is the word 'diary' better than the word 'blog'? probably not.
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an instinct of vengeance? or, well, maybe just strict liability criminal law.
I don't know whether there is an instinct of vengence, or whether violence just thoughtlessly substitutes itself for not knowing what else to do, but I want that BP CEO to come to some serious harm.
I know things are much more complicated than that, and that, in some ways, when we look at what is happening in the Gulf of Mexico and get mad, what we should see is our own faces in the mirror. All of that oil that has thus far spilled into the Gulf adds up to what the U.S. uses every couple of hours, every single day. And there are 48,000 wells in the Gulf, it�s not like the other oil companies are the good guys, and why is it that oil is so lucrative a business? As John Kerry said, �30% of our transportation fuel comes from the Gulf. Do you think Americans are going to suddenly stop driving to work tomorrow?� As Mark Morford points out, we even rely on petroleum and coal to fire most of the electricity-generating energy plants that charge cellphones so we can send angry Twitter messages via energy-sucking server farms. We are all implicated. We should change our ways.
Nonetheless, it is truly difficult not to imagine that this could have been handled better, to suspect that BP has been lying about the extent of the problem all along. Scientists and hard evidence show that there are immense plumes of oil underwater, and yet the BP CEO says that�s not what oil does, that it�s all on the surface, and that that is where their clean-up efforts are focused (clean-up efforts that have consistently refused international help). It also seems pretty clear that the Obama administration has not been as proactive as it could and should have been, and that some of the devastation of wildlife, ecosystem, beauty and human livelihood could have been avoided or forestalled if certain measures had been taken right away rather than weeks later. For instance, why wait six weeks to allow those oil skimming ships from the Netherlands to come and help? Are state secrets hidden in the waters of the Gulf?
A student of mine who is from New Orleans also said that it disgusted her that BP brought in hundreds more workers than it normally employs for the space of days during Obama�s visit, and then sent them back home.
One can understand why BP would try to minimize in the press what the overall impact of this disaster will be. They are on the hook. But pretending harms that you caused aren�t there so you won�t get in trouble is what children do. And what irresponsible adults do. I just don�t know whether capitalism creates responsible adults. If money is our only value, then what matters is minimizing the costs of our mistakes. Everything else, including marine life, bird life, wetlands that once gone will never return, beaches, the jobs and livelihood of a huge portion of an entire region, the health of people in that region, all that is of lesser concern.
That is what we are, apparently. And it is disgusting. That, and this, today, make me ashamed to be a human being.
So, like I said, I don't know whether there is an instinct of vengence, or whether violence just thoughtlessly substitutes itself for not knowing what else to do, but I find myself wanting that BP CEO to come to some serious harm. Me, the philosopher of law who believes that law helps us curb what would otherwise be an unthinking return of injury for injury that too easily spirals out into an endless cycle of revenge. I am deadset against the logic of revenge, and yet I find myself walking around the house angrily hoping for the painful death of some late modern capitalist who is probably no better or worse than any of his counterparts.
I guess the problem here is that I also know that there are some things law cannot adjudicate. No amount of punishment could make up for what has gone wrong here. The irresponsibility before the accident, the accident (and let us admit: accidents happen), and the irresponsibility and lying and shifting of blame since the accident. Not only is all of it (save for the accident itself) inexcusable. There can be no adequate compensation for it. It is irredeemable.
Which is not to say that nothing can be done or that BP shouldn�t have to pay EVERYTHING even if it means the destruction of BP.
Perhaps we need a new category of crimes against humanity. Yes, that is what I want right now. Not the violent death of one random CEO. I want BP charged with crimes against humanity.
Of course, knowing how the statutes of crimes against humanity read and what they cover, I�m aware that current interpretations don�t allow for such a thing. But here is the definition of crimes against humanity: they "are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Murder; extermination; torture; rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of falling into the category of crimes under discussion.�
The definition focuses on �odious offences� against human beings, and mostly has to do with circumstances that arise during human conflict. One could argue that the BP disaster can�t be described in such a way. We would need to find a way of valuing life other than human life enough to find widespread offence against it culpable. And possible interpretations of that would scare the shit out of large portions of the farming industry and science establishment.
So, what about this: oil disasters �are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority.�
That seems to work. But then we would have to go so far as to charge capitalism with crimes against humanity! (And maybe we should, I sometimes think.)
So that leads me to the next possibility. Strict liability tort law. A tort is a harm, like when your neighbor�s tree falls on your garage and destroys your garage and car. It is not a criminal offense, but you still deserve compensation, so you bring a tort claim against your neighbor. Most tort law allows justifiable excuses (say the tree fell because your swimming pool leaked and loosened the ground around it) to offer a positive defense. But strict liability tort law means that no positive defense is possible. If a loss was caused, the causer is responsible, period. This is true of anyone using explosives. If you use explosives, you are responsible for anything that happens. The reasoning is that some things are so dangerous that anyone who participates in them must take on the extra responsibility that goes with the use of that dangerous thing. Strict liability tort law. No excuses. BP pays EVERYTHING. No caps on fines. No negotiations.
But tort law is usually between two private parties. It is unclear who the private parties would be in this case. So what we need is STRICT LIABILITY CRIMINAL LAW. That sounds barbaric. It�s like when Oedipus is found guilty of sleeping with his mother and killing his father�it doesn�t matter that he didn�t know what he was doing. Patricide and incest are wrong, and anyone who commits those wrongs is GUILTY, period. Modern understandings of criminal law don�t like that reasoning. They think intent and mitigating factors might sometimes matter. But perhaps when it comes to something as potentially devastating as oil drilling or coal mining, what should be applied is STRICT LIABILITY CRIMINAL LAW. If something goes wrong, whoever was in charge is fucking responsible, no matter how good the intentions may have been. That might change some practices of coal mining and oil drilling. And I wouldn�t have to find myself dreaming of assassination.
Of course, for any of these "innovations" to apply to BP, one would have to offend against one of the main principles of the rule of law, that one can't hold a person responsible for breaking a law that wasn't a law at the time the offense was committed (aka "no ex post facto laws"). So either this would be a kind of law that only held in the future (and that could still really change things), or it would be some Nuremberg-style victor's justice. But big cases like this are when these issues arise. Every form of law is faced with conflicting demands, and judgments must be made. In this instance, is it more important to do justice to the crime, or is it more important to follow the rule against ex post facto laws? There is no rule to tell us when standing rules don't quite cover the case at hand. This is why the capacity for judgment matters!
So, lately, when I watch or read the news, I�m either really angry, or I cry, or I�m stuck in both at once, and it�s not pretty.
And then when I try to escape with the movies, I�m confronted with misogyny, ageism, and other diverse reflections of the incapacity for judgment that seems to define what we are, currently.
Finally, there's the utter lack of fair-mindedness on both sides with reporting about the Israeli raid on the aid flotilla to Palestine. Both sides think one side is the devil, the other an angel. It's just not true, not even in this case (though I do think an aid flotilla full of a wide array of civilians in international waters doesn't need to be aggressively boarded by an elite military unit. Who made that judgment? There are other ways to handle the matter.). I understand feeling strongly in either direction. But everyone talking about it seems to be willing to talk only to those who already agree with them. And that is not communication, nor does it hold out much hope for change.
Not the best week, up here in my mind.
1:29 p.m. - June 05, 2010
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