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Title: The Conspiracy of Law Author: Howard Zinn Date: 1971 Language: en Topics: legal system, anarchist analysis, anti-state, Justice Source: The Rule of Law, edited by Robert Paul Wolff (New York Simon and Schuster, 1971) Notes: Scanned from reprint in Contemporary Anarchism, edited by Terry M. Perlin (Transaction Books, New Brunswick, New Jersey, 1979, page 273 ff)
There is, of course, some irony in speaking of the law itself as a
conspiracy, when the law so often hounds others as conspirators. But
beyond that, there is sense in using a term that suggests a collective
will, lending a systematic character to events. What is different about
the conspiracy of law from that of men is that men are not initiators
but executors; there is no overall planning by men, but men carry out
acts which lead to certain consistent results.
The human intent in the long-term social development is missing, but
there is human purpose on the individual level; the scheme of the social
structure is internalized as a variety of individual motivations which,
as they are acted out, realize certain consequences with remarkable
regularity. We are familiar with such motives. Marx, Weber, Michels,
Harry Stack Sullivan taught us something about them: the desire for
profit in business, for power in politics, for efficiency in
bureaucracies, for approval by “significant others.” Working in and
around all these other motives is the social need for legitimacy, which
reduces many of the complex requirements of modern society to a simple
rule which, if followed, will maintain all results as before: Obey the
law.
I use the term “conspiracy” therefore to retain the idea of systematic
results. The word “systematic” avoids the extreme claim of
inevitability, which has brought forth a fury of rejoinders (especially
against Marx); it suggests, rather, strong tendencies and overall
consistency. I use it also to retain the human element in our modern
complicated system, even if this is diffused and differentiated, to
insist on individual human responsibility. Otherwise, looked on as
unmalleable monsters, such systems reduce us to impotency. We carry out
the “will” of the structure by what we do. And it will take our action
to thwart that will.
Radical critics of society (as well as the chief administrators of that
society) have sometimes adopted “conspiracy theories” in which various
groups of men have been accused of plotting against the rest of us.
Radicals are led to this by their accurate perception of the
repetitiveness of certain phenomena in modern society--war, racial
hatred, political persecution, poverty, alienation--and by a false
conclusion that this must be the work of a plot. The effect of this
conclusion is to lose potential allies, who are properly dubious that
there is evidence for a plot; it also misleads friends, because it turns
them toward superficial actions aimed at particular plotters rather than
at larger structural defects. (If anyone is innocent of exaggerating
evil it surely must be the black South Africans, but I once heard a
black man from Johannesburg say, “I don’t want to exaggerate our
situation, because it will mislead me.”)
Since I am not defining “conspiracy” in the customary way, by whether or
not it breaks laws, I must find an end for this conspiracy which is
beyond the realm of law, and so I will find it in the violation of
ethical goals. As a rough guide, I will use men and women’s equal rights
to life, liberty, and the pursuit of happiness, and speak of law
conspiring against these rights.
This is still a crude test, but it is better than “the rule of law,”
which has no ethical content that I can see. What would seem to be an
inherent ethic of stability turns out to be quite dependable, as we find
the rule of law in practice creating certain kinds of stability at the
expense of other kinds: national at the expense of international, civil
at the expense of personal; or as we find that a “peace” enforced by the
rule of law is purchased at the price of disorder.
In our general overestimation of the benefits of that modernization
(industrialization, urbanization, science, humanism, education,
parliamentary government) which followed the feudal era in the West, we
have magnified the advantages of “the rule of law” supplanting “the rule
of men.” Our histories show varying degrees of reverence for the Magna
Carta, which stipulated what are men’s rights against the king; for the
American Constitution, which made specific (and supposedly limited) the
powers of government as against the people; and for the Napoleonic Code,
which introduced uniformity into the French legal system. Writing to the
new king of Westphalia in 1807, Napoleon enclosed “the constitution of
your kingdom” to replace “arbitrary Prussian rule” with “a wise and
liberal administration,” and urged him: “be a constitutional king.” The
comment of historians Robert Palmer and Joel Colton on Napoleon (A
History of the Modern World) bears out my point: “Man on horseback
though he was, he believed firmly in the rule of law.”
The modern era, presumably replacing the arbitrary rule of men with the
objective, impartial rule of law, has not brought any fundamental change
in the facts of unequal wealth and unequal power. What was done
before--exploiting men and women, sending the young to war, putting
troublesome people into dungeons--is still done, except that this no
longer appears as the arbitrary action of the feudal lord or the king;
it is now invested with the authority of neutral, impersonal law.
Indeed, because of this impersonality, it becomes possible to do far
more injustice to people, with a stronger sanction of legitimacy. The
rule of law can be more onerous than the divine right of the king,
because it was known that the king was really a man, and even in the
Middle Ages it was accepted that the king could not violate natural law.
(See Otto Gierke, Political Theories of the Middle Age, Notes 127–134.)
A code of law is more easily defied than a flesh and blood monarchy; in
the modern era, the positive law takes on the character of natural law.
Under the rule of men, the enemy was identifiable, and so peasant
rebellions hunted out the lords, slaves killed plantation owners, and
radicals assassinated monarchs. In the era of the corporation and the
representative assembly, the enemy is elusive and unidentifiable; even
to radicals the attempted assassination of the industrialist Frick by
the anarchist Berkman seemed an aberration. In The Grapes of Wrath, the
dispossessed farmer aims his gun confusedly at the tractor driver who is
knocking down his house, learns that behind him is the banker in
Oklahoma City and behind him a banker in New York, and cries out, “Then
who can I shoot?”
The “rule of law” in modern society is no less authoritarian than the
rule of men in pre-modern society; it enforces the maldistribution of
wealth and power as of old, but it does this in such complicated and
indirect ways as to leave the observer bewildered; he who traces back
from cause to cause dies of old age inside the maze. What was direct
rule is now indirect rule. What was personal rule is now impersonal.
What was visible is now mysterious. What was obvious exploitation when
the peasant gave half his produce to the lord is now the product of a
complex market society enforced by a liberty of statutes. A mine
operator in Appalachia (in a recent film made by Vista volunteers) is
asked by a young man why the coal companies pay so little taxes and keep
so much of the loot from the coal fields, while local people starve. He
replies, “I pay exactly what the law asks me to pay.”
The direct rule of monarchs was replaced by the indirect rule of
representative assemblies, functioning no longer by whim and fiat but by
constitutions and statutes, codified and written down. Rousseau saw
clearly the limitations of representation, saying, “Power can be
transmitted, but not will.” And: “The English people think that they are
free, but in this belief they are profoundly wrong....Once the election
has been completed, they revert to a condition of slavery: they are
nothing.” The idea of representation, he says, “comes to us from the
feudal system, that iniquitous and absurd form of Government in which
the human species was degraded and the name of man held in dishonour.”
The conspiracy of law occurs in the age of literacy and makes the most
of power of the printed word. Thus, the potential for hypocrisy, which
is man’s gift to the universe through symbolic communication, is
enormously expanded. In slavery, the feudal order, the colonial system,
deception and patronization are the minor modes of control; force is the
major one. In the modern world of liberal capitalism (and also, we
should note, of state socialism), force is held in reserve while, as
Frantz Fanon puts it (The Wretched of the Earth), “a multitude of moral
teachers, counselors, and bewilderers separate the exploited from those
in power.” In this multitude, the books of law are among the most
formidable of bewilderers.
History, which comes of age in modern times and reaches the status of a
profession, is used selectively, politically. In our histories, we make
much of the great transition to “modern” times, thus obscuring the
continuity of injustice from the pre-modern to the modern era, from the
rule of men to the rule of law. And when it suits us, we become
completely a historical for instance, when we talk as if liberal
democracy really did have an immaculate conception out of some noble
compact among men, rather than out of the bloody struggles of ambitious
and profiteering revolutionaries. David Hume tries to straighten us out:
“Almost all the governments which exist at present, or of which there
remains any record in story, have been found originally, either on
usurpation or conquest, or both, without any pretense of a fair consent
or voluntary subjection of the people” (Of the Original Contract). Hume
also neatly disposes of Socrates’ talk of our “obligation” to obey the
laws of the state in which we reside as based on some mythical original
“contract” by saying, “Thus, he (Plato) builds a Tory consequence of
passive obedience on a Whig foundation of the original contract.”
The decade of the 1960s, as we know, has been marked by widespread
disorders. This, even in the absence of other evidence, might make us
suspect the nation’s claim to be the leader of “the free world” and make
us wonder if its staggering production (fifty per cent of the world’s
output) were being used in a rational way. We need not listen to the
radical critics, only to government reports and other sources devoid of
subversive intent, to reinforce our suspicions: the Kerner Commission
tells us race prejudice is pervasive and virulent; the Statistical
Abstract tells us that forty million Americans have trouble just getting
adequate food and shelter; The New York Times tells us that the oil
companies, through government quotas, extract five billion dollars a
year in excess profits from the American consumer; the national
television networks tells us enough of the war to suggest that Song My
is not an aberration but one stark instance of that colossal atrocity
which is American military action in Vietnam.
We have been through periods of national self-criticism before. But this
one is different. Previous protests were limited, addressed to what were
seen as unhealthy growths in an otherwise admirable society, and quickly
remedied. Thus, abolitionist calmed down when slavery was made illegal,
despite the persistence of semi-slavery and racism. Populists, and
radicals of the 1930s, were cooled by Wilsonian and Rooseveltian reform
legislation, and by the easing of hard times. The anti-imperialist
movements died out when the glaring wrong of the Spanish-American War
faded. the current disaffection of the ghettos comes not in a depression
but in a period of “prosperity”; urban riots take place not in reaction
to a wave of lynchings but shortly after a battery of “civil rights
laws” has been passed by Congress; the protest against the Vietnam War
has turned against national military policies in general; lack of faith
in the political system grew while liberals (Kennedy and Johnson) were
in the White House; disillusionment with the judicial system becomes
most manifest during the era of the “Warren Court” and its expansion of
procedural rights.
In short, the target of discontent is not an abnormal event: a
depression, lynchings, a particularly brutal war, the Sacco-Vanzetti
case. The target is the normal operation of American society. The
problem of poverty is no longer one of hard times but of good times. The
problem of race is not in the South but in the whole country. The
problem of war is not a specific adventure but the entire foreign
policy. The problem of politics is not conservative Republicans but
liberal Democrats. It is no longer the norms, but the aberrations of
American culture, which have come under scrutiny, criticism, attack.
That is why the current movement of protest is so important, why it will
not fade away; why it will either grow or be crushed in a frenzy of fear
by those in power.
When it is the normal functioning of society which produces poverty,
racism, imperial conquest, injustice, oligarchy--and when this society
functions normally through an elaborate framework of law--this suggests
that what is wrong is not aberrational, not a departure from law and
convention, but is rather bound up with that system of law, indeed,
operates through it.
History argues against the notion of aberrational wrong; it shows the
persistence over centuries of the social ills that bother us today. The
maldistribution of wealth in America goes back to the colonial era;
Bacon’s Rebellion, indentured servitude, and the labor struggles of the
nineteenth century all testify to a class structure which spans our
entire natural history. Mistreatment, to the point of murder, of blacks
and Indians stretches from seventeenth-century Virginia and the Pequot
Wars, through slavery and the extermination of the Plains Indians, down
to the murder of black men in the Algiers Motel in Detroit. From the
Sedition Act of 1798 to the Rap Brown statute of 1968, we have passed
laws to jail protesters in times of tensions. And the war in Vietnam is
only the most recent of a long series of acts of aggressive expansion by
this country, from a tiny strip of land along the Atlantic to the point
where our hydrogen missiles and our soldiers encircle the globe.
All this happened not in violation of law, but through it and in its
unblinking presence. It is not a straight-line progression of
identifiable evil. If it were, we would have caught on long ago. The
persistence of the system’s traits is hidden by ups and downs, backs and
forths, and bewildering succession of bad times and “good” times,
conservative leaders and “liberal” leaders, war and “peace.” We are left
somewhat breathless, and in the end persuaded of the basic kindness of
the system (we who have time to think, talk, write about it have indeed
been treated rather kindly). Only now have we suddenly awakened,
startled by a new thought--that it is not just the “bad” times and the
“bad” leaders, and “bad” wars, that what is wrong is built into the
whole bloody system, at its best as well as at its worst.
We have always been naive about what seemed like games of chance; we had
eras of depression and eras of prosperity, times of war and times of
peace, times of witch hunts and times of justice, times of lynchings and
times of civil rights laws. “And so it goes,” in Kurt Vonnegut’s phrase.
It is like roulette; sometimes you win and sometimes you lose; you win,
you lose, you lose, you win. Indeed, no one can predict in any one
instance whether the little ball will fall into the red or the black,
and no one is really responsible. Yet, in the end, in roulette, you
almost always lose. What keeps you from suspecting a conspiracy is that
“almost” (sometimes somebody wins) and the fact that no one spin of the
wheel has been contrived it is just the historic totality that has a
predictable direction.
Thus with the social structure. There are enough times of reform, enough
times of peace, enough reactions against McCarthyism, to make up that
“almost.” And each event itself seems to come from a crazy concatenation
of individual decisions, group conflicts, personality quirks, trials and
errors, with no overall purpose or plan. It is just the results that, on
inspection, show a pattern.
If the pattern is indeed as I describe it, there are important
implications for our attitude toward law, and our willingness or
unwillingness to disobey the law. Much of the caution against civil
disobedience in the United States is based on the essential goodness of
our society, whatever might be the admitted wrong of a particular law or
partial condition. For instance, in the symposium Law and Philosophy,
John Rawls says he assumes at the start, “at least in a society such as
ours, a moral obligation to obey the law,” with the premise that “the
legal order is one of a constitutional democracy.” In the same
symposium, Monroe Beardsley urges caution against disobedience because
of “every individual’s general stake in the whole legal structure...” In
a paper delivered last year at the American Political Science
Association meetings, Joseph Dunner writes:
I submit that while there is frequently not only a moral right but even
a moral obligation to practice civil disobedience under conditions of
political despotism, the advocacy and practice of civil disobedience in
a democracy, far from “expressing the highest respect for law” might
easily be one of the means used by totalitarians for the deliberate
destruction of the democratic process and the establishment of their
despotic rule.
This is the general presumption of most American writers on the subject
of civil disobedience: that the United States, as a “constitutional
democracy,” is a special case. In this country, presumably, the law
works mostly for good; therefore, respect for the law is of such a value
as to create a strong case against diminishing that respect by acts of
civil disobedience.
The evidence on how good a society is seems crucial to any argument on
civil disobedience. It was on this basic ground of fact that Hume
challenged Socrates, for Socrates’ decision to submit to Athenian law
was based on the supposition that when Athenians remained in the
community it was a sign that they enjoyed its benefits; otherwise they
could have left at any time. Hume argues: “Can we seriously say that a
poor peasant or artisan has a free choice to leave his country, when he
knows no foreign language or manners, and lives, from day to day, by the
small wages which he acquires?”
For us too, our perception of the facts is crucial. Is it not time that
we reconsidered the easy judgment, passed on in an atmosphere of
self-congratulation from one American generation to the next, that we
indeed have “democracy,” that there is such a polarity between our
system and other systems as to require a different attitude to law and
disobedience? I am arguing here that the evidence on the functional
realities of our system, as opposed to democratic theory and political
rhetoric, does not justify such an overriding respect for the laws.
Rather, most of these laws have supported, through vagaries and
deviations, a persistent pattern of injustice through our history. How
do the laws, and the accompanying culture of “the rule of law,” maintain
that pattern of injustice? I would list a number of ways:
1. The idea of a system of law, to which we are asked to give general
and undiscriminating support, disguises the differences among various
categories of law. We are made aware of our constitutional rights, in
the Bill of Rights and other provisions, from the earliest grades in
school, with such fanfare and attention as to persuade us that these are
the most important parts of our law; when we think of “respect for law”
we are likely to think of these benign provisions of law which speak of
rights and liberties. But we are told very little, so little as to
escape our consciousness quickly, about the vast body of legislation
which arranges the wealth of the nation: the tax laws, the
appropriations bills (on the local level as well as the national level),
and the enormous structure of law which is designed to maintain the
property system as is--and therefore the distribution of wealth as is.
One has only to look at the curricula of law schools, and see students
staggering through courses titled Property, Contracts, Corporation Law,
Torts, to understand how much of our legal system is devoted to the
maintenance of the economic system as it now functions, with its
incredible waste, with its vast inequities.
Consider the public relations job that has been done on the birth of the
Bill of Rights in 1791, and how little attention has been paid to
Alexander Hamilton’s economic program, promulgated around the same time.
The Bill of Rights was hardly more than a showpiece for a very long
time, but Hamilton’s program of tariffs, the assumption of debts, and
the national bank were the start of a long history of federal
legislation creating a welfare system for the rich. (See Charles Beard’s
essay of 1932, “The Myth of Rugged Individualism,” for an account of the
many ways in which the government in the nineteenth and twentieth
centuries passed laws to aid big business.) From Hamilton’s “Report on
Manufactures” to the current oil depletion allowance, this bias of
national legislation toward the interests of the wealthy has been
maintained.
It is not just the volume of legislation which is important, but the
force of it. The existence of a law, or a constitutional provision, on
the books tells us little about its effect. Is the law immediately
operative (like a tariff) or does it require long litigation and expense
and initiative (like the First Amendment) before it is of use to anyone?
Is it given prompt attention (like the assumption of debts) or is it
ignored (like the provision that “Congress shall make no law...abridging
the freedom of speech, or of the press.”)?
We have a striking illustration from those early days of the Republic.
The First Amendment was so little observed that hardly seven years after
it went into effect Congress passed a law, the Sedition Act of 1798,
which indeed did abridge the freedom of speech, and with such vigor as
to send ten persons to jail for their utterances. One could hardly claim
that the First Amendment was being enforced. On the other hand, the
Excise Tax on whiskey (needed to pay off rich bondholders on the
Assumption scheme) was so efficiently enforced that when small farmers
in western Pennsylvania rebelled against the tax in 1794, Secretary of
the Treasury Hamilton led the troops himself in putting them down. The
government enforces those laws it wants to enforce; that fact is part of
the American legal tradition.
Ironically (in view of the customary assumption that the legal system
guards us against anarchy), it is the laws, either by what they provide
as they are passed or by what they permit when they are not passed,
which contribute to the anarchy of the economic order. They either
permit or subsidize the unfettered spoliation of natural resources; they
permit, indeed pay for, the production of dangerous things--poisons,
guns, bombs. The allocation of the nation’s colossal wealth to the
production of either weapons or junk takes place not contrary to law but
through a vast network of contractual arrangements.
2. The idea of a system of law disguises another distinction in
categories of laws: between laws which protect us against bodily harm
and laws which protect property from theft. When we are cautioned
against chipping away at the structure of law, what is usually uppermost
in our minds is that the law protects us from the constant danger of
assault, rape, and murder. But most law-enforcing is designed to protect
property, not human beings. Most crimes, by far, are crimes against
property, not against persons. (In 1966, there were 120,000 offenses
against persons and 1,670,000 offenses against property.)
We are constantly reminded of the priorities of law
enforcement--property over human beings--by the repetition of certain
events: the policeman shooting someone who has committed a petty theft
(a man who steals a million dollars in a price-fixing swindle is never
personally harmed, but a kid who runs off with five dollars is in danger
of summary execution): police cars killing or injuring people in mad
chases after robbers (a recent report to the American Medical
Association said five hundred people die each year as a result of police
auto chases).
The quality of justice depends on who is the person assaulted, and what
is the nature of the property crime. On the same day in February 1970,
the Boston Globe reported the results of two trials. In the case of
policemen who admitted killing two black men in the Algiers Motel in
Detroit, and were charged with conspiring to deprive persons of their
civil rights, the verdict was acquittal. In Texas, a man who stole
seventy-five dollars from a dry cleaning store was given a sentence of a
thousand years.
Most of our legal system is designed to maintain the existing
distribution of wealth in the society, a distribution which is based not
on need but on power and resourcefulness. Most criminal penalties are
used not to protect the life and limb of the ordinary citizen but rather
to punish those who take the profit culture so seriously that they act
it out beyond the rules of the game. Property crimes are a special form
of private enterprise.
3. Seeing the legal system as a monolith disguises the fact that laws
aimed at radicals, while pretending to protect the society at large,
really try to preserve the existing political and economic arrangements.
The Espionage Act of 1917 (even its title deceives us into thinking its
aim is protecting the community) sought to prevent people from
communicating certain ideas to soldiers or would-be soldiers which might
discourage their carrying on a war. The Act begs the question of whether
carrying on the war is a blessing to the society at large or a danger to
it.
The Smith Act provision against teaching the violent overthrow of the
government assumes the government is not evil enough to deserve being
overthrown. The Selective Service Act assumes the draft protects us all
when indeed it may take our sons to die for someone else’s privileges.
This is a small class of laws, but its psychological impact on the right
of protest, (“Watch your step, or else...”) can hardly be overestimated.
It stands ready for use any time dissidence threatens to become too
widespread. The recent Chicago “conspiracy” trial is an example.
4. The three distinctions I have made so far are intended to illustrate
how the general exhortation to preserve the legal system as if it were a
benign whole glides over the fact that different kinds of laws serve
different purposes. More justifiable laws (for free speech, against rape
or murder) stand in the front ranks as a noble facade concealing a huge
body of law which maintains the present property and power arrangements
of the society. Buried in the mass is a much smaller body of law which
stands guard against those who would rebel in an organized way against
these arrangements.
Underlying these distinctions is a more fundamental one: between rules
of conduct, which are necessary for human beings in any social order to
live with one another in harmony and justice, and those rules which come
out of some specific social order, the product of a particular
historical culture. H.L.A. Hart speaks of “primary rules of obligation”
(The Concept of Law), which include restrictions on the free use of
violence and “various positive duties to perform services or make
contributions to the common life.” These rules are not enforced by the
coercive techniques of modern society but rather by “that general
attitude of the group toward its own standard modes of behavior.”
Bakunin distinguished between “natural laws,” created by the facts of
human nature, and “juridical laws,” like the law of inheritance. What
separates Hart from Bakunin is his acceptance of the need for “secondary
rules” in more complex societies. I would claim that Hart accepts too
easily the need for these secondary rules, but the distinction he makes
is important because it enables us to examine more closely than he did
himself the possibility of a society, even a modern one, that would be
guided by primary rules. The distinction takes us out of our present
social arrangements and back to an examination of what laws are
necessary and just on the basis of human nature. We can look backward to
primitive societies (as Hart does) but also forward, in a utopian
(eu-topian) imagining about the future. The ideology of any culture
tries to obliterate the distinction between what is humanly necessary
and what merely perpetuates that culture.
5. We make a fetish of “obedience to law” (put more delicately by
philosophers as the concept of “obligation”) without making it clear to
all citizens of whom this obedience is demanded that government
officials have an enormous range of choice in deciding who may and who
may not violate the law. One person’s failure to honor the obligation is
ignored, another’s is summarily punished.
The most flagrant illustration of this is in racial matters. When I
speak of selective enforcement of laws on racial equality, I am not
speaking of the South but of the national government. Before the Civil
War, the legal prohibition against the importation of slaves was ignored
by the national executive, but the Fugitive Slave Law was enforced by
armed soldiers (as in the rendition of Anthony Burns in Boston). From
1871 on, with a battery of statutes giving the national government the
power to prosecute those denying constitutional rights to the black man,
every President, liberal and conservative, from Hayes through Theodore
Roosevelt, Woodrow Wilson, Franklin Roosevelt, John F. Kennedy, and
Lyndon Johnson, refused to use that power on behalf of the black man. As
one example, under Attorney-General Robert Kennedy, a series of
violations of the constitutional rights of blacks in Albany, Georgia, in
1961 through 1962 led to only one federal prosecution--against black and
White members of the civil rights movement in Albany who had picketed a
local merchant.
Unequal law enforcement in racial matters is most obvious, but it is
also true in economic questions, where corporations violating the law
may be ignored or gently rebuked; note the light sentences given in the
General Electric price-fixing case, where millions were taken from the
consumer. We find it also where rank and status are involved, as in the
military. In 1966, an American Army captain in Saigon, found guilty of
fraudulently doing off with imported silk, military planes and Treasury
checks, was allowed to retire with a pension; in 1968, various enlisted
men who sat in a circle and sang “We Shall Overcome” to protest
conditions in an Army stockade in San Francisco were sentenced to years
in prison at hard labor, on charges of “mutiny.” Selective enforcement
of the law is not a departure from law. It is legal.
6. Also concealed from the public, as it is bidden sternly to honor the
law, is the record of law enforcement agencies in breaking the law
themselves. This includes wiretapping by the FBI (admitted by FBI agents
in court proceedings at various times) and countless cases of assault
and battery, up to murder, by local police.
7. A restricted definition of “corruption” in our culture leads to cries
of outrage against politicians and businessmen who break the law for
their private aggrandizement. What is thus hidden from the public is the
larger corruption of the law itself, as it operates to distribute wealth
and power. Thus, our history books draw our attention to the Teapot Dome
scandals and other legal shenanigans of the Harding Administration,
while ignoring the far more serious (not only because of its scale but
because of its permanence) reallocation of wealth that took place
legally, through the tax laws proposed by Secretary of the Treasury
Andrew Mellon and passed by Congress in the Coolidge Administration.
Similarly, the headlines parade Adam Clayton Powell’s payroll padding,
and bury the legal appropriation of the citizen’s money by contracts to
General Dynamics and Lockheed, by huge subsidies to poor farmers like
James Eastland and Herman Talmadge. Thus, one Supreme Court nominee is
pushed aside because of acts of dubious legality, while another breezes
through the Judiciary Committee because he is legally proper, though
morally more opprobrious than the first. We forget that the problem is
the structure of the roulette wheel, not the occasional appearance of a
dishonest croupier. The responsibility for what we see around us belongs
to the legal system itself, not the deviations from it.
8. The rule of law, whatever its effects, is restricted by our national
boundaries. International law, being far weaker, permits even greater
selectivity in adherence to it. Contracts, and compensation for
expropriated property, are likely to be given strict attention, while
prohibitions against the use of force to settle international disputes
will be ignored, as in Vietnam. While at home it can be claimed that we
get a modicum of order along with injustice, in the international arena
we observe neither order nor justice.
9. Attached to the law in our culture is the notion of solidity as
against transience, of the stable against the erratic. Hegel, in the
preface to his Philosophy of Right, asks that we recognize the
rationality in the state, as that in nature, rather than leaving us all
“to the mercy of chance and caprice, to be God-forsaken.” But this
attractive quality of “rationality” conceals the motive of thwarting
change, the demand of “law and order” against reform and revolution.
Thus, Hegel denounces his colleague J.F. Fries for a speech on the state
in which Professor Fries said, “In the people ruled by a genuine
communal spirit, life for the discharge of all public business would
come from below, from the people itself.” Fries was punished by the
German government for participating in the Wartburg Festival of 1817,
and Hegel’s translator, T.M. Knox, comments, “This was a liberal
demonstration in favor of German unity and Stein’s reforms. Hegel
supported both of these but he held that enthusiastic demonstrations
were no substitute for thinking and could only lead to immorality and
anarchy.”
The claim of permanence and rationality has some truth, but its other
side is the natural tendency of law (at its best) to represent past
conditions, past needs. As Professor Richard Wasserstrom has put it (in
his talk “Lawyers and Revolution,” given to the National Lawyers Guild
in July 1968), “the law is conservative in the same way in which
language is conservative. It seeks to assimilate everything that happens
to do that which has happened.” In an age where change has become
exponential, this natural disability of law is especially marked.
Granted, there is a value in acting on rules and principles derived from
long-term experience as opposed to acting only on the ephemera of the
moment. But that experience must not become an absolute; rather, it
should be weighed constantly against the fresh perceptions of
existential reality.
For such a mediation between past and present, Nietzsche is a better
guide than Hegel, about whom he seems to be speaking when he talks (in
The Use and Abuse of History) of “the historically educated fanatic of
the world process” who “has nothing to do but to live on as he has
lived, love what he has loved, hate what he has hated, and read the
newspapers he has always read. The only sin is for him to live otherwise
than he has lived.”
10. The law neither has to be violated nor does it need to do anything
drastic in order to maintain existing inequities in wealth and power. It
needs only to renew itself in the same basic patterns, to enlarge the
scale but retain the same theme, to permit reforms, but within limits.
At the time of legal codification (as in the United States Constitution,
for instance), the basic pattern of modern life was set: the
irrationality of a productive system driven by business profit; the
concentration of political power in deputies, of judicial power in
magistrates; the control of communication by schools, churches, and men
of wealth. From that point on the system of law needed only elaboration,
and it was resilient enough to absorb gradual reform. It performed as
Madison predicted it would, to cool, through its political system of
representation, any possible passion for tumultuous change, and to
control any “rage” on the part of the propertyless. With the basic
patterns set, it could afford a certain magnanimity in its
pronouncements of equality before the law. Anatole France’s comment is
still apt: “The law in its majesty draws no distinction, but forbids
rich and poor alike from begging in the streets or sleeping in the
public parks.”
11. So far, I have been talking of the passage of laws by legislatures
and the enforcement of laws by the executive. By the time the law
appears in the courtroom, to be applied by judges, juries, lawyers, and
marshals, it has already been subject to enough of the social strictures
mentioned above so as to make injustice probable even before the judge
has taken his seat on the bench. But inside the judicial process, all of
the built-in ordinary legal mechanisms act to reinforce what society has
ordained.
The sociology of the judge needs to be considered. The awesome black
robes conceal men who come to their posts through the most sordid
corridors of local politics, or by political appointment. If cronyism
appears on the Supreme Court (Truman and Vinson, Kennedy and Whizzer
White, Lyndon Johnson and Abe Fortas), then how much more often must it
be true on the local level, where most judicial decisions are made?
The judge is monarch of the courtroom: he decides the composition of the
jury; he decides what evidence is admitted or excluded; what witnesses
may be heard or not heard; what the jury may listen or not listen to;
what bounds lawyers must observe; even what lawyer the defendant may
have; what limits the jury must stay within in making its decision. He
can dismiss a case, or so charge the jury as to make conviction certain.
His background is middle- or upper-class parents, law schools, private
clubs. His mind is in the past. His environment is limited: a splendid
city apartment, a home in the country, the courtroom itself. The world
of anguish, of social protest, is a threatening dark form on his window
shade. In the play The Chalk Garden the old judge, off duty, muses about
the man on the bench: “The line on the judge’s face is written by law,
not life.”
Most law is decided on the local level, and while there are occasional
exceptions, far more typical is the evidence of narrowness, class and
race prejudice, and a hatred of social rebels. Judge Elijah Adlow,
senior judge of the Boston municipal court, told a leader of a tenants’
movement (who had helped a destitute family move--illegally--into a
vacant apartment and was charged with assault after he had been beaten
by police), that he would have to go to jail “unless you change your
philosophy.” But behind the glamorous injustice of the occasional Adlow
or Julius Hoffman there is a parade of obscure judges making obscure
decisions for obscure defendants, putting them away and out of sight.
The sociology of lawyers--the socialization of law school, the practice
of obsequiousness before judges, and deals with prosecutors--is too long
a story to tell in detail. The sociology of juries includes a process of
unnatural selection which turns up, again and again, white middle-class
citizens of orthodox views, common prejudices, and obedient disposition,
most middle-aged or old.
The economics of justice in America--the systematic prejudice against
the poor at every stage--the arrest, the setting of bail, the trial, the
choice of counsel, the sentence, the opportunity to appeal, the chance
of parole is too well known to need documentation. (A newspaper item of
last week: Dozens of inmates in one New York jail had spent from six
months to two years behind bars, waiting for their trials, because they
could not afford bail--all this while they are presumed to be innocent,
and while whatever innocence they had is long gone.)
As one moves up from municipal courts to state supreme courts and
federal courts, the basic sociological and economic facts of justice
change very little, but this is concealed by a certain regal mustiness
of the atmosphere which puts a coat of respectability on a fundamentally
inhuman process. What Herbert Read described in British justice differs
only in detail (see his essay “Chains of Freedom,” in Anarchy and Order)
from the American judicial system:
“The independence of the judiciary is symbolized in various ways. By
means of wigs and gowns, the participants are dehumanized to an
astonishing degree. If by chance, in the course of pleading a hot and
flustered barrister lifts his wig to mop his brow, an entirely different
individual is revealed. It is as if a tortoise had suddenly dispensed
with its shell. The whole business is carapaceous; a shell of custom and
formality against which life, plastic and throbbing, beats in an effort
to reach the light.”
12. The main decisions have been made outside the courtroom, by the
society and the culture that brought this combination of persons to this
place at this time. But this is made explicit by the deliberate attempt
of courts to limit the scope of argument and decision, thus ensuring
that court decisions will have minimum effect on the direction of
society. On the appeals level, including the Supreme Court, this means
deciding cases on technical or narrow grounds wherever possible,
postponing fundamental questions as long as possible. It has been most
difficult, for instance, in cases of draft resistance, to get the
Supreme Court to rule on a question far more important to society than
the disposition of one resister: Is the war in Vietnam illegal?
This attitude is expressed by one of the judges in Lon Fuller’s mythical
case of “The Speluncean Explorers,” when he refuses to deal with the
moral complexities of a community decision to sacrifice one person so
that others might live: “The sole question before us for decision is
whether these defendants did, within the meaning of NCSA Sec. 12A,
willfully take the life of Roger Whetmore.”
Not so mythical are the actual cases of political protesters hauled into
court on ordinary criminal charges and prevented by the judge from
airing the political grounds of their actions. (Theodore Mommsen put it
well: “Impartiality in political trials is about on the level with
Immaculate Conception: one may wish for it, but one cannot produce it.”
Quoted in Otto Kirchheimer, Political Justice.) It should make us all
pause to know that within the space of a few months similar
pronouncements were made in a court in Moscow and a court in Milwaukee.
The Moscow judge refused to let a group arrested for distributing
leaflets in Red Square against the Russian invasion of Czechoslovakia
discuss anything political; the only issue, he said, was: Did they or
did they not break the law in question?
The Milwaukee judge similarly refused to let the priests who had burned
draft records explain their motivation. The only question, he said, was:
“Did the defendants commit arson, burglary, and theft?” When one witness
began to discuss the ideal of civil disobedience, the judge interrupted
him with what must be a classic judicial statement: “You can’t discuss
that. That’s getting to the heart of the matter.”
That is also getting to the end of my argument, which is always, of
course, the beginning of another. A general “obligation to obey the law”
is a poor guide in a time when revolutionary changes are needed and we
are racing against ominous lines on the social cardiograph. We need to
separate whatever there is in law that serves human ends from everything
else that rides along with it, on the backs of so many people. We need
to get away from pleasant abstractions and look at the functional
reality of the legal structure which guides our society: its sociology,
its economics, its human consequences.
Philosophical speculation tells us that civil disobedience may be
necessary under certain conditions of injustice. Historical evidence,
the facts of the lives of people around us, tells us that those
conditions exist and that they are maintained by the present structure
of law. To know this is only the beginning. I have tried here, by
inculcating a proper disrespect for “the rule of law,” only to put us at
the starting point, in a mood to run. The same modern civilization which
has given us unjust laws has given us great ideals. We need to learn how
to violate these laws in such a way as to realize those ideals.
Each of us, depending on where we are in the social structure, must draw
his own existential conclusion on what to do. In Tolstoy’s “The Death of
Ivan Ilyich,” the proper, perfect, successful magistrate Ilyich agonizes
on his deathbed about his sudden awareness that his life has been
wasted, useless, wrong:
“Maybe I did not live as I ought to have done,” it suddenly occurred to
him. “But how could that be, when I did everything properly?” he
replied. “If I could only understand what it is all for! But that too is
impossible. An explanation would be possible if it could be said that I
have not lived as I ought to. But it is impossible to say that”--and he
remembered all the legality, correctitude and propriety of his life.