by Miroslav Imbrišević
Justice is an important human good. I will review one ancient and one modern principle of justice and discuss their relevance for the political sphere, paying particular attention to the Trump presidency.
We have inherited two maxims from Roman law that are commonly known as representing principles of justice: nemo iudex in sua causa (let no one be a judge in their own cause) and audi alteram partem (listen to the other side). They are also called “principles of natural justice” and have for a long time been part of the common law. Apart from the legal realm, these principles can be applied in the private sphere, as well as in political life.
The role of these principles is to put formal (i.e. procedural) constraints on the exercise of justice. With respect to the first, in the case of the law, a judge should not rule on a case that involves his wife or any other relatives, friends, or enemies. For an example outside of the law, we might say that the chair of a board should not decide his or her own remuneration. By barring people from judging their own cases, we avoid dangerous conflicts of interest.
This principle recently came to the fore, when President Trump claimed the constitutional power to pardon himself, in the case of impeachment and conviction by the Senate. There may be ambiguity in how the relevant passage in the US constitution should be interpreted, but I would submit that the framers of the constitution had nemo iudex in sua causa in mind. Regardless, this particular principle of justice helps us to decide the question before we address any issues of constitutional interpretation: as a basic ethical matter, Trump should not be the judge of his own case.
The military junta in Argentina attempted something similar in 1982. Five weeks before elections were to return the country to civilian rule, the generals passed a law which would give the military and the police immunity from prosecution for their deeds during the “dirty war” era. Thousands of people disappeared and many were tortured or even killed. The generals justified their atrocities by claiming that they had “fought for the dignity of man.” It took a long time, but the Argentine Supreme Court finally struck down the immunity law in 2005.
Only once did a sitting President – Gerald Ford – pardon another President – Richard Nixon – and we can construe Ford as having acted on behalf of the citizenry. A President who pardons himself for impeachable offences while in office usurps the right to judge a wrong-doer, which normally rests with the people or their representatives. Sitting Presidents are special in that their malfeasances are tried by the Senate, presided over by the Chief Justice of the United States. Trump’s belief that he can pardon himself reveals that he is convinced that others cannot judge him, an attitude we associate with absolute rulers, not U.S. Presidents.
I will now turn to another principle of justice, advanced by the philosopher John Rawls and according to which “positions of authority and responsibility must be accessible to all,” which, among other things, would seem to forbid nepotism. In politics, this principle was most famously invoked in the wake of John F. Kennedy’s appointment of his brother, Robert, to the post of Attorney General, in 1961. Though it turned out that the young and inexperienced lawyer was a capable official, six years later, in 1967, Congress passed an anti-nepotism law – also known as the “Bobby Kennedy Law.” In the American imagination anyone can become President of the United States, so surely, anyone should have the opportunity to take up other government positions, regardless of parentage. The sole consideration should be merit.
We find similar ideas in ancient China. The Chinese imperial examination for selecting government officials goes back more than 2000 years. Having competitive exams would ensure that government appointments would be based on merit rather than on social background and connections. In the 19th century, several European states as well as the U.S. saw the benefits of the Chinese system and adapted it for their own countries. Not only would this prevent the concentration of power in the hands of a few families, it would ensure that the best candidates would be appointed to government positions.
The U.S. anti-nepotism law explicitly includes the President. However, under the current administration, Deputy Assistant Attorney General Daniel Koffsky overturned longstanding legal advice against the hiring of relatives, insisting that “In choosing his personal staff, the President enjoys an unusual degree of freedom, which Congress found suitable to the demands of his office.” It would seem, then, that it is now acceptable for the President to give jobs to his daughter and her husband.
It doesn’t matter that the positions are unpaid, because Trump’s relatives occupy positions that were not open to others, who might have been more qualified. Being close to power also often results in a pay-off later, something we observe when former politicians gain plush jobs in business or benefit in other ways from their former positions. But even if the family members were well qualified for the job, the slightest hint of favoritism should be avoided or else citizens my lose trust in their government, which is crucial to the functioning of a democracy.
This principle can be extended to apply to the buying of offices. Prior to the Reformation, one could purchase and sell church offices (known as “simony”) and use them to enrich yourself. In the 16th century, judicial offices, known as “venal offices,” were for sale in France. Today, in the U.S., large donations to a political party can buy you an ambassadorship, and in the UK such generosity to a party may lead to a Lordship.
President Obama appointed Colleen Bell, a soap-opera producer (‘The Bold and the Beautiful’) to be the ambassador to Hungary. She had made large donations to his election campaign. Her bachelor’s degree may have been in economics and political science, but her performance during her confirmation hearings was dismal. When questioned by John McCain, she couldn’t name a single strategic interest the U.S. has in Hungary.
It is common for 30% of ambassadorships in the U.S. to be political appointments. The rest are filled by career diplomats. During the Obama administration, the number of amateur ambassadors rose to 37%, and in the first two years of the Trump administration, it went up to 42%. In other democratic countries, this would be unthinkable, because regional knowledge and political sensitivity are minimum requirements for these posts.
Although Britain traditionally only sends career diplomats abroad, there have been exceptions. In 1977, Peter Jay, a journalist and broadcaster, was appointed ambassador to the U.S. His unique qualification, as one commentator observed, was being the husband of the Prime Minister’s daughter.
Also under the umbrella of this principle is the idea that you should not profit from your office. This is why it is customary for politicians either to sell their business interests or hand over the running of them to others (preferably not family members or close associates), prior to taking office. President Trump has chosen to relinquish his position as CEO of the Trump Organization to his sons, and because of these family ties, he retains a close connection to his former businesses. Consider the following: on 1st January 2017, shortly before he took office, the initiation fee for his luxury resort in Florida, Mar-A-Lago, doubled, going from $100,000 to $200,000. One could say that this was a shrewd business move, but when you take political office you are supposed to serve the people rather than your own business interests.
The President is a frequent visitor to his Mar-A-Lago and likes to use it for official visits by foreign dignitaries. This opens up the opportunity to buy political or commercial influence by becoming a member. His private clubs also serve as recruiting grounds, and a number of longstanding members of the President’s various clubs have been elevated to ambassadorships.
One of President Trump’s election promises was that he would “drain the swamp.” Judging from his actions, it appears that he is hydrating the swamp rather than draining it.
Miroslav Imbrisevic is a philosopher, formerly of Heythrop College/University of London. His background is in legal and political philosophy, but recently he has started working in philosophy of sport as well.