Judging With Wisdom

Just up the road from me, in the Queen City of Charlotte, North Carolina, the barbecue is fine and the IKEA is prominent. It's a fine place to live. The best part about living there is that its rulers are noble and wise, mingling with the people and understanding their needs, as the best rulers do.

Take, for example, Albemarle Road Presbyterian Church. According to the Charlotte Observer, they're being fined $4,000 ($100 per branch) for "excessive pruning" of their crape myrtles. The government of Charlotte appears to take its trees very seriously.
'Charlotte has had a tree ordinance since 1978, and when trees are incorrectly pruned or topped, people can be subject to fines, Johnson said.
Trees planted as a result of the ordinance are subject to the fines if they are excessively trimmed or pruned. These include trees on commercial property or street trees. They do not include a private residence.
"The purpose of the tree ordinance is to protect trees," Johnson said. "Charlotte has always been known as the city of trees. When we take down trees, we need to replace these trees."
Individuals who would like to trim their trees should call the city foresters to receive a free permit to conduct the landscape work.
Foresters will then meet with the person receiving the permit and give instructions on how to properly trim their trees, Johnson said.'
Although I have some strong conservative tendencies (I am registered as an independent), I'm no libertarian. I do believe that all this assumption of power by the federal government is not what we signed up for, but I have no problem with strong, let's call 'em "robust", laws at the local/city levels. In fact, if laws should be strong anywhere, they should be strong at the local level, where rulers have to look their subjects in the eyes before they do them wrong.

I grew up in the town of Gainesville, Florida, which bragged of being Tree City USA seven years running. And of course, that doesn't come by accident. No buildings over five stories (I believe it was) were allowed for years and years. Commercial property developers had stringent demands placed on them regarding greenery. Every apartment complex had wooded areas on their property in compliance with local law. When Wal-Mart was finally allowed to build in Gainesville, they had to agree to build a "green area" that included playgrounds and parks. The result was that I could climb to the top of Ben Hill Griffin stadium at dawn and look north, where 100,000 people lived, and see a forest. The people of Gainesville valued this, and their leaders gave them this. Sure, there was plenty of argument about whether or not it would be better bring Wal-Mart in as soon as they wanted, or to do what actually happened, which was to make Wal-Mart dance a jig for three or four years. That's a legitimate argument. But the important thing was this: the bureaucrats making Wal-Mart do a dance were in touch with their people. The laws were very robust, perhaps too much so, but they were local, and they were responsive to the people.

The Charlotte Observer article was featured on The Drudge Report, so I would not be surprised to see the city of Charlotte backtrack due to the publicity. But they might not. And let's face it, the church will be fine. Having been on staff at a mid-size Presbyterian church, I'm pretty sure that even if the fine puts a significant dent in the year's budget, they'll be fine. Presbyterian churches are for white middle class types, so they'll handle it fine. This isn't persecution by any means (well, probably not. If it is, it's wonderfully petty).

It is stupid, though.
"We are trying to be pro-active and not trying to fine people excessively."
Well, quit trying. Just do it. It's not difficult, if you have the right view of the law. Judges and bureaucrats, and indeed all Americans, have an increasingly skewed view of what justice and law are and ought to be. Increasingly justice becomes disconnected from the reality on the ground. What a judge is supposed to do, in this view of the world, is be a Justice Computer. These are the rules; here are the transgressions; these are the penalties laid out; bailiff please.

Judges aren't supposed to allow any emotion. Nor are they supposed to have a pre-determined stand on a particular issue. Taken together, we mean that a judge can't show any wisdom. Just the facts, m'am. Here's a pretty typical view of what a judge should be I found at a county court website from Iowa.
"A judge has the First Amendment right to free speech, but if a judge announces a position on an issue, the judge’s impartiality may be called into question. If this occurs, the judge may need to decline presiding over any case that involves that issue."
Alfred The Great
Justice shouldn't be completely blind. Nor should it be neutral. That's an Enlightenment idea; a French idea. We still hold on to a personal justice a little bit, instinctively: we think of "extenuating circumstances". Maybe a judge give a kid who had a terrible upbringing a break; maybe an inspector tells the construction crew to get over to the office and get a permit now, instead of writing a ticket on the spot.

And that's where wisdom needs to come in. The rule of law doesn't maintain its integrity when we respond to the law as if we were robots or slaves. The most important thing about law is not whether it is strong or weak, intrusive or no; the important thing is that it be wise. The rule of law maintains its integrity (and its historical integrity within the context of Christian Anglo-Saxon law) when it is remembered that it is a human thing. And it is best when it is a compact, not something forced from above.

The below is from that completely reliable of sources, wikipedia:
"The Anglo-Saxon legal system cannot be understood unless one realizes the fundamental opposition between folk-right and privilege. Folk-right is the aggregate of rules, formulated or latent but susceptible of formulation, which can be appealed to as the expression of the juridical consciousness of the people at large or of the communities of which it is composed. It is tribal in its origin, and differentiated, not according to boundaries between states, but on national and provincial lines."
In other words, it's human. We happily stand within that tradition of law, with its the history of reinforcement and change behind it, we still remain a generally law-abiding people, who consider the law something of our own, and laugh at people like Tom Johnson when they fine a church with no history for pruning their own trees.

But this is less and less so. Our ideal is of the judge and the law as machine; conservatives cry out for it, begging for a "literal" interpretation of the Constitution. And while I certainly don't hold any truck with crazy political judges, viewing the law in this way ends at best with the law becoming something to be gotten around (i.e. Latin America), and at worst an instrument of pure oppression (i.e. Burma). It is no longer a trusted compact of the people, with the wisest among its own people being raised to be judges.

This Johnson bureaucrat is being unwise, which is being foolish, which is being stupid. That is what we are all becoming. We don't engage with our world, and we become stupid. And we choose people just like us to run our affairs. We bring this on ourselves.