Faith in Our Judiciary: A Democratic Imperative

“But if the moral authority of the judiciary is held in high esteem by the people, that would strengthen the position of the judiciary and constitute a definite check against improper acts by the Executive, as voters may well cast their verdict against the government at the next general election” – Tun Salleh Abas, March 1984

When verdicts delivered by our judges appear misinformed and ill-founded, the instinct is to withdraw our support from the courts all together. This instinct may prove to be more destructive than decades of bad judgement. A healthy democracy is contingent upon the functioning of all three branches of government, proper or improper, competent or incompetent. When public confidence in either branch of government is eroded, insecurity, fear and dissatisfaction ensues. To lose faith in any one branch therefore delegitimizes any claim to authority one might purport to have. Unlike the legislature and the executive however, the judiciary is not elected by popular vote. This means that the judiciary will continue to exist regardless of what government is in power. It is for this reason that while confidence in our judges may wane from time to time, faith in the judiciary as an institution cannot and should never be compromised. This faith should remain steadfast, even while the judiciary may not appear to be independent, seemingly only doing the will of the executive.

There has been much dejected talk among the public of late with regard to the flurry of court cases involving civil activist and selected members of the opposition. It may indeed be popular opinion that judges today are merely pawns of their Executive masters. This perception may or may not be ill-founded. If it is true, it may certainly seem rational that people should call for a boycott of the entire judicial system. What is the use in continuing to feed a system that is perceived to be corrupt and contemptuous? I myself have thought as much in recent weeks. All these baseless allegations and unscrupulous awarding of damages from a string of defamation charges shake the confidence of the ordinary person in seeking redress for his/her grievances from our courts. Yet, it is exactly at times such as these that the public must stand resolutely behind the judicial system. The judiciary remains our final safety valve when the Executive and the Legislature act ultra vires.

To abandon the courts means to abandon the law. But as Aristotle has once warned us, “where laws are not supreme, there do demagogues spring up.” It is up to the public then to throw its weight behind our democratic institutions, particularly, our judiciary. We must continue to be critical of our judges sure, continue to question questionable verdicts and seek justice where it is not being served. Never must we however, at any rate, abandon our faith the the judicial system. It is a democratic imperative. Our former aggrieved Chief Justice, Tun Salleh Abas reminds us, “An independent Judiciary is key to national unity and progress”. Yet even when the judiciary is far from independent, where it is not comprised of men of high honor, where justice is not seen to be done according to the oath of office that our judges have taken, we the public must remain steadfast in our demands for justice, and continue to bring our grievances to the court of law. Our hope is that one day, the fountain of justice will again begin to flow, but we cannot do this without a fountain.


Don’t Tax the Rich. Tax Inequality!

This Op-Ed Ian Ayres and Aaron Edlin is an interesting application for implementing tax reforms to curb inequality.

Retrieved from The New York Times Op-Ed section, 18th December 2011
THE progressive reformer and eminent jurist Louis D. Brandeis once said, “We may have democracy, or we may have wealth concentrated in the hands of a few, but we cannot have both.” Brandeis lived at a time when enormous disparities between the rich and the poor led to violent labor unrest and ultimately to a reform movement.

Over the last three decades, income inequality has again soared to the sort of levels that alarmed Brandeis. In 1980, the wealthiest 1 percent of Americans made 9.1 percent of our nation’s pre-tax income; by 2006 that share had risen to 18.8 percent — slightly higher than when Brandeis joined the Supreme Court in 1916.

Congress might have countered this increased concentration but, instead, tax changes have exacerbated the trend: in after-tax dollars, our wealthiest 1 percent over this same period went from receiving 7.7 percent to 16.3 percent of our nation’s income.

What we call the Brandeis Ratio — the ratio of the average income of the nation’s richest 1 percent to the median household income — has skyrocketed since Ronald Reagan took office. In 1980 the average 1-percenter made 12.5 times the median income, but in 2006 (the latest year for which data is available) the average income of our richest 1 percent was a whopping 36 times greater than that of the median household.

Brandeis understood that at some point the concentration of economic power could undermine the democratic requisite of dispersed political power. This concern looms large in today’s America, where billionaires are allowed to spend unlimited amounts of money on their own campaigns or expressly advocating the election of others.

We believe that we have reached the Brandeis tipping point. It would be bad for our democracy if 1-percenters started making 40 or 50 times as much as the median American.

Enough is enough. Congress should reform our tax law to put the brakes on further inequality. Specifically, we propose an automatic extra tax on the income of the top 1 percent of earners — a tax that would limit the after-tax incomes of this club to 36 times the median household income.

Importantly, our Brandeis tax does not target excessive income per se; it only caps inequality. Billionaires could double their current income without the tax kicking in — as long as the median income also doubles. The sky is the limit for the rich as long as the “rising tide lifts all boats.” Indeed, the tax gives job creators an extra reason to make sure that corporate wealth does in fact trickle down.

Here’s how the tax would work. Once a year, the Internal Revenue Service would calculate the Brandeis ratio of the previous year. If the average 1-percenter made more than 36 times the income of the median American household, then the I.R.S. would create a new tax bracket for the highest 1 percent of income and calculate a marginal income tax rate for that bracket sufficient to reduce the after-tax Brandeis ratio to 36.

This new tax, if triggered, would apply only to income in excess of the poorest 1-percenter — currently about $330,000 per year. Our Brandeis tax is conservative in that it doesn’t attempt to reverse the gains of the wealthy in the last 30 years. It is not a “claw back” tax. It merely assures that things don’t get worse.

A key aspect of our proposal is the tax’s automatic nature. Congress need only act once to protect our future. Just as our tax brackets automatically adjust with the inflation rate, Congress could specify nondiscretionary conditions under which the Brandeis tax would automatically go into effect.

Part of our goal is to change the way politicians speak about income equality. Framing the income of the wealthy in relation to the median income will help us all keep in mind the relative success of the middle class. Our grandparents would be shocked to learn that the average income of the 1-percent club has skyrocketed to more than 30 times the median income — just as we will be shocked if 20 years from now 1-percenters make 80 times the median, which is where we will be if inequality continues to grow at the current rate unabated.

The Occupy Wall Street movement is right to decry the increasing power of the 1 percent as a threat to democracy. President Obama is right to characterize the present as a “make-or-break moment” for the middle class. As 1-percenters ourselves, we call on Congress, for the sake of democracy, to end the continued erosion of economic equality in our nation.

Ian Ayres, a professor of law at Yale, is the author of “Carrots and Sticks: Unlock the Power of Incentives to Get Things Done.” Aaron S. Edlin, a professor of law and of economics at the University of California, Berkeley, is co-editor of “The Economists’ Voice: Top Economists Take On Today’s Problems.”

American Ethos

In my Economist reading group today, we talked about taxation. The article we discussed had to do with the republican primary. It appears that all of the candidates are campaigning under the same banner of tax cuts and the shrinking of government. The latest development that appears to be trending is this idea of a flat tax rate. This is essentially a new tax system that will level the amount of federal income tax payed by the rich and the poor. No matter how much one earns, the same percentage will apply. There are of course different applications of this flat rate idea- Herman Cain’s 9-9-9 proposal for instance (9% corporate and personal income tax and sales tax) and Ron Paul’s particularly libertarian suggestion to completely do away with federal income tax. Of course the argument against this sort of system is that it involves increasing the burden on lower income earners while providing- to borrow Mitt Romney’s words- ‘a tax cut for fat cats’.

Interestingly however, a point was brought up that I think highlights the essential difference between an American idea of government and a more ‘European’ one. What this person argued was that it isn’t fair to expect the rich to pay for the woes of the poor- that the government was limiting the freedom of each individual to rise above the rest without having his money ‘robin hooded’ away. This is a very libertarian approach to government that is in line with America’s obsession with individualism. The burden of taxation then, although necessary, should be shared equally by every corner of society, regardless of their ability to pay.

This is of course understandable especially if you consider America’s founding. It was a breaking away from the nepotism and despotism of a medieval system that arbitrarily decided on a society’s winners and losers.

What is interesting about this persons suggestion is that it is reflective of a collective American ethos (not my words but my professor’s). If you worked hard to earn your money you should be allowed to keep it. If you haven’t, well sorry, you still need to carry your own weight and pay taxes like everybody else. This of course seems entirely reasonable but a little bit impractical.

For a poor person – and in America they are very liberal with their idea of poor – the burden of a flat income tax would of course be decidedly higher. 9% of 20,000 dollars is much more onerous than 9% of 300,000 dollars a year. Should someone who is barely scraping by be expected to pay into society when he can’t even provide for himself? What is the role of government in supporting him? According to the libertarian argument, private charity should replace the role of government. A tad idealistic no?

Nonetheless, it is plain to see that there is a very distinct difference in the European countries- particularly in the Scandinavian countries. There are of course much higher tax rates in Europe than there are in America- the marginal tax rates on income can go as high as 54%. The tax revenue generated is then redistributed amongst the copious amounts of social welfare programs. There is this almost socialist idea then, the rich have a responsibility toward the poor and that it is the government’s job to regulate that. Egalitarian is the word. This of course spills over to the formers European colonies in Asia. Their idea of government is one that is more patriarchal and authoritative (At least in comparison to other democratic capitalist states).

The debate in America then is a very ideological one. Some argue that the rich don’t get merely on their own merit, that they ride on the backs of government infrastructure and on society. A tax system with a ton of loopholes as well has allowed many of the rich to avoid paying taxes either by means of deductions or because most of their income is acquired through un-taxable capital gains and dividends.

Coming from a more ‘European’ idea of government, it is interesting to note that there is such a stark difference even amongst the developed world. It raises very important questions that I’m sure will be occasion for more interesting debates in the future.

Regardless of ideological differences however, I am of the opinion that it is very impractical to impose a flat tax rate system especially at a crisis time such as this. For very practical reasons, the American economy cannot handle more tax cuts if it is going to solve its sovereign debt problem. Furthermore, if you take from the poor, there will be severe retaliation that could result in rising crime rates, further unemployment and a more degenerative society. Uncle Sam risks biting into consumer power that could stall economic recovery. From a realist perspective then, it is reasonable to do just the opposite. Sacrifices have to be made, and the rich incur a smaller opportunity cost… from a strict efficiency stand point, American ethos for now needs to be set aside.

God in his mercy made the fixed pains of hell…

Something I’ve been thinking about today-
In my Christian Foundation’s class, we are just getting into the protestant reformation and the life of Luther and Zwingli. We talked about the medieval penitential scheme which is a formula for salvation based on the theology of Tertullian, the first great Latin theologian of the 2nd century. According to Tertullian:

  1. The basis of repentance is fear
  2. God grants pardon by way of repentance
  3. Salvation is the reward of repentance
Do you see the penitentiary formula there? The church in the 14-15th century had become obsessed with three things as the means to salvation- Confession (Words), Contrition (Heart) and Satisfaction (Deeds). This transactionary means of atonement was the cause of the sale of indulgences, the idolization of relics and other such abuses.
Luther was heartily against such a system which he saw vile and corrupt. More so, he was torn up within himself about the seemingly insurmountable enormity of his personal sin. He felt like that he was always at odds with God. He viewed his contrition as essentially self centered, so much so that he writes-
‘For I hated that word RIGHTEOUSNESS OF GOD… with which God is righteous and punishes the unrighteous sinner… “
Here Luther identifies the human condition, calling it a natural crookedness.
‘The natural man enjoys everything with reference to himself and uses everybody else for the same purpose, even God himself: he seeks himself and his own interest in everything’ L.W. 56, 361
St. Augustine said at one point, ‘you don’t really do God’s will unless you delight in it’. This was Luther’s struggle with himself and his struggle with the church. What is the cause of salvation? According to Luther, it is a gift. He comes to the conclusion that it has to begin with grace. The cause is the Holy Spirit.
‘I began to understand that the righteousness of God is that which the righteous live by a gift of God… the passive righteousness with which merciful God justifies us by’ L.W. 34, 336-337
According to Luther, when one understands this, one sees neither anger, death or hell but sheer grace. By no means does he deny the significance of the contrition, confession and satisfaction; all three are necessary but do not in themselves cause salvation.
‘If contrition is the cause, [of forgiveness] then Christ is idle’ L.W. , 34-172
If you think about it, we in the 21st century might not have actually got it. The message we preach is still a reflection of the Medieval Penitentiary System. We talk about grace as if it is something we acquire, conditional up a certain transaction (repentance) and forgiveness is the reward. An interesting taught but not quite what I was thinking about all day.
Rather on a related note, I was asking the question, if we subscribe to Luther’s answer to salvation, what becomes of hell? What is the consequence of rejecting God’s gift of righteousness? Is there then such a thing as eternal suffering (penitentiary), and would a loving God subject us to such a condition? What is hell?
I found this terribly interesting compilation of C.S Lewis’ thoughts on hell.
Essentially, Lewis says that hell is an imminent possibility. But he describes hell as ‘self-centeredness’ and ‘self-chosen’. See how Lewis makes it non-penitentiary? He says for example:
“We must picture Hell as a state where everyone is perpetually concerned about his own dignity and advancement, where everyone has a grievance, and where everyone lives the deadly serious passions of envy, self-importance, and resentment.”
The Screwtape Letters
“A man can’t be taken to hell, or sent to hell: you can only get there on your own stream.”
The Dark Tower & Other Stories, “The Dark Tower”
To enter heaven is to become more human than you ever succeeded in being on earth; to enter hell is to be banished from humanity. What is cast (or casts itself) into hell is not a man: it is “remains.” To be a complete man means to have the passions obedient to the will and the will offered to God: to have been a man – to be an ex-man or “damned ghost” – would presumably mean to consist of a will utterly centered in its self and passions utterly uncontrolled by the will.
The Problem of Pain
And finally:
“The whole difficulty of understanding Hell is that the thing to be understood is so nearly Nothing. But ye’ll have had experiences… it begins with a grumbling mood, and yourself still distinct from it: perhaps criticising it. And yourself, in a dark hour, may will that mood, embrace it. Ye can repent and come out of it again. But there may come a day when you can do that no longer. Then there will be no you left to criticise the mood, nor even to enjoy it, but just the grumble itself going on forever like a machine.”
The Great Divorce
All this to say that our value on repentance and the human agency is misplaced if we don’t in humility acknowledge that salvation is the redemption of the human condition and not a formula for atonement. Hell isn’t penitence, it is mercy… Something that points us in the direction of hope. Fascinating stuff…

The beginning of understanding

From Anselm’s Proslogion:

“I do not seek, Lord, to reach your heights, for my intellect is as nothing compared to them. But I seek in some way to understand your truth, which my heart believes and loves. For I do not seek to understand in order to believe, but rather believe in order to understand.”

Anselm of Canterbury is the forerunner of medieval scholasticism. He pioneered the bridge between theology and reason, seeking to understand faith through rational argument. It is a tight rope to tread on especially since what is understood in modern philosophy feeds on unquestionable reason (more often than not a reaction to an outrage, an idea I will explore in my next post). Anselm makes a very interesting point here. He puts the horse before the cart suggesting that understanding stems from belief and not the other way around.