There is a difference between how we measure the absolute power of the law, how we evaluate what is right and proper and how we agree on what is necessary. The standard of measure of the rule of law is the ruler.
The question for today is whether punishment is necessary, not so much whether it is right and proper. If we hold the rulers accountable for the law then we shouldn't have to be punished for its being broken, but if we aided and abetted the breakage by consenting or allowing it to continue then we should be punished too.
A law has to be enforced to remain a law. When we let our laws be violated and downgraded to rules and deregulated regulations they cease to be laws. If corporations are people BP needs to join Bush, Cheney Rumsfeld and Bernie Madoff in serving a sentence longer than it takes to clean up the oil and forgive the torture of all those people who were affected.
Originally I wrote this in response to the idea that the Bush administration had carried torture to the extreme of experiments on humans, and has yet to be called to account for it.
I think it applies also to the idea that corporations like BP can torture our environment for something as inconsequential as more money and they have yet to be called to account for that either.
Which is worse torturing people to death or torturing to death the only planet humans know of that supports life?
During the Bush administration the idea that torture was something unthinkable was downgraded to where avoiding its use would be good except that its too politically inconvenient right now.
During the Bush administration there was a change in our perception of the balance of the scales of justice between what was right and proper and what was necessary. Corporations were loosed on the world in a way that makes Biblical standards of evil look unimaginative.
It was perceived that the end times were upon us and that our survival as a nation was dependant on things like oil; both our economic interests and our national interests would go down the tubes if we didn't do what was necessary regardless of right and wrong let alone what was morally right, just or proper.
I think thats the point where we broke the stone the rule of law was carved on.
In our constitution We the People are the ruler and our rules are established by our representation in a Congress. As with the recent ruling by the SCOTUS corporations were coming to be seen as people too. The important people, the big men.
We now punish people who are powerless and reward those who represent the haves and have mores.
Ordinary people, influenced by their cultures and religions tend to think in terms of what is right and proper or what is just. Rulers, and their Congresses, influenced by more pragmatic economic concerns, tend to think in terms of what is necessary.
Clearly it is necessary not to be poor and at the mercy of the law, but beyond that "do as thou wilt shall be the whole of the law" as a guiding principle was established a decade ago by our SCOTUS with Bush vs Gore.
Misguided government officials began to see the doing of things that were wrong as a sign of their strength of will to do what was necessary.
To understand how we came to this imbalance go back and look at where our laws came from in the first place and see where and how it came to be that the ability of church and state to enforce punishment is something that enough lawyers, guns, and money can now insulate the rich and powerful from completely.
We have enshrined as Article I Section 8 the necessary and proper clause that gives Congress the power
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof
Essentially thats intended to balance the concerns of Church and State and of We the People and our monied interests. Monied interests are now the man.
Going back to the first civilisations the ruler, in Sumerian lugal (lu= man, gal = big) the big man decided what was legal.
The ruler measured out the land and gave it to his vassals in return for service. The land provided subsistance so in effect the king had the power of life and death over his subjects.
Monied interests have replaced the kings as big men.
The change occured when money and commerce first entered the picture. The idea of fairness or justice found no place in the balance. Particularly with regard to inheritances people had wanted to be able to pass on to their wives and children whatever had worked for them but monied interests made vassalage something that could be bought and sold.
Anciently rulers that measured, weighed and judged the law were carved in stone and presented to kings as symbols of their power.
The king made the rules but the priests of the temple administered them acting as both scribes and judges. They said what was right and proper.
The king had the status of a priest but as the Temples of the gods were the center of all learning, just as with a modern university law school the king was advised on how to make the rules.
Raw power began to be tempered by wise competent and efficient administration and that was a good thing but then the preparation of the best and brightest as an elite and then as a monied hereditary elite that could afford to go to the right schools and network with the right people replaced the requirement to actually be wise.
Anciently the priests of Mesopotamia and of Egypt would carve the image of a god in stone, put the stone in an ark and house the ark in a sanctuary
so that people could go to the sanctuary to worship the gods. What that has become in modern times is our university system on the one hand and our prison system on the other.
Kings had the ability to decide what was necessary and sufficient and to break all the rules to preserve law and order in times of crisis, but there was something to the idea that if everything started going wrong due to his incompetancy the king had lost his legitimacy and violated the rule of heaven and the gods at the sanctuary would reveal this with omens and portents.
We might compare incompetent Bush with Katrina and competent Obama with BP; Bush mindlessly caving in to Cheney and Rumsfeld's alleged expertise and giving us a decade of torture, Obama torturing us by not understanding the incompetance of his own experts and of industry's attempts to always do the cheapest least likly to suceed solution first.
There needs to be a better standard of performance than the acquisition of money and power.
In the middle bronze age after getting tired of the annual floods wiping away all the boundary markers some of the big mans's priestly advisors decided that a standard of measure could be established by
the temples and carved in stone so that it wouldn't be lost and people could come there to get help regaining the necessary allotment of land on which their subsistance and service depended.
By extension all of the disputes that arose over the rules were carved in stone as laws, both what was right and proper and what was necessary and sufficient.
People made a covenant to be law abiding and then in return it was decided that if there was a problem you didn't need to punish the whole tribe, just the outlaws.
Sometime after Hammurappi carved the laws of Babylon in stone, Moses carved the ten commandments in stone, put the stone in an ark and put the ark in a sanctuary in the Egyptian manner.
The idea that there were both a common law, or general idea of what was right and proper that had been established in common usage and precedent and the kings law established by the power of the ruler were now combined in the ruler symbolizing the written law that was now ordered to be carved in stone by the king and his priestly administrators
Once the priests had control of the standard they realized that by taking the law as a god and making it supreme over all the other gods including the personification of the gods maintained in the divine rights of kings, the law itself might have more power than the king.
The religious law retained its control until a new rival appeared in the form of science. Scientific Law was able to challenge the thou shalt have no gods before me doctrine.
To show that torture was wrong neither the argument that it wasn't right nor the argument that it wasn't necessary sufficed; only the argument that it didn't work.
Thus we get the battle between and separation of church and state, or between the morality of what is right and proper and the pragmatism of what is necessary tempered by the science of what actually works.
From time to time kings have overstepped their bounds and the absolute power of the divine rights of kings has been forced to take as consort the wisdom of the law as properly overseen by competent administrators or judges.
Bottom line we now know the torture of people and the deepwater drilling of the oceans doesn't work, isn't necessary and won't be considered right or proper under any circumstances in the future, but we are left with the question of punishment for those who went astray.
Personally I'd be all for getting medieval on their ass to drive the point home but all that really needs to happen is we let the law do its job and quit trying to argue that some people are above the law