December 2001. Ryan No Title.

Vermont Bar Journal

2001.

December 2001.

Ryan No Title

LEX ET RATIO

Evil, Patriotism, and the Rule of Law

Kevin F. Ryan

Since two hijacked airliners tore into the twin towers of the World Trade Center on September 11, much has changed. The events of that day shocked us, shattering our comfortable dreams of well-being, arousing us from our slumber and forcing us to come to terms with much we had pre-viously chosen to ignore (if "chosen" is the right word). The loss of life and the devastation can accurately be described as horrific, the events the stuff of horror.

Many characterizations are possible of the terrorist attacks of September 11 and the eerie anthrax scares that plague us still. One characterization of the attacks that never did ring true, however, referred to what occurred as "tragic," and to the events as a "tragedy." What rang false in this language was that "tragedy" properly happens when heroic figures deeply marred by some flaw of character are brought to their knees by events they themselves have set in motion. Hamlet stricken with indecision was a tragic hero, and his story a tragedy. The same can be said about Othello, Lear, Oedipus, and the other great tragic heroes of drama. Tragedy, in short, happens to great men and women driven to destruction by weak-nesses written in their own characters. Tragedy occurs when great characters act, or fail to act, out of some flaw that com-pels them to bring about their own down-fall and, often, the downfall of the others around them.

Being in the wrong place at the wrong time, mere passive presence or death at the scene of great devastation, does not make one a hero, and so it cannot be the basis of tragedy. Death that comes like a thief in the night can be extraordinarily sad, but is not in the proper sense tragic. Nor does the complacency of a people living the good life in blithe ignorance of the world around them qualify as a heroic character flaw, and so the shattered complacency of the last several months cannot qualify as tragic. Undoubtedly there were heroes in New York City on that fateful day and after, as there were on the jet that crashed in the Pennsylvania countryside. Heroism entails extraordinary actions done by ordi-nary people out of simple decency. It involves going beyond what is morally required to do something exceptional, not because it is one's duty but because it is the good and decent thing to do, and, well, just needs to be done.(fn1 )Without question, many New York City police officers and firefighters acted in ways that can only be described as heroic - and surely in many cases, their deaths, in turn, were deeply and truly tragic. But what happened to the United States, or to its people, on September 11 was not tragic in this sense. Horrible, frightening, but not tragic.

It was, however, evil. A hoary word smacking of medieval notions of Satan, or of stock characters in fantasy stories or gothic novels, evil has been dusted off and has been enjoying somewhat of a come-back in recent years as a description of profoundly bad actions and those who per-form them.(fn2 )Evil, the product of actions or failures to act by identifiable individuals, can be banal, as Hannah Arendt showed in reference to the unexceptional weaklings who carried out the Nazi horrors.(fn3 )It can be grand and satanic, as master-minded by the likes of Hitler, Stalin, Caligula, and the other monsters of history, among which we may now include Osama bin Laden. But in reality the monsters cannot succeed without armies of mindless robots willing to carry out any order for the sake of their own ease, their own skin, or their own vicious instincts, or simply because they have been told to do so.(fn4 )Both moral mon-sters and blind, banal, unquestioning fol-lowers lie behind the events of September 11. Together they did something incredi-bly, overwhelmingly wicked. Those who have followed up those ugly events with mailed packages of anthrax, creating fear and wreaking havoc and death, have proven themselves to be similarly evil, if perhaps more craven.

I want to come back to the banality of evildoers later. For I want to suggest that at the heart of the practice of law lies the endeavor to erect barriers of reason designed to prevent the evil done by emo-tion-driven fanatics and unthinking mechanical men. But before that I want to explore the response we have witnessed to September 11 and the subsequent series of anthrax scares. Specifically, I want to reflect for a moment on the meaning of patriotism.

Patriotism and Jingoism

Since that September day of infamy, the United States has seen a vast outpouring of patriotism. Flags fly everywhere, the strains of "God Bless America" replace "Take Me Out to the Ballgame," and near-ly everyone proudly displays something in red, white, and blue. The neighborhood candle vigil held nationwide on September 14 was a potent and deeply moving expe-rience. Support runs high for the war against terrorists and those nations that harbor them. The nation is unified to an extent rarely seen in our history.(fn5 )Patriotism is in fashion.

We must be careful here, however. Patriotism involves a love of home and of a way of life. Inevitably, patriotism is bound up with a favorable evaluation of a national past creatively, but not too inac-curately, imagined and passed on through stories of heroes and grand, heroic achievements.(fn6 )Also inevitably, patriotism involves a belief that one's own nation is, in some significant ways, superior to other nations. Patriotism invokes a belief that one's country, unlike any other nation on earth, epitomizes certain important virtues. Thus, patriotism means loving one's country because it is lovable, not merely because it is one's country. Patriotism should not be confused with cheering for the home team. It is not, though it can all too easily deteriorate into, jingoism. Patriotism has little to do with the nationalistic bluster of the tavern and the radio talk show, or the sort of "My country...