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Joe put his arm around Nam in the hallway before they entered the courtroom, and tried to be cheerful. "How is my draft dodger friend doing today?
"I don't think I'm a draft dodger," Nam corrected him. "A draft dodger illegally evades the draft. I am not evading, but applying for conscientious objector status. That makes me a draft resister, I believe."
Joe leaned closer to whisper, "But you might evade it illegally if you have to, right?"
"Hell, yes!" Nam laughed.
The judge asked Nam to rise.
"Mister Nam Modeerf, I understand that you are not a pacifist, nor are you against all war in general. Is that correct?"
"Yes it is."
"Then you have no basis for conscientious objector status. Do you realize that?"
"I understand that the law is written this way."
"Then what do you hope to accomplish here?"
"I hope to gain my freedom, which I have a right to."
"Okay, that seems clear enough, but on what legal basis do you hope to accomplish this? A man can forfeit his freedom when he breaks the law, and by refusing to serve in the army when you were drafted, you broke the law."
"Some laws are made to be broken, aren't they? Over the years we have had laws that allowed slavery, denied people of different races the right to marry, and many others that were later recognized to be wrong."
""Later recognized" is the important point though, isn't it Mister Modeerf? Until the law is changed a man doesn't have the right to break it."
"Doesn't he? If a man has an inherent right to liberty, and the law denies him his freedom, does he no longer have that right until he can change the law? Let me ask you personally: If slavery were still legal would it actually be a crime in your mind if a slave escaped to freedom and so broke the law?"
"An extreme example, and perhaps not relevant to this case, but no, I don't think it would be a crime in a philosophical or moral sense."
"It is directly relevant to this case, your honor. For what else is this but an attempt to enslave me and put me in harms way for purposes other than my own?"
"Some would say that it is your duty as a citizen."
"Is it? Did I sign some contract? Does my life belong to the collective, as believed by communists, or do I have the right to it? Isn't it obscene to enslave people in the name of freedom?"
"And you would never fight for your country?"
"Certainly I would defend my home and the land I live in, but this isn't about that. We have not been invaded. This is a war about what politicians like to call "strategic interests," which means it seems economically and politically profitable to them. The draft is just a convenience for the sake of unecessary wars. Any country worth defending will find all the volunteers it needs when defense is necessary. But the real point, again, is that as humans we have rights, and violating those rights in the name of protecting them is dishonest, hypocritcal and wrong."
The judge leaned back in his chair and sighed. "I understand what you are saying, Mister Modeerf. But the law is the law."
"I understand what you are saying, your honor, and I know that you can't rewrite the law. However, you do have the discretion to give me conscientious objector status, to find me not guilty, or to find me guilty and suspend the sentence. In other words you have the ability to recognize my right to liberty, and to protect that right or at least not violate it."
"That assumes I agree with your argument."
"I do assume that, because you appear to have a good mind. If you send me to war, in what way are you not culpable in this crime against me? The saying, "I am just doing my job" is the excuse used by executioners and concentration camp workers. And yes those examples are relevant too - I am being sent to fight and possibly die in a war, not to clean windows!"
"Well, we both understand that. Is there more you wish to say?"
"Yes. How many people still alive today wish they had been on the right side with Martin Luther King? Or wish they hadn't helped to round up our own citizens who happened to be Japanese, and then steal their busineses and put them in concentration camps during World War Two? I can tell you that history will look on those who force others to die for their purposes - whatever they may be - as criminals. Don't take part in the process!
"This is a chance for you to be on the right side of history. I have hurt nobody, and I ask only for my rightful freedom. If you send me off to die, or put me into your jail, you will not sleep well tonight - and you shouldn't! I'm asking you to do the right thing."
There was silence.
The judge leaned forward, and rested his hand on the gavel. "I have to admit that I am moved by your argument, Mister Modeerf, but I wish it was more of a legal argument than the philosophical and emotional one it appears to be. I find you guilty of evading the draft, and release you on your own recognisance until sentencing tomorrow morning at nine a.m."
His mother hugged him. Joe put his hand on his back. The few other witnesses in the courtroom filed out somberly. His father wasn't among them.
Nam didn't sleep well. He spent the evening packing his belongings into boxes, because he didn't know if he would be returning to the apartment anytime soon. Joe came over to help him.
"Are you still sure you made the right choice? Sometimes I think you just like to argue."
"Look, I know that I argue too much. I DO like to argue. But I also like to live, and, by the way, I don't want to kill people for no good reason. And whether or not I like to argue, I believe what I am saying or I wouldn't say it."
"Oh, I know that." He started to pull books off the shelves and put them into boxes. "So what about your father. When are you going to forgive him?"
"Already have."
"Really?"
"People do what they feel they have to at the moment. I long ago accepted the fact that even the best of people can do terrible things. You don't have to excuse the crime to care about the criminal."
There were more people in the
court than the day before. They rose to their feet when the judge
came in, then returned to their seats. They were restless and
whispering. The court was called to order.
The judge cleared his throat and motioned for Nam to stand up.
"Mr Modeerf. My great great grandfather was a slave in North Carolina. When he escaped to the north and was later captured, he was returned to his "owner" as the law required. Obviously, I know something about unjust laws. I cannot imagine that a good and honest man, were he a judge looking at my great great grandfather, would have enforced that law. The law was not only wrong, but morally wrong in its intentions.
"In this case, I have come to agree with you that the law is unjust. Apart from the morally suspect idea that one should be enslaved to fight for freedom, it has also resulted in further injustices in practice. Those with money have historically been able to avoid the draft, for example, while the poorer classes serve. I do not think, however, that the intent of the law is morally wrong. The intent is clearly to defend the country, nothing more, despite how the draft may be used at times. So this is not a case where I feel compelled to ignore the law.
"Now, I find your actions to be against the law, but I also find your arguments compelling. There are some who would say that you have a duty to society in this case, but I have to agree with you that it is precisely that concept of society having a claim on your life that the founders of this country refuted. Your life is your own. Your liberty is not by permission of this or any other government, but your inherent right.
"However, perhaps you have heard of the concept of a "social contract." Even a free man must associate with others in a society, unless he chooses to live alone on an island. For that association to work, and that society - with all of its benefits - to survive, the members must join together as necessary to defend themselves. In this regard, there is perhaps an implicit contract between members of society.
"You have rights, yet is it fair to have those rights protected soley at another's expense? After all, you do benefit from the protections provided by this society, by way of this government. An implicit "social contract" seems like a reasonable basis for requiring some participation in defense of the country.
"That being said, I do believe that you would defend this country when and if you perceived it to be threatened. Furthermore, if any responsibilty for doing so is on the basis of the implied contract I am suggesting, then I would have to see this as a civil matter, rather than criminal, when you violate that social contract.
"Unlike criminal law, civil law allows only for financial penalties, and the taking of property. It cannot be used to take away fundamental rights, like liberty, or freedom of speech. In this case, I can find no precedent for the government to sue you for failure to perform under the terms of a "social contract." Futhermore, since such a contract, if it exists, is as yet poorly defined, such a suit could not be pursued justly."
He paused and took a breath.
"I find you guilty of evading the draft. I hope that you and others will someday change the law, for I agree with much of what you have said. However, I cannot refuse to enforce all laws I hope to see changed. And though I might do so in the case of a law of bad intention, this isn't such a law in my mind.
"What I can do, because I believe the law is mis-applied, or rather poorly drafted, is exercise my discretion in sentencing. I sentence you to one night in prison, with credit for time served. You are free to go."
His mother gave hig a big hug, with tears in her eyes. Joe walked with him to the car. Nam still looked troubled.
"What's wrong Nam?" Joe asked.
"I do participate in the defense of the country. If the government would fight the right wars and pay enough, they would always have enough men and women enlisted, right?" He didn't wait for an answer.
"And who pays for that? I do. I pay my taxes. We pay for policemen but we are not all obligated to be one. We pay for highways, but we don't have to help build them with our own hands. I participate in defense the same as in all these other areas, by way of the taxes they take from me."
"Hey, hold on there! You won! You aren't in jail and aren't going to war! Do you want to go back and argue with the judge now?"
Nam smiled - his first in a long time. "Of course I do... but I'm not stupid." He got into the car. "And what's this nonsense about a social contract anyhow? I never signed any such thing!"
For more on related topics, see the pages:
Military Fraud - The Myth Of Automatic Virtue
Rights Come With Responsibilities? Nonsense!
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