On May 19, 2011, President Obama, implored Middle East countries to follow the west with US in the lead, in pursuing democracy, rule of law and justice:
“The United States … support a set of universal rights. Those rights include free speech; the freedom of peaceful assembly; freedom of religion; equality for men and women under the rule of law; and the right to choose your own leaders - whether you live in Baghdad or Damascus; Sanaa or Tehran. And finally....”
As a world citizen, I applaud the President in promoting “universal” human rights (and humanity?).
As a public intellectual, I have questions about US concept of “rights” as being necessarily “universal” in theory or as applied.. (See my comments: “Secretary Clinton accused China of human rights violation” (May 10, 2011) & “Clash of Civilizations: US vs. China over Google.” (May 10, 2011).
What I am arguing in this commentary is that good intention on the part of US to oppose government oppression and ameliorate economic exploitation does not necessarily (without considering local context, as in Syria) or automatically (even with further assistance and help from outside, such as Libya) translate into good governance for the people, especially, in giving what the locals want, i.e., substantive goods, in the form of better life.
My central thesis is this, good process, might promise to bring good results (Democracy), but in fact deliver bad consequences, as in Egypt (effectively military government), Libya (practically civil war) and Iraq (reality no effective government).
My sense is, the Americans are good at creating process but not at all proficient, or perhaps even wise, in achieving the substantively good results. Looking at our own form of democratic process in action: We put more people in jail and yet has the highest crime rates in the world. We have people still in jail because we would not give them the DNA kit to test their innocence. We bankrupt our nation, and defraud the world with forged negotiable instruments. The list goes on ….
In the following pages I will discuss why US insistent of rule of law, particularly, trumping substantive justice with procedural rules is wrong headed and ill fated.
My position is that:
(1) By nature and due to necessity, people all around the world pursue survival and happiness as end goals. These are substantive goods. Alternatively called end goals of life
(2) With construction and out of choice, many people around the world set up process to achieve, secure or maintain survival and happiness. These are called process goods. Alternatively called instrument for living.
(3) People all around the world prefer substantive goods over process goods, intuitively, i.e., felt, not reasoning. (This does not mean that there is no reason, or in the ultimately analysis, unreasonable.)
(4) When in conflict, substantive goods will trump process goals, instinctively. (This means that it is a matter of reaction, as a matter of disposition, and out of habits. Commonly called survival instinct.)
(5) No individual or country can long survive if they allow the process goods to come before substantive goods.
SUPPORT FOR MY POSITION
If Arab Spring stands for anything, it stands for the fact that rules are to be disobeyed, at times violently, if the rules stop people from getting what they want, in survival and happiness. Again let us listen to what Obama has to so:
“On December 17, a young vendor named Mohammed Bouazizi was devastated when a police officer confiscated his cart. This was not unique. It is the same kind of humiliation that takes place every day in many parts of the world - the relentless tyranny of governments that deny their citizens dignity. Only this time, something different happened. After local officials refused to hear his complaint, this young man who had never been particularly active in politics went to the headquarters of the provincial government, doused himself in fuel, and lit himself on fire. Sometimes, in the course of history, the actions of ordinary citizens spark movements for change because they speak to a longing for freedom that has built up for years. In America, think of the defiance of those patriots in Boston who refused to pay taxes to a King, or the dignity of Rosa Parks as she sat courageously in her seat. So it was in Tunisia, as that vendor's act of desperation tapped into the frustration felt throughout the country. Hundreds of protesters took to the streets, then thousands. And in the face of batons and sometimes bullets, they refused to go home - day after day, week after week, until a dictator of more than two decades finally left power.”
President Obama used Bouaziz to make his case for a new dawn in democratizing the Middle East. What he fails to grasp is the fact that the only reason why Bouaziz, the street vendor, killed himself, in not that he yearned for freedom and democracy, it is that he was not allowed to make a living. Simply put, Bouaziz’s death has nothing to do with dignity, still less democratic governance. It has everything to do survival. In Chinese it is call “minsheng”, literally “people’s livelihood”.
If Bouaziz lived in a more prosperous place, such as Hong Kong, I doubt that Bouazzi would needs to burn himself. I choose Hong Kong because Hong Kong experienced a civil disturbance (riots) that led to many deaths and injuries, and 1800 people were arrested in 1966 over a 25 cents (50%) fare increase in Star Ferry harbor crossing, when Hong Kong was very poor and labored under an "enlightened" British colonial rule. (The US never once championed for a Hong Kong Sprint, then!)
I also choose Hong Kong, now 45 years later, because Hong Kong has one of the highest Kennedy ratio (rich vs, poor index) in the world, but there are also a lot of economic opportunities. Police arrest street hawkers daily, but there is no suicide, no riots. This is not as a result of a competent police or fair judiciary. This is because street vendors can always find some other economic opportunities.
In essence, from the “street” people’s perspective, concrete - particular needs for economic survival, not abstract - general sense of democracy, justice, is cause for rioting. In the end and as a rule, people in the street and people in the corridor of powers do not see eye to eyes on cause of and cure for public grievances.
The people in the street (undeveloped/less developed countries) want substantive goods.
Elite politicians in governments (of well to do - rich nations, until now, mostly in the west – original G-6 was France, Germany, Italy, Japan, the United Kingdom, and the United States) talk about process goods.
The elites always do things in the name of the people in the street, to satisfy their sense of being; world view (globalization beyond the reach of the commons, until now with e-revolution), identity (people are doers, elites are thinkers, people are rewarded externally and in small dosage, elite are rewarded internally, and dream big), values (people are materialists and pragmatists, elites are idealists and principle minded) and interest (immediate gratification, deferred gratification).
The above shows that governance is not about process goods (democracy) favored by the rich people/country, it is always about substantive good (survival at the low end and happiness the high end)for the working people.
PROCEDURAL INJUSTICE S’ VS. SUBSTANTIVE JUSTICE
Where do our sense of and yearning for substantive justice come from, I do not know. (Perhaps as Shakespeare would have we should: "The first thing we do, kill all the lawyers (philosopher).")
Whatever the origin, I find that every person I talked to, all over the world, except with US lawyers in court (not even in private, or should I say particularly in private), love to do substantive justice. I cannot say all western lawyers, such as English lawyers, are not concerned with substantive justice, e.g., UK allows credible but coerced evidence to stand. French legal system of course pursues inquisitorial justice, in search of truth with an examining magistrate.
Closer to home, we find parents telling the kids to speak the truth and owe up to their indiscretions. Many times, I recall, I got punished (more), not for doing the wrong things, but because I lied about it – hiding wrong doing is a cardinal sin, was the lesson I learned. My father, as with most (all?) parents, would not tell their kids that they have a right to remain silence, in the face of wrongdoing.
The whole point here is to set the record straight: substantive justice, not procedural justice, is what everyone wants.
Finally, if you are still are not convinced, you need to look no further than post 9/11 America. President Bush’ reaction to terror tells the world clearly and loudly what US stands for:
“Substantive goods – goal of survival is more important than process goods – tools of Constitution. That is why Bush authorized the torture of terrorists, detention of Muslims without charge, and electronically monitoring of the nation’s Internet.
CLASHES OF JUSTICES: A CASE STUDY
In the US, a person has been murdered. A suspect was arrested. The detective interrogated him without giving him a Miranda warning: “You have the right to remain silent. Anything you say or do can and will be held against you in the court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?” and contrary to Miranda v. Arizona 384 U.S. 436 (1966).
The suspect confessed and incriminatory evidence was recovered as a result of the confession. (You can make this a tortured confession if you like.) The case went to trial. What would happen?
The US courts would have to dismiss the case, since the prosecution was based solely in the admissible confession. The reasoning of the court should be a simple one: procedural justice (i.e., rule of law) trumped substantive justice (i.e., actual guilty),
It is clear from this case, the procedural rule established to seek the truth - justice leads to the wholesale avoidance of substantive injustice.
However, most people and many cultures in other part of the world, the likes of China (now moving towards an American procedural justice mode) and Iran do not follow procedure trumping substantive justice mode of justice delivery.
Why is it that China and many other countries prefer substantive justice over procedural justice? This is because substantive justice is REAL justice to the people in the street. People in the street have to live (do battle with), and live with (experience, feel) justice everyday.
Procedural justice makes sense to the elite – educated, trained, professional - justice administrators. Elites in courts only have to think about justice in theory at office, with imagination and (if need be) empathy to match. When a criminal escapes substantive justice to realize procedural justice, it rarely affects them in the real term, other than perhaps senses of professional misgivings and at times moral quandary.
Finally, even the criminals/suspects would readily acknowledge (as a police officer I talked to many), they got off (laughing out loud) not because they do not deserve to be punished but because they are lucky, or the system is dysfunctional. (Few people knows, criminals also have an internal justice compass. They just rationalize it away in appropriate time and situation.)
Why do the west (U.S.) condemned other countries that prefer substantive justice over procedural justice (ultimately substantive goods over process goods)? There are three reasons, one historical, one cultural, one social.
First, historically, the western civilization in general and US in particular suffers from oppression of the ruler. As an example, U.S. rebelled against England on account of “taxation without representation.” US wrote a constitution to keep oppressive government and abusive officials at bay. More simply, Americans subscripted to a “powers corrupt” thesis. Thus, stringent procedures were set up to check the government.
Second, culturally, western civilizations, with US in the lead, think logically and work mechanically (government as machine). This type of thinking is best represented by and exemplified in Weber’s work on bureaucracy – division of labor, chain of command, span of control, hierarchy, etc. It is believed that “machine” can set people free. Machine will not make mistakes, people do, is the rule. Procedural justice is machine delivered mechanical justice. Thus the notion, rule of law, not man. (But justice is always about man, and thus must be by man. We can only approach the rule of law, if we use a machine to enforce the law!)
Third, socially, western society has changed from a pre-industrial, primitive, to an industrial (now post industrial, information and networking) society. In a pre-industrial face to face communal society, substantive justice is the rule. In an industrial society, human relations mediated by all kinds of organizations/institutions, procedural justice is the norm.
When President Obama asked people in the Middle East to follow the example of the western world to give up their traditional system of government for a democratic one, he is correct with the first, and wrongheaded with the second.
President Obama was right on to suggest traditional society should not and cannot be maintained if it is the people’s wish (there is an issue of how many and what kind of people support change, but that is an issue of another day).
The President was ill advised when he suggested that Arab Spring should (normative) and dead wrong when he predicted that the people in the Middle East would (empirical) lead to American form of government and governance.
How do I know? As I intimated earlier, given a choice, real choice, most people in the street prefers substantive justice over procedure justice. Individually and collectively, people want substantive goods (food, shelter, education for kids) than process goods (voting, rule of law).
That is why Chinese government has long maintained, as vindicated by history, that people’s livelihood (“mimsheng”) is more important then people’s rights (“minquan”) and still more sought after democracy (“minzhu).
System of government (Democracy) or instrument of control (rule) ultimately are process goods. As process goals it can only work if it achieve the substantive goods of the people, as shaped by history, culture and society, underlying. (Or, as the Americans are fond of saying, in another matter, "guns do not kill, people do." More closer to home, Singaporean do not speak English, they speak Singapore-glish!)