Analyzing Anecdote About Fiorello H. La Guardia :
In Perspective of Constitutional Law, Criminal Law and “Rule of Law”
The rule of law has been an important meaning in our society since accommodation of the legal systems of Western Europe. Although the rule of law is not a principle specified in the Korean Constitutional Law, there is no objection that the principle is one of the basic principles of the Constitution today. This paper analyzes the anecdote about Fiorello LaGuardia by dividing into three views: constitutional, criminal and rule of law point, and seeks to find the way to observe the rule of law formally and substantially.
When you analyze the “dismissal case” (it supposes that the judge dismissed the poor thief case), in view of constitutional law, the judge’s decision ignored the personal property right. Also, the judge excluded the application of the criminal law and the “rule of law” entirely. It can be confirmed by WGI ‘Rule of Law’ index. On the other hand, in the Fiorello LaGuardia story, the judge ruled out the application of law substantially and there is a possibility to infringe the freedom of people and personal property in view of constitutional law. In view of criminal law, the judge’s behavior may hinder Retributivism, general prevention and special prevention. In addition, the judge’s behavior is against “rule of law” generally. It is likely that both cases are formally in accord with the rule of law principle.
Therefore this paper suggests another way to help the poor offender and follow the rule of law. The way is that the judge makes him work and pay a fine by himself. The society should recognize its duty to help the destitute poor to rehabilitate. This way supports the “rule of law” and protects the poor from being the neglected social groups.
Historically, the rule of law started as a principle to limit the arbitrariness of rulers. After that, it has been developed as a principle that attempts to guarantee the freedom and rights of citizens. Rule of law has been of utter importance in our society since the accommodation of the legal systems of Western Europe.
Although the rule of law is not a principle specified in the Korean constitutional laws, there is no objection in that the principle is one of the basic principles of the Constitution today. Currently, the Constitutional Court demonstrated that it pursues the substantial rule of law to ensure the civil liberties, rather than the formal rule of law that controls arbitrary exercise of power
This paper analyzes the anecdote about Fiorello LaGuardia through three views (one is constitutional law, another is a criminal law and the other is the rule of law perspective) and seeks to find the way to observe the rule of law formally and substantially.
Ⅱ. Consideration on Analytical Tool
- Constitutional Law
Constitutional law is the body of law, which defines the relationship of different entities within a state, namely, the executive, the legislature, and the judiciary. Constitutional laws may often be considered the second rulemaking order, or the rules about making rules to exercise power.
It governs the relationships between the judiciary, the legislature and the executive with the bodies under its authority. One of the key tasks of a constitution within this context is to indicate hierarchies and relationships of power. For example, in a unitary state, the constitution will vest ultimate authority in one central administration and legislature, and judiciary, though there is often a delegation of power or authority to local or municipal authorities. When a constitution establishes a federal state, it will identify several levels of governments, coexisting with exclusive or shared areas of jurisdiction over lawmaking, application and enforcement.
- Criminal Law
Criminal law is the body of law that relates to crime. It regulates social conduct and prescribes threatening, harming, or otherwise endangering the health, safety, and moral welfare of people. It includes the punishment of people who violate these clauses. Criminal law differs from civil law, whose emphasis is more on dispute resolution and victim compensation than on punishment.
- Rule of Law
The rule of law is a system of rules and rights that enables fair and functioning societies. The World Justice Project defines this system as the one in which the following four universal principles are upheld:
1) The government and its officials and agents as well as individuals and private entities are accountable under the law.
2) The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property.
3) The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
4) Justice is delivered timely by competent, ethical, and independent representatives and neutrals that are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
Ⅲ. Analysis on Fiorello LaGuardia Story
- Study on the Anecdote about Fiorello LaGuardia
This anecdote is about Fiorello LaGuardi, who was a judge-turned-politician, and served three consecutive terms as the mayor of New York. He was held in honor because he had integrity and also had spread sharing and giving culture.
New York City mayor Fiorello LaGuardia occasionally sat in to judge police court. One bitter cold day during the depression, they brought a trembling old man in who was accused of stealing a loaf of bread.
“I’ve got to punish you,” declared LaGuardia. “The law makes no exception. I can do nothing but sentence you to a fine of 10 dollars.” The mayor was reaching into his pocket as he added “And sir, here is the 10 dollars to pay the fine. Furthermore I’m going to fine everyone in this courtroom 50 cents for living in a city where a person has to steal bread just to eat. Mr. Baliff, collect the fines and give them to the defendant.”
A hat was passed and an incredulous old man with the light of heaven in his eyes left the court room with 47 dollars.
People may feel touched by this story. However, we can come up with another legal remedy to help the poor thief. This way is that the judge dismisses this case and gives up ruling. Then the poor thief will be immune from punishment if the judge dismisses the case. Hereinafter, the dismissal case (modified Fiorello LaGuardia story) shall be referred to as “case 1” and the original Fiorello LaGuardia story shall be referred to as “case 2”.
- Study on the “Dismissal Case (case 1)”
1) In View of Constitutional Law
Clause 1, Article 34 of the Korean Constitutional Law stipulates that “all citizens shall be entitled to a life of human beings”. Maybe the judge of the case 1 has decided that the right in the article 34 of the constitutional law is more important than the effect of punishment which is to prevent future crimes of the offender and the public.
However, there may be a conflict between the offender’s human right and the public’s. In this case, the fundamental right of the thief is “right to live like human being” and the ignored public’s right is “property right” because, as there is no punishment against the offender, there can be no effect of preventing future crime and this may threat personal property. With regard to this conflicting rights, the Constitutional Court ruled that the court selected an appropriate resolution from time to time according to the form and nature of fundamental rights and solved the problem overall. According to this decision, each human right should be compared overall.
In this case, the thief’s right to live like as a human being can be achieved through other actions like receiving basic living cost. On the other hand, individual ownership of property should be protected by a nation because Clause 1, Article 23 of the Korean Constitutional Law says that “the property right of all citizens shall be guaranteed. The contents and limitations thereof shall be determined by the Act and there is no other ways to protect property right.” This article says that there is an obligation for the government to protect personal property. Therefore, it seems that the different two human rights clashes with each other but the latter is only achieved by government and there is no other way to protect personal property. In this respect, the judge’s decision has ignored the right of personal property.
2) In View of Criminal Law
Article 329 of the Korean Criminal Law stipulates that a person who steals another’s property shall be punished by imprisonment for not more than six years or by a fine not exceeding ten million won. According to the criminal law, the offender must be punished for the crime he committed. In this case, however, the judge excluded the application of the criminal law and the “rule of law” entirely.
3) In View of “Rule of Law”
The rule of law primarily refers to the influence and authority of law within society, especially as a constraint upon behavior, including behavior of government officials. One of the typical indicators of “rule of law” is WGI “Rule of Law” index. The index, which is evaluated by World Bank from 1996, is one of the 6 key indicators. WGI ‘Rule of Law’ index considers a) Enforceability of contracts, b)Property Rights, c)Fairness of judicial process, d)Legal stability, e)Independence of Judiciary, f)Respect for law in relations between citizens and the administration and g)Possibility of crime and violence. Some of these elements can be applied to case 1.
These are the element that can be applied to case 1.
- Property Right: A victim of the theft is unprotected by law because the judge denied giving punishment to the offender.
- Fairness of judicial process
- Legal stability
- Respect for law in relations between citizens and the administration: If judgment depends on the judge’s personal emotion, people doubt authority of law and there is no legal stability.
- Possibility of crime and violence: in case 1, there is no punishment for the crime, so it may promote crime, violence and disorder.
As mentioned earlier, It seems that the judge comprehensively ignored “rule of law” in case 1.
- Study on the “Fiorello LaGuardia Story (case 2)”
1) In View of Constitutional Law
The judge’s behavior of giving the money to the offender in the offender’s shoes helps the offender live like as a human being in accordance with article 34 of Korean constitutional law. Moreover, if the offender cannot pay a fine because he is so poor, then the offender would have been taken into custody. In this situation, it seems that the judge has protected the personal liberty specified in the article 12 of Korean constitutional law. However, the judge ruled out the application of law substantially and still there is a possibility to infringe the freedom of people and personal property.
2) In View of Criminal Law
The behavior of the judge is formally in accordance with the principles of the rule of law formally. However, the behavior defamed the purpose of punishment substantially and damaged the achievement of the rule of law. The purpose of punishment is divided into 3 general types: retributivism, general prevention and special prevention. Expected effects of the judge’s behavior (the behavior that the judge pays a fine for the thief) show whether the judge’s behavior defames purpose of punishment or not.
- a) Retributivism – This means a philosophy of law that states criminals must be punished (retribution) for the damage they have caused. In this case, the punishment, which is a fine, is imposed, but the offender doesn’t serve the punishment at all. So the judge’s behavior is against the retributivism.
- b) General Prevention – This is the effect that the public grow afraid of the punishment and become unwilling to commit a crime, by imposing punishment to the offender. In this case, if the people hear the second case, they may feel warm-hearted. However, people will not be afraid the law nor trust the law. So the judge’s behavior may hinder general prevention.
- c) Special Prevention – This is the effect that the punishment makes the criminal reformed and frightens the criminal out of second conviction. In this case, it seems that the thief feels grateful at present, but after then it is possible that he feels forgiven and steals goods when he needs them. So the judge’s behavior may hinder special prevention.
3) In View of “Rule of Law”
In case 2, by imposing the punishment ( in the form of a fine ) to the offender, the elements of “rule of law” such as Property Right, Fairness of Judicial Process, Legal Stability, Independence of Judiciary, Respect for Law in relations between Citizens are observed. However, as discussed above, the possibility of crime and violence seems to have increased.
In addition, one of the factors that inhibit the rule of law in Korea is paternalistic behavior. In Korea, law has a negative image and the man who lives without law is evaluated as a nice person. This traditional thought makes the judge exclude the application of law ultimately.
Ⅳ. Conclusion: The Way to Observe “Rule of Law”
This paper has analyzed two cases and examined whether each case really follows the rule of law. It is concluded that the judge avoids the rule of law itself for the first case and, in the second case, the judge seems to formally follow the rule of law formally but has excluded the punishment substantially. In both cases, the two judges are good men, but they are not good judicial officers because the first judge totally ignored the formal and substantive rule of law totally and the second judge excluded the rule of law for the sake of effectiveness.
Therefore this paper suggests another way to help the poor offender and follow the rule of law. That is, the judge makes him work and pay a fine by himself. Society should recognize its duty to help those offenders who are the destitute poor to rehabilitate. If there is no help, the poor have no choice but to steal and commit a crime again to live like a human being. After the whole society aids the offender to stand on his own feet then he can make money and pay the fine. However, the amount of fine must be more than for other offenders when the poor offender receives a job from the government, in order to prevent abuses. This will both supports the “rule of law” and also protects the poor from being the neglected social groups.
<Kang, Jeong Ah>
 헌법재판소 1992. 4. 28. 선고 90헌바24 결정
 Wikipedia (the free encyclopedia), http://en.wikipedia.org/wiki/Constitutional_law (last visited July 10, 2014)
 Wikipedia (the free encyclopedia), http://en.wikipedia.org/wiki/Criminal_law (last visited July 10, 2014)
 The World Justice Project, http://www.worldjusticeproject.org (last visited July 11, 2014)
 Jeff Kemp, Judge pays the fine (January 25, 2012), http://www.strongerfamilies.org/judge-pays-the-fine (last visited July 13, 2014)
 헌법재판소 2005. 11. 24. 선고 2002헌바95 결정 등
 Wikipedia (the free encyclopedia), http://en.wikipedia.org/wiki/Rule_of_law (last visited February 2, 2014)
 World Bank Group, available at http://info.worldbank.org/governance/wgi/pdf/rl.pdf (last visited February 2, 2014)