"Law is Not Morality"

[Ethel mermania]

Morality does inform the framework, for example "private property laws", but basically yes, its a structure of what most of the citizens deem as acceptable conduct within society.

What's the difference between morality on one hand, and 'what most citizens deem acceptable conduct' on the other?

Adultery, for example, it can be against someone's moral code, but its usually not against the law.

[The Free Joy State]

What's the difference between morality on one hand, and 'what most citizens deem acceptable conduct' on the other?

Adultery, for example, it can be against someone's moral code, but its usually not against the law.

I think, where ethics and the law don't coincide, that's the time to look at the harm that happens to individuals.

In the adultery example, it hurts like hell to be cheated on, but it is not injurious to the person's body nor to their long-term life prospects (with the exception of any financial cost to ditching the hypothetical scumbag -- that's where the law could intervene and apportion more financial penalty on the cheating partner, but no criminal charges).

In the instance of slavery, for example, when that was legal, not only did it hurt the spirit of those enslaved, but also their families, their bodies and frequently resulted in shortened lives.

[The Nihilistic view]

The law just reflects the dominant moral code of the time.

[Great Confederacy of Commonwealth States]

What's the difference between morality on one hand, and 'what most citizens deem acceptable conduct' on the other?

Adultery, for example, it can be against someone's moral code, but its usually not against the law.

Yes, because we find it unethical for the state to regulate that sort of behaviour. But that's also part of our view of right and wrong.

[Comerciante]

I'd like it noted that I actually Identify as Chaotic Neutral the law applies to me only so far as it is convenient! I'll toss it aside as soon as it becomes inconvenient.

[Deacarsia]

I have to disagree. I think that, once one strips religion from ethics -- and I am not an atheist -- it is easier to look at what is ethical.

I think it was Socrates who once asked if the commandments of a god were good simply because God had commanded them or good because God recognised what was good and so commanded that they be so. If the first then any action -- whether rape or murder, or those immoral actions I discussed in my first post -- can be argued to be good. If actions are good because God recognises the actions as good, then there is a rational basis for laws, with or without god.

That basis -- those ethics -- remain the same.

I think that it is precisely the opposite: ethics make no sense unless they ultimately derive from a religious foundation.

I am familiar with the Euthyphro dilemma, and I do not accept the notion that goodness exists apart from God. God is the great Unmoved Mover, the Uncaused Cause, and as such all things derive from Him, including morality itself.

I agree with Saint Thomas Aquinas that the problem in fact is a false dilemma. It is not possible to create a real distinction between the goodness and will of God, as He is absolutely simple, and any such distinctions really only exist in our own minds.

I acknowledge your point but do not agree with either your assessment of the characterisation of the proponents or the argument itself. Perhaps I could have put it in a better way but international principles are -- as other laws (when they work) -- protective. In this instance, protective of citizens' against nations' excesses, not -- and I apologise if you somehow got this impression -- only or even primarily non-Western countries (for instance, it is a matter of some comfort to know there is an international organisation watching the current UK government; it would be a matter of greater comfort if they did more than issue strong letters).

I do not argue in favour of international protections because they are "self-evident" but because they are needed. Although I spoke of past abuses (and I expect you will be well aware of this), there are nations in this world where they -- within their national law -- treat their own citizens abominably.

I think that large globalist organizations are more likely to affect than prevent nations from abusing their own citizens. The larger the jurisdiction of a worldy institution, the more dangerous it becomes.

I do agree that many nations abuse their citizens, but I disagree both with the premise that a large, international organization effectively can prevent this and that it is possible to judge rationally the morality of an actor without regard to an ultimate supernatural authority.

As I said earlier, the law should be ethical. The law should be just. Where it is not, the world should not look away.

I agree that the law should be ethical and just, but I do not wish to ascribe the role of international policeman to any institution.

[Major-Tom]

What is the point of a legal system that runs contrary to the widely held beliefs and moral practices/assumptions of the society in which it exists? A legal system that runs counter to cultural and societal norms is always rendered irrelevant and weak.

[Alcala-Cordel]

My philosophy is that we're all insignificant in the face of the universe, but our desire to exist and live good lives is enough of a reason to keep living as we give ourselves significance. For that reason, I think that doing things to harm others is fundamentally wrong because it harms people. I don't need any authority (government, religious group, etc) to tell me what exactly I should see as right and wrong. Other people can change my mind on what exactly is harmful, but my philosophy is my own and I'm okay with that. No gods, no masters, etc

[Jebslund]

Legislating morality is a slippery slope that inevitably leads to the law being used as a cudgel and a means of oppression. The purpose of the law, and therefore its form, should be to protect the rights and, from others, the wellbeing of the citizens. No more, no less. Many morals run parallel to that aim, but many have nothing whatsoever to do with it, and morality is such a subjective thing that it has no place in the legislature.

[Bombadil]

What is the point of a legal system that runs contrary to the widely held beliefs and moral practices/assumptions of the society in which it exists? A legal system that runs counter to cultural and societal norms is always rendered irrelevant and weak.

I think you have to separate things a little here, between the making of a law, which hopefully does reflect the prevailing morals of the time to a degree, or the whims of a dictator if that's the case, and the practice of law, where morality doesn't really need to come into it.

So if there's a law restricting press freedom on the grounds of national security made, that might be in the favour of those in power over the widely held beliefs and moral assumptions of the society in which it exists, one could argue it's moral or not one way or the other.. but in the interpretation of that law, no moral decision needs to be made, you're just applying that law as it's written.

[Mercatus]

I do not think the law is in any way the barometer for morality. If that were so, then me choosing not to wear a seat belt when I’m driving alone would be consider immoral and deeply wrong. What sense does that make? I think there is a legit argument to be had for the idea that breaking the law isn’t always wrong.

[Northern Socialist Council Republics]

No. The law is not morality, and the law should not be morality. Trying to make morality be law is how you get The Handmaid's Tale version of dystopia. Trying to make morality be law is how you get sharia dictatorships. It's how you get Spanish Inquisitions.

What the law primarily does is uphold public order. What it should primarily do, in my opinion, is uphold individual rights and freedoms. Neither has much to do with morality.

[KindaFreeXP]

I think the Law-Morality connection is slightly off. Better would be a Law-Society connection. Law should exist to keep Society alive and well, to help facilitate peace and exist for Society's sake. There is some crossover with Morality, such as not murdering people and not stealing things, but the main goal of Law has always been to keep Society together. It is obviously easy to confuse the two, and of course people will want their own brand of Morality pushed (since, after all, it is their guiding principles). But keeping Society from collapsing is far more important than trying to enforce one's Morality onto others, and the glue that keeps Society from collapsing is Law.

That said, you can, of course, have too much Law. But that is a different topic for a different day.

[Page]

As an anarchist I don't believe in any kind of obligation to obey the law. I acknowledge that the law often aligns with moral imperatives, rape is illegal and morally wrong, but I absolutely do not want to associate with any person who would be even slightly more inclined to be a rapist if not for the law. Law 100% aligned with morality must necessarily be such that if the law was abolished, the behavior of those who strive to uphold their morals would not change.

Of course we must first determine what kind of morality we are striving for. Are we basing our ethical standards on deontology or consequentialism? In the real world, most law is deontological, that there are right and wrong actions and that justice takes precedent over utility. This system has yielded terrible results.

Look at how many people have suffered and died of covid because society refused to empty the jails and prisons. One would think that when we have a virus that spreads from close contact, that you'd release all non-violent prisoners for the sake of saving lives, but no, we would rather someone die a horrible death in jail than let them escape punishment for petty or victimless crimes. And in doing so, we kill not only prisoners, prison guards and cops contract the virus and spread it to law-abiding citizens. Our idea of justice is so rooted in retribution, indeed spite, that we are willing to hurt ourselves to make sure criminals are hurt.

The best we could do toward the goal of having law reflects morality is to change the whole paradigm and root law in utilitarianism. To make it such that the goal of law is to minimizing the suffering and maximize the happiness of all people, victims, perpetrators, and the rest of the community.

I don't want to stray too far from the topic but why do so few people consider that we maybe should just do away with retribution altogether. To never deliberately inflict suffering on anyone no matter what they've done. To make it such that suffering is only a byproduct of necessary measures. If you have a dangerous killer, then they have to be restrained in some way and that will cause suffering, but don't do unnecessary things just to spite them. Solitary confinement as it exists is entirely unnecessary. Even if you have a person who will attempt to kill anyone in the same room with them, you could still do something like installing local phones in cells that can be turned on and off at will so every prisoner has the option to talk to other prisoners at any time. Why not do that? What justification could there ever be for not allowing a prisoner to have as many books as they want? What justification is there for feeding them terrible food and making them sleep on uncomfortable surfaces? There is none. Even the most dangerous homicidal person in the world could be given comforts that minimize their suffering without compromising the security of everyone else. Abolish retribution altogether, restrict the freedom of dangerous people only to the minimum extent it takes to keep everyone else safe, and don't incarcerate non-dangerous people at all ever.

That would be a better system of justice, to strive for maximum utility at all times, to never subject anyone to unnecessary suffering.

[Northern Socialist Council Republics]

I don't want to stray too far from the topic but why do so few people consider that we maybe should just do away with retribution altogether. To never deliberately inflict suffering on anyone no matter what they've done. To make it such that suffering is only a byproduct of necessary measures. If you have a dangerous killer, then they have to be restrained in some way and that will cause suffering, but don't do unnecessary things just to spite them. Solitary confinement as it exists is entirely unnecessary. Even if you have a person who will attempt to kill anyone in the same room with them, you could still do something like installing local phones in cells that can be turned on and off at will so every prisoner has the option to talk to other prisoners at any time. Why not do that? What justification could there ever be for not allowing a prisoner to have as many books as they want? What justification is there for feeding them terrible food and making them sleep on uncomfortable surfaces? There is none. Even the most dangerous homicidal person in the world could be given comforts that minimize their suffering without compromising the security of everyone else. Abolish retribution altogether, restrict the freedom of dangerous people only to the minimum extent it takes to keep everyone else safe, and don't incarcerate non-dangerous people at all ever.

While I am not an anarchist and I disagree with most of Page's stances, this part makes intuitive sense to me and I have also questioned for some time why this isn't a more widespread view.

I ultimately don't believe in "justice". To me the only justification for doing something is if real people will really benefit from doing it. Who benefits from punishing criminals? Will punishing a murderer make their victim any less dead than they would be if the murderer is merely isolated instead? If not, then by what justification exists punishment?

[The Nihilistic view]

I do not think the law is in any way the barometer for morality. If that were so, then me choosing not to wear a seat belt when I’m driving alone would be consider immoral and deeply wrong. What sense does that make? I think there is a legit argument to be had for the idea that breaking the law isn’t always wrong.

If you are an orphan perhaps with no family, otherwise any current or potentially future dependents make it a morally questionable act.

[Mercatus]

I do not think the law is in any way the barometer for morality. If that were so, then me choosing not to wear a seat belt when I’m driving alone would be consider immoral and deeply wrong. What sense does that make? I think there is a legit argument to be had for the idea that breaking the law isn’t always wrong.

If you are an orphan perhaps with no family, otherwise any current or potentially future dependents make it a morally questionable act.

If I build a machine gun in my garage with the simple intent of having fun on my property, despite the fact that such is illegal, is that morally wrong or questionable?

[Ethel mermania]

As an anarchist I don't believe in any kind of obligation to obey the law. I acknowledge that the law often aligns with moral imperatives, rape is illegal and morally wrong, but I absolutely do not want to associate with any person who would be even slightly more inclined to be a rapist if not for the law. Law 100% aligned with morality must necessarily be such that if the law was abolished, the behavior of those who strive to uphold their morals would not change.

Of course we must first determine what kind of morality we are striving for. Are we basing our ethical standards on deontology or consequentialism? In the real world, most law is deontological, that there are right and wrong actions and that justice takes precedent over utility. This system has yielded terrible results.

Look at how many people have suffered and died of covid because society refused to empty the jails and prisons. One would think that when we have a virus that spreads from close contact, that you'd release all non-violent prisoners for the sake of saving lives, but no, we would rather someone die a horrible death in jail than let them escape punishment for petty or victimless crimes. And in doing so, we kill not only prisoners, prison guards and cops contract the virus and spread it to law-abiding citizens. Our idea of justice is so rooted in retribution, indeed spite, that we are willing to hurt ourselves to make sure criminals are hurt.

The best we could do toward the goal of having law reflects morality is to change the whole paradigm and root law in utilitarianism. To make it such that the goal of law is to minimizing the suffering and maximize the happiness of all people, victims, perpetrators, and the rest of the community.

I don't want to stray too far from the topic but why do so few people consider that we maybe should just do away with retribution altogether. To never deliberately inflict suffering on anyone no matter what they've done. To make it such that suffering is only a byproduct of necessary measures. If you have a dangerous killer, then they have to be restrained in some way and that will cause suffering, but don't do unnecessary things just to spite them. Solitary confinement as it exists is entirely unnecessary. Even if you have a person who will attempt to kill anyone in the same room with them, you could still do something like installing local phones in cells that can be turned on and off at will so every prisoner has the option to talk to other prisoners at any time. Why not do that? What justification could there ever be for not allowing a prisoner to have as many books as they want? What justification is there for feeding them terrible food and making them sleep on uncomfortable surfaces? There is none. Even the most dangerous homicidal person in the world could be given comforts that minimize their suffering without compromising the security of everyone else. Abolish retribution altogether, restrict the freedom of dangerous people only to the minimum extent it takes to keep everyone else safe, and don't incarcerate non-dangerous people at all ever.

That would be a better system of justice, to strive for maximum utility at all times, to never subject anyone to unnecessary suffering.

You completely ignore the victim. How does any of this make the victim whole? Rehab, while a good idea is not justice.

[Great Confederacy of Commonwealth States]

As an anarchist I don't believe in any kind of obligation to obey the law. I acknowledge that the law often aligns with moral imperatives, rape is illegal and morally wrong, but I absolutely do not want to associate with any person who would be even slightly more inclined to be a rapist if not for the law. Law 100% aligned with morality must necessarily be such that if the law was abolished, the behavior of those who strive to uphold their morals would not change.

Of course we must first determine what kind of morality we are striving for. Are we basing our ethical standards on deontology or consequentialism? In the real world, most law is deontological, that there are right and wrong actions and that justice takes precedent over utility. This system has yielded terrible results.

Look at how many people have suffered and died of covid because society refused to empty the jails and prisons. One would think that when we have a virus that spreads from close contact, that you'd release all non-violent prisoners for the sake of saving lives, but no, we would rather someone die a horrible death in jail than let them escape punishment for petty or victimless crimes. And in doing so, we kill not only prisoners, prison guards and cops contract the virus and spread it to law-abiding citizens. Our idea of justice is so rooted in retribution, indeed spite, that we are willing to hurt ourselves to make sure criminals are hurt.

The best we could do toward the goal of having law reflects morality is to change the whole paradigm and root law in utilitarianism. To make it such that the goal of law is to minimizing the suffering and maximize the happiness of all people, victims, perpetrators, and the rest of the community.

I don't want to stray too far from the topic but why do so few people consider that we maybe should just do away with retribution altogether. To never deliberately inflict suffering on anyone no matter what they've done. To make it such that suffering is only a byproduct of necessary measures. If you have a dangerous killer, then they have to be restrained in some way and that will cause suffering, but don't do unnecessary things just to spite them. Solitary confinement as it exists is entirely unnecessary. Even if you have a person who will attempt to kill anyone in the same room with them, you could still do something like installing local phones in cells that can be turned on and off at will so every prisoner has the option to talk to other prisoners at any time. Why not do that? What justification could there ever be for not allowing a prisoner to have as many books as they want? What justification is there for feeding them terrible food and making them sleep on uncomfortable surfaces? There is none. Even the most dangerous homicidal person in the world could be given comforts that minimize their suffering without compromising the security of everyone else. Abolish retribution altogether, restrict the freedom of dangerous people only to the minimum extent it takes to keep everyone else safe, and don't incarcerate non-dangerous people at all ever.

That would be a better system of justice, to strive for maximum utility at all times, to never subject anyone to unnecessary suffering.

You completely ignore the victim. How does any of this make the victim whole? Rehab, while a good idea is not justice.

How does punishment help the victim?

[Ethel mermania]

You completely ignore the victim. How does any of this make the victim whole? Rehab, while a good idea is not justice.

How does punishment help the victim?

Shows a consequence for the harm caused to them. Protects them from being taken advantage of by the criminal. Satisfies their need for revenge.

[Punished UMN]

No. The law is not morality, and the law should not be morality. Trying to make morality be law is how you get The Handmaid's Tale version of dystopia. Trying to make morality be law is how you get sharia dictatorships. It's how you get Spanish Inquisitions.

What the law primarily does is uphold public order. What it should primarily do, in my opinion, is uphold individual rights and freedoms. Neither has much to do with morality.

In the absence of morality, one has to ask the uncomfortable question of why it is necessary to uphold individual rights and freedoms.

[Northern Socialist Council Republics]

In the absence of morality, one has to ask the uncomfortable question of why it is necessary to uphold individual rights and freedoms.

Hmm... I suppose. I guess I said that without having a clear idea of what I understand to be morality.

[Forsher]

If you are an orphan perhaps with no family, otherwise any current or potentially future dependents make it a morally questionable act.

If I build a machine gun in my garage with the simple intent of having fun on my property, despite the fact that such is illegal, is that morally wrong or questionable?

Let's say you don't intend on murdering anyone ever. Is it necessary to have a law against murder?

I rather suspect your answer to that question is "yes".

Now, let's suppose that we earnestly believe that allowing you to build a machine gun and use it on your own property won't lead to bad actors affecting other people through their use of a machine gun (e.g. noise pollution, murder). Would it then be moral for us to say "yes, this is a thing that people can do?"

Well, yes, but we'd be complete fucking idiots if we believed that.

As I often think (and possibly say) the limits of the possible, define the limits of the moral. Making law (or policy) based on idiotic theories of behaviour isn't moral.

Adultery, for example, it can be against someone's moral code, but its usually not against the law.

I think, where ethics and the law don't coincide, that's the time to look at the harm that happens to individuals.

In the adultery example, it hurts like hell to be cheated on, but it is not injurious to the person's body nor to their long-term life prospects (with the exception of any financial cost to ditching the hypothetical scumbag -- that's where the law could intervene and apportion more financial penalty on the cheating partner, but no criminal charges).

In the instance of slavery, for example, when that was legal, not only did it hurt the spirit of those enslaved, but also their families, their bodies and frequently resulted in shortened lives.

If people actually thought adultery was a Very Bad Thing, why shouldn't it be illegal? (Remember, in answering this, you must pretend that you do think adultery is abhorrent.)

There is no inherent reason why people wouldn't say "well, this sense of betrayal is just as bad", it's just that we, in this time and place (i.e. the contemporary West), don't. We, but it is us, argue that slavery is much, much worse than adultery. By the way we think, coming to any other conclusion would be very odd, but it is not guaranteed... there is no objective measure of harm that we can refer to.

It is illegal, in many countries, to harvest organs from corpses for the purpose of organ donation without explicit permission (of the corpse when it was alive, or its living family.. in some cases, the corpse's living wishes matter less than the family's). Do we really think that this is morally worse than adultery? I don't, but a lot of people do. Do we really imagine the harm caused by opt-out organ donation to be more than that caused by adultery? I don't, but a lot of people do. And, yet, adultery is legal but this kind of organ harvesting isn't.

It seems to me that views on harm are related to, if not morality, certainly social norms and, in that sense, it's really a moral view that "this level of harm is too small to justify state action" rather than "adultery is immoral" that is causing the difference. Which is how I understand Great Confederacy of Commonwealth States' point.

[Alcala-Cordel]

In my opinion it is somewhat shallow to have no sense of morality without some higher code. Shouldn't we all have an inner idea of what's right and what's wrong?

[Kowani]

The law does not reflect morality so much as it reflects power.
This can be seen firstly in the uneven application of it-where the enforcers of it are deployed, what punishments are applied to what people, and who is protected from its grasp. Consider the case of Anna Chronis.
In 2015, Chronis went to the University of Illinois Mile Square Health Center for a pap smear. Afterwards, she experienced pain and bruising. She claimed that she attempted to get in touch with the doctor she had seen, but could not get the Health Center to return her calls or let her make a follow-up appointment. So, like a normal person, she filed a complaint with the Health Center’s grievance committee “requesting $332 for the expenses that she incurred because of the injury.” The committee denied her claim, because of course they did. But she didn't give up. She wrote to the Centres for Medicare and Medicaid Services, part of the Department of Health and Human Services, which parially funded the Health Center, requesting assistance in gaining “restitution” and attaching 60 pages of documents showing her correspondence with the Health Center. Unsatisfied with the responses she had received-and the lack of $332-Chronis sued under the Federal Tort Claims Act.

The Seventh Circuit panel found that Chronis’ case needed to be dismissed on the grounds that she "hadn’t followed the correct procedure"-because her letter to CMS had not explicitly said that she wanted $332, referring only to “restitution." This meant she had not demanded a “sum certain.” Therefore, in court's eyes, she had not exhausted her “administrative remedies,” so she could not come to court. They conceded that Chronis could have had no idea she needed to do this, because Chronis was operating “pro se” (without an attorney) and “even an experienced medical malpractice lawyer” might not have realized that under the Federal Tort Claims Act, CMS themselves might have legal liability for the actions of the University of Illinois Health Center. But even though Chronis could not have known what the procedure was, she violated it, therefore her case needed to be dismissed.

I believe it is necessary to quote the dissent here.

Chronis, a pro se plaintiff, knew little about the complicated legal world of suing the federal government. She was simply looking for a solution to her problem. She alleged that she had been harmed during a medical appointment at a health center that receives federal funds. She looked for a solution by repeatedly telephoning the doctor whom she alleged harmed her, but that doctor did not help, and indeed did not return any of her numerous calls… She made calls to employees at the health center that employed the doctor, but they would not help… She made several written complaints to the health center’s grievance committee, but it would not help… She filed an appeal with the Illinois Department of Healthcare and Family Services, but it did not help… She mailed a submission to the Centers for Medicare and Medicaid Services (CMS), a federal administrator of the Medicaid Program, but it simply referred her to the Illinois Department of Financial and Professional Regulation… She filed a professional regulation complaint with the Illinois Department of Financial and Professional Regulation, but there is no record of any response… She filed a malpractice claim in state court, but the United States told her that was the wrong place too, and removed the case to federal court. And then, finally, the federal court told Chronis that, after all those calls, steps, letters, claims, and complaints, she had not given the government notice in the proper manner and it too would not help. [...] Modern litigation contains so many traps and barriers that it is near to impossible for non-lawyers to successfully navigate it. Despite Chronis’ valiant and persistent efforts, the majority finds that she failed to say the magic words in the correct format and in the correct place, and therefore the sophisticated steam shovel rolled right over her, as it will other injured pro se plaintiffs who cannot afford to hire lawyers to recover small sums.[...] According to the government, and now the majority opinion, however, this was not enough: Chronis did not ask in the proper way.6 She did not state that she sought “money damages” in a sum certain. Instead, she said “I re‐quest your assistance … in receiving the restitution.” And the amount of that restitution that she sought was not in the letter itself, but in an attachment to the letter

The morality of this case, to me, appears clear.
But that's not what I want to talk about. Rather, it is the way that law is constructed and construed to protect powerful interests from any hint of challenge. This was not a landmark case, there was nothing of "state secrets" involved. It was one woman in Illinois who wanted $322 because of a bad gynecologist.

For that matter, understand the way in which the enforcers of the law act in the interest of corporations.

Donziger is a human rights lawyer who, for more than 27 years, has represented the Indigenous peoples and rural farmers of Ecuador against Texaco—since acquired by Chevron—which was accused of dumping at least 16 billion gallons of toxic waste into the area of the Amazon rainforest in which they live. Cancer is now highly prevalent in the local population. Some have called it the "Amazon Chernobyl." They first filed suit in New York in 1993, but Texaco lobbied, successfully, to move the proceedings to Ecuador. In 2011, the team of Ecuadorian lawyers Donziger worked with won the case, and Chevron was ultimately ordered to pay $9.8 billion.

But for Donziger, that was nowhere near the end. Chevron, a $260 billion company, went to a New York federal court to sue him under a lesser-known civil—non-criminal—provision of the Racketeering Influenced and Corrupt Organizations (RICO) Act. They later dropped their demands for financial damages because it would have necessitated a jury trial. That is something Donziger has been unable to get. Instead, Judge Lewis A. Kaplan, a former corporate lawyer whose clients included tobacco companies, became Donziger's judge-and-jury in the RICO case. He heard from 31 witnesses, but based his ruling in significant part on the testimony of Albert Guerra, a former Ecuadorian judge whom Chevron relocated to the U.S. at an overall cost of $2 million. Guerra alleged there was a bribe involved in the Ecuadorian court's judgement against Chevron. He has since retracted some of his testimony, admitting it was false. But Kaplan, who refused to look at the scientific evidence in the original case, ruled the initial verdict was the result of fraud. And he didn't stop there. He ordered Donziger to pay millions in attorneys fees to Chevron and eventually ordered him to turn over decades of client communications, even going after his phone and computer. Donziger considered this a threat to attorney-client privilege and appealed the ruling, but while that appeal was pending, Kaplan slapped him with a contempt of court charge for refusing to give up the devices. When the U.S. Attorney for the Southern District of New York declined to prosecute the case, Kaplan took the extraordinary step of appointing a private law firm to prosecute Donziger in the name of the U.S. government. The firm, Seward & Kissel, has had a number of oil-and-gas clients, including, in 2018... Chevron. Kaplan bypassed the usual random case-assignment procedure of the federal judiciary and handpicked a judge to hear the contempt case: Loretta Preska, a member of the Federalist Society, among whose major donors is... Chevron. Preska has, like Kaplan, rejected Donziger's requests to have his trial heard by a jury of his peers. Both judges declined Esquire's request for comment on Donziger's cases, citing court policy.

At this point, the details of Chevron's conduct in the Amazon are very far in the rearview. So are the allegations against Donziger with respect to his conduct in the initial case, though he has been disbarred based on Kaplan’s ruling. (A "special referee" appointed by the Supreme Court of New York, John Horan, found his law license should be reinstated, although the Appellate Division rejected those findings and that matter is still on appeal.) The question at hand is whether he should have an ankle bracelet on. On March 10, 2021, he went before a three-judge panel to argue for his release from pre-trial detention before the same appellate court that has largely rejected his prior appeals in the case. Their ruling on the pending appeal could come down any day now. In the meantime, in a conversation below edited for length and clarity, this is Donziger's side of the story.

In a lengthy statement emailed to Esquire, a Chevron spokesman said the company is not involved in the pending criminal case against Donziger and disputed his narrative about the case in Ecuador as well as the legal proceedings that have followed. Chevron noted that Judge Kaplan’s finding that the judgment against it in Ecuador was obtained by fraud was affirmed by the federal court of appeals and that the Supreme Court also declined to overturn the finding. “As he has for decades, Donziger is trying to shift attention away from the facts,” the spokesman said. [...] So first of all, they refused to pay the judgement, right?

As the case was coming to an end in Ecuador, Chevron's lawyers and executives made it clear they would never pay the judgment. They sold their assets in Ecuador, so the Ecuadorians would have nothing to collect. They threatened the Indigenous peoples with “a lifetime of litigation” if they didn't drop their case. They also started to attack Ecuador's judicial system. And they got a witness up to New York, who accused you of fraudulent behavior in relation to the case?

Chevron knew that the evidence against them was overwhelming, and they were going to lose the Ecuador case. So they tried to come up with a strategy to block enforcement of the Ecuador judgment against their assets in other countries. To do that, they needed to somehow allege that the judgment in Ecuador was the product of fraud. The way they did that is they paid a former Ecuadoran judge, moved his family to the United States, paid his income taxes. Their lawyers coached him for 53 days. And ultimately he came into federal court and testified I approved the bribe of a trial judge in Ecuador.

And he’s since recanted this?

He has recanted most of his testimony. He's admitted that he has repeatedly lied in U.S. federal court. He admitted under oath. He's thoroughly discredited. However, the U.S. judge who Chevron took the case to, without a jury, has credited his testimony. But no other court has. The overwhelming majority of courts around the world that have heard the case have validated the Ecuador judgment. That includes Ecuador's supreme court, Ecuador's Constitutional Court. They have all validated the judgment, either on the merits or for enforcement purposes. The only public judge in the world who has ruled the case was a fraud was a U.S. trial judge named Lou Kaplan. However, in his case there was no jury, and he clearly was biased against me and the Ecuadorians. He also refused to consider any of the environmental evidence that the Ecuadorian court relied on to find Chevron liable. So he was purporting from his Manhattan trial court to overrule Ecuador's supreme court, without even looking at the evidence that Ecuador's supreme court relied on to uphold the judgment.

He issued a judgment against me and my clients claiming that the judgment in Ecuador was obtained by fraud. He then barred us from trying to enforce that judgment against Chevron in the United States. But I mean, Chevron operates in a hundred countries, so that doesn't solve Chevron's problem. The judgment is being enforced in other countries outside the United States. Not by me, but by other lawyers. Once he ruled you behaved improperly in the initial case, is that when he moved to demand your computer and phone?

Kaplan ruled in 2014 that the judgment was obtained by fraud. In the meantime, six other appellate courts in other countries like Ecuador and Canada ruled that it was valid. That then became a battle between Kaplan's judicial authority and the judicial authority of Ecuador and Canada. When the Canadian Supreme Court ruled in our favor in 2015, Chevron, I think, felt real financial risk in Canada, where the company has billions of dollars of assets. So they came back to Kaplan, and he imposed millions of dollars of cost orders on me without a jury. Basically forcing me to pay Chevron's court costs for this unjust prosecution. And when I couldn't come up with the money, they then got him to order me to turn over my computer and cell phone to Chevron on the theory that they were going to look through my devices to see if I was hiding any money, which they knew was preposterous.

That implicated my ethical responsibilities to my clients to preserve privilege issues, so I appealed that order. Judge Kaplan, after I appealed it, charged me with criminal contempt for not complying with the order. This is very significant. There's never been, as far as my team can tell, a single lawyer in U.S. history who's ever been charged with criminal contempt for doing what I did, which is basically disputing a discovery order. Never happened before.

Now, once he charged me, he was obligated by law to take the charges to the U.S. Attorney's Office for the Southern District of New York. They declined to prosecute me, which I think is very notable and telling.[...] So Kaplan, rather than let it sit, then appointed a private law firm to prosecute me in the name of the public. The law firm had a client relationship with Chevron, as well as extensive financial ties to the oil and gas industry. I learned this seven months later. In the meantime, on the first day of the case, when I came in to appear without a lawyer, they put me on an ankle bracelet. It's a misdemeanor charge. I'm the only person in the entire country held on a misdemeanor pre-trial. Misdemeanors with no record never get prison time in America. Especially now, during COVID.

So it's really an extraordinary situation that's unprecedented. One day turned into two turned into 100. I'm now, [on March 11, 2021] at 583 days, in a case where a maximum sentence is 180 days if I were to be convicted, and I have not had a trial yet.

Not only would it be unusual for you to get a bracelet and a sentence if you were convicted, you haven't actually been convicted. You haven't had a trial.

That's exactly right. Judge Kaplan also bypassed local rules requiring random assignment of cases, and he appointed the judge. The judge is a woman named Loretta Preska, who's a proud and prominent member of the Federalist Society, to which Chevron is a major donor. She's denied me a jury trial. She has signaled that she thinks I'm guilty, even though we haven't had a trial yet, which is why she's locking me up. I simply cannot get a fair trial. I’m facing prison, and I cannot get a jury of my peers.

And for those who abuse their power, there is nothing.
A prosecutor can hide evidence to get an innocent man imprisoned for 18 years-and not only will the state fight to prevent compensation after innocence is proven, it will appoint the prosecutor to the State Supreme Court. A prosecutor can falsify a confession, and see no penalty. Judges can run an illegal bail profit scheme for decades-despite having been found to have violated both state and constitutional law-and their penalty will be passed on to the county where they work. Prison guards can split a man's skull with a meat cleaver, stomp on him while he's unconscious, and then attack him again while he's handcuffed in a wheelchair in the prison hospital-and the price they pay is having to wear bodycams.

But these are all outcomes of law. Courts and governments invent whole doctrines out of cloth in order to protect the interests of the powerful and sanitize it in fancy language. "Abstention", "sovereign immunity", "absolute immunity", "qualified immunity", "mootness", "standing", "state secrets"-these are never created in defense of the poor or even the average citizen. They're created to prevent the state (and its enforcers) from being held accountable by their victims in the only manner of redress they have.