In Libya, Building the Rule of Law

by Sarah Leah Whitson

New York Times
December 29, 2011

When I first met Mustafa Abdel-Jalil, now the chairman of Libya’s Transitional National Council, in April 2009, he was the beleaguered justice minister in Muammar el-Qaddafi’s Libya, virtually the sole brave voice among senior officials demanding accountability from the country’s security services.

He had been brought in as a concession to the restive western city of Benghazi, where he was a judge for many years. Abdel-Jalil minced no words in denouncing the corruption of the Interior Ministry, which operated outside the law to detain and abuse Libyans with impunity. Commenting on the fledgling reforms under Qaddafi, he characterized Libya as a country “going through the difficult and painful pangs of birth.” Little did he know how utterly transformed Libya would find itself just over two years later.

Recently in Tripoli, I sat with Abdel-Jalil to discuss new priorities for Libya that would have been unimaginable in 2009. The challenges the new authorities face are daunting, starting with the need to gain control over thousands of men in dozens of independent militias. Libya swiftly needs to have a justice system running that can deal fairly with the crimes of today and of the past, and to rebuild basic institutions, atrophied over many decades of authoritarian rule.

Government officials recognize the need to give the anti-Qaddafi fighters, widely regarded as heroes, a reason to give up their arms.

The transitional council is discussing plans for a massive program of training, jobs, education, loans and compensation. But this commendable initiative will require time and substantial funds. Meanwhile the council shouldn’t wait until it has full command over the militias to assert its authority over the more than 5,000 detainees those militias are holding, outside any jurisdiction of Libya’s laws or justice system.

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The 9th Circuit’s proper call on bone marrow donations

by George Will

Washington Post
December 29, 2011

The U.S. Court of Appeals for the 9th Circuit is famously liberal and frequently reversed. Recently, however, a unanimous three-judge panel of this court did something right when it held that bone marrow donors can be compensated. In effect, it revised a law, the National Organ Transplant Act (NOTA) of 1984, because of a medical technique developed since then.

Was this “judicial activism” — judges acting as legislators, imposing social policies they prefer? Or was it proper judicial engagement — performance of the judicial duty to ensure that the law is applied in conformity with the actual facts of the case? Herewith an example of a court’s conscientious application of law in light of a pertinent change — a technological change — in a medical sphere the law regulates.

NOTA made it a felony to sell human organs for transplants. This codified two moral judgments. One is that there is wisdom in an instinctive repugnance about the commodification of the human body, or at least of body parts that are not renewable. The other judgment is that a market for organs — offering perhaps $50,000 for a kidney — would usually, and troublingly, involve affluent people buying from low-income people whose consent is influenced by their neediness.

Here, however, is another moral dilemma resulting from NOTA’s codification of moral impulses: Potentially deadly blood diseases strike tens of thousands of Americans each year. For example, of the 44,000 who will be diagnosed with leukemia, including 3,500 children, half the adults and 700 of the children will die from it. Nearly 3,000 Americans die of various blood diseases because they cannot find matching bone marrow donors. Compensation would substantially increase the number of lifesaving donors. Unfortunately, NOTA classifies as an organ the bone marrow that is the source of lifesaving stem cells that generate white and red blood cells, and platelets.

The 9th Circuit panel ruled this month that a new medical technique has made the phrase “bone marrow transplant” anachronistic. When NOTA was written, extracting bone marrow involved a protracted, painful and risky semi-surgical procedure in which long needles were inserted into the hip bones of anesthetized donors.

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Interview with Ex-German High Court Justice: 'It Is a Mistake To Pursue a United States of Europe'

Spiegel
December 28, 2011

In an interview conducted as he heads into retirement, German Constitutional Court Judge Udo Di Fabio explains why he believes the high court's recent decisions on the European Union will not necessarily hinder further European integration and how he believes debates over possible changes to Germany's constitution to strip power from Karlsruhe are "phoney."

The Lisbon Treaty, which went into effect on Dec. 1 2009, represents the last major reform of the structures of the European Union. Germany's Federal Constitutional Court subsequently issued a landmark decision on the treaty, authored by Judge Udo Di Fabio, which stated that the Treaty conformed with Germany's constitution. Nevertheless, the court also underscored that the parliament in Berlin must have greater participation in decisions made by the country at the EU level. Many politicians and journalists believe the ruling could hinder a future deepening of European integration.

In an interview with SPIEGEL, Di Fabio discusses why he believes the Lisbon ruling isn't nearly as critical of the EU as some have interpreted and why strong democratic states are essential to a continuing integrated Europe.

SPIEGEL: Professor Di Fabio, you were the German Constitutional Court's expert on Europe and the author of the controversial decision on the Lisbon Treaty, which has governed the workings of the European Union since 2009. Will politicians in Berlin heave a sigh of relief now that you are retiring from the court?

Di Fabio: I can't imagine that they will. A chamber of the Constitutional Court is a collective decision-making body. You shouldn't overestimate the power of a single judge.

SPIEGEL: Does the government still have to fear that the court in Karlsruhe will put the brakes on European integration?

Di Fabio: I don't think that the Constitutional Court stands in the way of integration efforts. In many respects the court has even strengthened Germany's position.

SPIEGEL: But your president, Andreas Vosskuhle, only recently said with regard to further integration steps that the scope of Germany's constitution, the Basic Law, had been "largely exhausted."

Di Fabio: I think such statements concern sweeping transfers of responsibilities that are currently not up for debate.

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Σύνταγμα, δικαιώματα, δημοκρατία, γράμμα κενό

του Χρήστου Ζέρβα

Ελευθεροτυπία
17 Δεκεμβρίου 2011

Η Εθνική Επιτροπή Δικαιωμάτων του Ανθρώπου, ο επίσημος σύμβουλος της κυβέρνησης στα θέματα αυτά, επεσήμανε με πρόσφατη ανακοίνωσή της πως τα ατομικά-κοινωνικά δικαιώματα και η δημοκρατία κινδυνεύουν σοβαρά από τα συνεχή δημοσιονομικά μέτρα των τελευταίων δύο ετών. Πριν ξεσπάσει η θύελλα της οικονομικής κρίσης, όσοι μάχονταν υπέρ των ανθρωπίνων δικαιωμάτων αντιμετωπίζονταν με συγκατάβαση αλλά και διάχυτη δυσφορία. Είχε προηγηθεί η βαριά δεκαετία της αντιτρομοκρατικής σταυροφορίας, όπου οι κυβερνήσεις θυσίαζαν με άνεση στο βωμό της «ασφάλειας» πολλές κατακτήσεις του μεταπολεμικού κράτους δικαίου (τρομονόμοι, εκτεταμένη επιτήρηση και καταστολή).

Τώρα, εν μέσω κρίσης, τα ατομικά και κοινωνικά δικαιώματα αντιμετωπίζονται ως είδος πολυτελείας και μάλιστα εν ανεπαρκεία. Οποιος ασχολείται με τέτοια θέματα, τη στιγμή που απειλείται ευθέως η ίδια η επιβίωση των ανθρώπων, χαρακτηρίζεται σήμερα περίπου «γραφικός». Είναι γεγονός ότι τα δικαιώματα και οι ελευθερίες του νεοτερικού καπιταλισμού δεν έχουν τυπικά καταργηθεί, παραμένουν ουσιαστικά όμως ένα κενό περιεχομένου γράμμα. Δυστυχώς αυτό θεωρείται από τη mainstream καθεστωτική διανόηση ως κάτι φυσιολογικό.

Το ίδιο ακριβώς συμβαίνει και στο σύνολο της εικόνας. Οι θεσμοί λειτουργούν τυπικά μέσα εκεί, όμως η Δημοκρατία είναι απ' έξω. Μια σειρά από «μεταρρυθμίσεις» στην οικονομική και πολιτική ζωή έχουν μετατρέψει τα Συντάγματα, από καταστατικούς χάρτες δημοκρατικής λειτουργίας των ευρωπαϊκών χωρών, σε «λάστιχο» που προσαρμόζεται μόνο στις ανάγκες της «αγοράς».

Η εξέλιξη αυτή επιβεβαιώνει ωστόσο την πάγια κριτική, η οποία «βλέπει» τους θεσμούς ως εργαλεία χειραγώγησης της κοινωνίας και ταύτισής της με τα συμφέροντα μιας μικρής ολιγαρχίας που ασκεί την ηγεμονία. Οι ευρωπαϊκές συνθήκες δικαιωμάτων, τα εθνικά Συντάγματα, τα κοινωνικά δικαιώματα (απόρροια του σοσιαλδημοκρατικού συμβιβασμού) δεν ακυρώνονται στα λόγια, αλλά στην πράξη.

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Mr. Gingrich’s Attack on the Courts

New York Times
Editorial
December 10, 2011

In any campaign season, voters are bound to hear Republican candidates talk about “activist judges” — jurists who rule in ways that the right wing does not like. But Newt Gingrich, who is leading in polls in Iowa, is taking the normal attack on the justice system to a deep new low.

He is using McCarthyist tactics to smear judges. His most outrageous scheme, a plan to challenge “judicial supremacy,” has disturbing racial undertones. If he is serious about his plan, a President Gingrich would break the balance of power that is fundamental to our democracy.

The plan’s centerpiece is an attack on the landmark 1958 ruling in Cooper v. Aaron, in which the Supreme Court reaffirmed that Arkansas had a duty to follow federal law. The governor had contended he was not bound by the court’s call for desegregation in Brown v. Board of Education. He ordered the National Guard to bar nine African-American students from Little Rock’s Central High School, causing violence and disorder.

For the first time in the court’s history, all nine justices individually signed the unanimous opinion. They did so to stress that the “chaos, bedlam and turmoil” caused by the governor’s refusal to obey the law was “intolerable.” Unless the court acted as the final arbiter about the Constitution’s meaning, as Marbury v. Madison instructed, chaos would prevail. It was one of the court’s most important decisions. In Mr. Gingrich’s twisted view, Congress and the executive branch have for too long cowered before the court.

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Who is undermining Israeli democracy?

by Jonathan Rosenblum

Jerusalem Post
December 9, 2011

In order to fully appreciate the absurdity of Court President Dorit Beinisch’s charge that even the most minimal changes in Israel’s method of judicial selection represent an attempt to undermine “the democracy upon which our society rests,” one need only know one fact: Israel’s method of judicial selection is absolutely unique in the democratic world.

No other system gives so much power to sitting Supreme Court justices to choose their future colleagues and successors. Only India among the world’s democracies also gives sitting justices a role in the judicial selection process. Are all the rest, then, not really democratic? Even by Israeli standards the claim of the unique wisdom of our system reflects a remarkable degree of hubris.

In truth, it is the Supreme Court itself that represents the greatest challenge to Israeli democracy. Richard Posner, considered by many the most brilliant living American jurist, defines democracy as “a system of governance in which the key officials stand for election at relatively short intervals and are thus accountable to the citizenry.” Judicial review, in which courts strike down statutes or substitute their policy judgments for those of elected officials or their delegates, is thus in inherent tension with representative democracy so defined.

To minimize that tension, Alexander Hamilton argued in The Federalist Papers that the judiciary must remain “the least dangerous branch,” with no power over the purse or sword. Retaining the status as the least dangerous branch, wrote the great constitutional scholar Alexander Bickel in his seminal book of that name, requires justices to exercise restraint and avoid entering into the realm of politics and making decisions based on their own personal values.

Beinisch’s mentor, former court president Aharon Barak, completely rejected any such restraint. He abandoned traditional doctrines of judicial restraint – standing and justiciability – famously declaring that “everything is justiciable,” including troop deployments in wartime, and permitted any citizen who objected to a particular governmental decision to bring a suit directly to the High Court of Justice. He boldly usurped traditional legislative prerogatives – for instance, appointing a commission to consider the issue of road closings on Shabbat nationwide.

As Prof. Ruth Gavison and many others have argued, the Israeli Supreme Court determines national “norms” to a degree without parallel in the Western world. Former court president Moshe Landau accused the court under Barak of having taken on the role of Platonic Guardians, “a role that they are utterly incapable of fulfilling and for which they have no training.”

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Would You Kill One Person to Save Five? New Research on a Classic Debate

by John Cloud

Time
December 5, 2011

Imagine you are a train-yard operator who sees an out-of-control boxcar running down a track that five workers are repairing. The workers won't have time to get out of the way unless you flip a switch to change the car to another track. But another worker is on the second track. You have just seconds to make a decision: let the five workers die — or kill the one. What do you do?

This dilemma is a famous philosophical conundrum that was originally called the "trolley problem." Now a team from Michigan State University's psychology department has used virtual-reality technology to test how we respond psychologically and physiologically when faced with this problem.

The two opposing philosophical approaches to the trolley problem are the utilitarian one (kill one guy in order save the others) and the do-no-harm approach (let God or nature take its course, but don't make an active choice to kill another person).

In many years of surveys, the vast majority of people — usually about 90% — have chosen to kill the one and save the five. But until now, there's never been a study examining how people would react in a lifelike setting with real-looking potential victims.

In the Michigan State study, led by psychologist David Navarette, the 147 participants made their choice while wearing a head-mounted virtual-reality device that projected avatars of those who could die. (Watch a simulation here.) One chilling factor of the test: the potential victims were screaming as the boxcar approached.

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See more about the project