continue to stand up, some at considerable risk to themselves, but as a collective, the bar and bench, the legal profession as a whole, has been all but silent, when not actively complicit.

And it has been devastating for the Rule of Law and respect for the Rule of Law in this country and around the world.

This silence and complicity is a lasting stain on the American legal profession. And yet, even now, they evince no shame.

We are well and truly fucked.

The OPR Report

Over at Sully's Place at the Atlantic, the following is quoted from page 144 of the Report:

"I just hope that when all of this comes out, the institution doesn't take the hit, but rather the hit is taken by those individuals who occupied positions at OLC and OAG and were too weak to stand up for the principles that undergird the rest of this great institution," - Deputy AG Jim Comey, in an email to Chuck Rosenberg, p. 144 in the OPR Report.

Yes, well, Mister Comey, the institution has taken the hit, continues to take the hit, and will be subject to the contempt it has so richly earned so long as fundamental reform, from the ground up, is avoided. Not only has the institution of the Department of Justice been potentially irreparably harmed by the refusal of its leaders and staff to resist the imposition of this lawless regime, the entire legal profession has been soiled.

A fine mess.

And as if that weren't enough, the "Justice" Department also announces the official closing of the Anthrax Investigation, with the suicided Bruce Ivins as the only suspect.

Ain't we got fun.

Please enjoy Marcy Wheeler's deconstructions:

The OPR: http://emptywheel.firedoglake.com/2010/02/19/opr-report-working-thread/

The Anthrax: http://emptywheel.firedoglake.com/2010/02/19/doj-anthrax-report-working-thread/

Formalism and Legalism versus Justice and Sir Thomas More

I ended yesterday's post on this note:

[Note: I would ask those who use the "Giving the Devil the Benefit of the Law" scene in "A Man for All Seasons" as justification for putting terrorism suspects in Federal Court whether they believe Justice was done in the trial of Sir Thomas More. If so, how? And if not, why not? It is the fundamental issue here. And it is, perhaps, what the theme of this whole blog has been.]

The point being, of course, that Sir (later Saint) Thomas More had all the advantages of Law and extensive Due Process as it was conceived at the time, and many, many, many opportunities to recant, confess, sign, -- to do his liege lord's bidding, in other words. And he refused. Adamantly. He refused on the basis of Law, he refused on the basis of Custom, he refused on the basis of Honor, he refused on the basis of Process, he refused on the basis of Conscience and Higher Law, he refused on the basis of the Rights and Privileges of an Englishman, a Gentleman, and on and on.

Yet all the forms of the Court were followed, perhaps too exactly, and all the legal niceties were observed, and Sir Thomas was beheaded at the Tower for his trouble, and the trouble he had given the King. The charge was High Treason; the crime was Sir Thomas's failure to obey.

And I asked, "Was Justice done?"

Perhaps the answer is another question: "For whom?"

The King had a desire, and under the circumstances, a necessity to assert his power and authority over his subjects especially with regard to marriage (his own) and the succession to the Crown. In doing so, he broke with the long-held British royal custom of submission to Papal authority in matters spiritual as well as temporal. In doing that, he violated both custom and law; by his command, law was brought into conformity with his desire. Sir Thomas's refusal to submit to this King's law was the source of the charge of High Treason, which ultimately resulted in his trial and execution. This rid the realm of one dissenter from the rule and authority of the King to assert his power over God's Law -- as it was understood at the time -- but there would be more, oh so many more, and in due time, there would come a Civil War in Britain over such matters as the authority of the Crown over the lives and religion of its subjects, among other things.

Was Justice done in Sir Thomas's case?

If you believe that following the forms and the due processes of the Law is the definition of Justice, then Justice was done. Even if the outcome was wrong in some higher sense, Sir Thomas was not subjected to the arbitrary authority of a lawless monarch.

If you believe that Justice is to be found in the actions taken to fulfill the requirements of the Rules of the Game, in other words, then you cannot but agree that Justice was indeed done in the case of Sir Thomas More.

That was certainly King Henry's belief, sorry as he was about the outcome and all that.

But Sir Thomas was arrested, held and tried on trumped up charges and he was convicted on false witness. Surely that cannot be Justice even to a formalist and legalist for whom all things boil down to following correct procedure and applying the law as it is written and received. But if the charges are trumped up and the witness is false, how is the Law to know that? How is a follower of Legalism and Formalism to know that? And if there is no such knowledge, how can there be injustice when the forms of the law and the rules of procedure are followed?

We know now that the charges were trumped up and the witness was false, and so we can say now that perhaps there was some injustice done in the case of Sir Thomas More, but was it known at the time? And if it was, who knew? Did the Court know? If the Court did not know, then wasn't the judgment of the Court correct according to both Law and Procedure, and wasn't the sentence just under the law at the time?

And yes, Sir Thomas lost his head, but there is nothing to be done about that now, and besides, the Church later canonized him, so he got a kind of comeuppance -- if not exactly Justice -- in the end anyway, didn't he?

Sir Thomas wrote about Justice in his Utopia, and as we consider the differences between formalism and legalism on the one hand, and Justice on the other, we might do well to consider Sir Thomas's own thoughts on the matter.

From Utopia: [A long excerpt]

They have but few laws, and such is their constitution that they need not many. They very much condemn other nations, whose laws, together with the commentaries on them, swell up to so many volumes; for they think it an unreasonable thing to oblige men to obey a body of laws that are both of such a bulk and so dark as not to be read and understood by every one of the subjects.


They have no lawyers among them, for they consider them as a sort of people whose profession it is to disguise matters and to wrest the laws; and therefore they think it is much better that every man should plead his own cause, and trust it to the judge, as in other places the client trusts it to a counsellor. By this means they both cut off many delays, and find out truth more certainly: for after the parties have laid open the merits of the cause, without those artifices which lawyers are apt to suggest, the judge examines the whole matter, and supports the simplicity of such well-meaning persons, whom otherwise crafty men would be sure to run down: and thus they avoid those evils which appear very remarkably among all those nations that labor under a vast load of laws. Every one of them is skilled in their law, for as it is a very short study, so the plainest meaning of which words are capable is always the sense of their laws. And they argue thus: all laws are promulgated for this end, that every man may know his duty; and therefore the plainest and most obvious sense of the words is that which ought to be put upon them; since a more refined exposition cannot be easily comprehended, and would only serve to make the laws become useless to the greater part of mankind, and especially to those who need most the direction of them: for it is all one, not to make a law at all, or to couch it in such terms that without a quick apprehension, and much study, a man cannot find out the true meaning of it; since the generality of mankind are both so dull and so much employed in their several trades that they have neither the leisure nor the capacity requisite for such an inquiry.


Some of their neighbors, who are masters of their own liberties, having long ago, by the assistance of the Utopians, shaken off the yoke of tyranny, and being much taken with those virtues which they observe among them, have come to desire that they would send magistrates to govern them; some changing them every year, and others every five years. At the end of their government they bring them back to Utopia, with great expressions of honor and esteem, and carry away others to govern in their stead. In this they seem to have fallen upon a very good expedient for their own happiness and safety; for since the good or ill condition of a nation depends so much upon their magistrates, they could not have made a better choice than by pitching on men whom no advantages can bias; for wealth is of no use to them, since they must so soon go back to their own country; and they being strangers among them, are not engaged in any of their heats or animosities; and it is certain that when public judicatories are swayed, either by avarice or partial affections, there must follow a dissolution of justice, the chief sinew of society.


The Utopians call those nations that come and ask magistrates from them, neighbors; but those to whom they have been of more particular service, friends. And as all other nations are perpetually either making leagues or breaking them, they never enter into an alliance with any State. They think leagues are useless things, and believe that if the common ties of humanity do not knit men together, the faith of promises will have no great effect; and they are the more confirmed in this by what they see among the nations round about them, who are no strict observers of leagues and treaties. We know how religiously they are observed in Europe, more particularly where the Christian doctrine is received, among whom they are sacred and inviolable; which is partly owing to the justice and goodness of the princes themselves, and partly to the reverence they pay to the popes; who as they are most religious observers of their own promises, so they exhort all other princes to perform theirs; and when fainter methods do not prevail, they compel them to it by the severity of the pastoral censure, and think that it would be the most indecent thing possible if men who are particularly distinguished by the title of the "faithful" should not religiously keep the faith of their treaties. But in that newfound world, which is not more distant from us in situation than the people are in their manners and course of life, there is no trusting to leagues, even though they were made with all the pomp of the most sacred ceremonies; on the contrary, they are on this account the sooner broken, some slight pretence being found in the words of the treaties, which are purposely couched in such ambiguous terms that they can never be so strictly bound but they will always find some loophole to escape at; and thus they break both their leagues and their faith. And this is done with such impudence, that those very men who value themselves on having suggested these expedients to their princes, would with a haughty scorn declaim against such craft, or, to speak plainer, such fraud and deceit, if they found private men make use of it in their bargains, and would readily say that they deserved to be hanged.


By this means it is, that all sorts of justice passes in the world for a low-spirited and vulgar virtue, far below the dignity of royal greatness. Or at least, there are set up two sorts of justice; the one is mean, and creeps on the ground, and therefore becomes none but the lower part of mankind, and so must be kept in severely by many restraints that it may not break out beyond the bounds that are set to it. The other is the peculiar virtue of princes, which as it is more majestic than that which becomes the rabble, so takes a freer compass; and thus lawful and unlawful are only measured by pleasure and interest. These practices of the princes that lie about Utopia, who make so little account of their faith, seem to be the reasons that determine them to engage in no confederacies; perhaps they would change their mind if they lived among us; but yet though treaties were more religiously observed, they would still dislike the custom of making them; since the world has taken up a false maxim upon it, as if there were no tie of nature uniting one nation to another, only separated perhaps by a mountain or a river, and that all were born in a state of hostility, and so might lawfully do all that mischief to their neighbors against which there is no provision made by treaties; and that when treaties are made, they do not cut off the enmity, or restrain the license of preying upon each other, if by the unskilfulness of wording them there are not effectual provisos made against them. They, on the other hand, judge that no man is to be esteemed our enemy that has never injured us; and that the partnership of the human nature is instead of a league. And that kindness and good-nature unite men more effectually and with greater strength than any agreements whatsoever; since thereby the engagements of men's hearts become stronger than the bond and obligation of words.

One cannot read Sir Thomas's considerations of Justice in his Utopia without recognizing that he is condemning both Legalism and Formalism as means to achieve Justice, and that our own Founders were more than a little influenced by Sir Thomas's vision of what the Law -- and what Justice -- should be in an ideal state and society.

But still the question remains, was Justice done in the trial and execution of Sir Thomas More? If so, how? If not, why not?