Friday, January 28, 2011

The rules of law

Staughton Lynd, From Here to There:

Law is like history with dessert. For instance, I'm working on a case that involves a company moving away from Youngstown after allegedly promising to the union, during collective bargaining negotiations five years ago, that it would stay. Maybe it's called law instead of history, but I'm doing exactly what I used to do as a historian. I'm ferreting out documents. I'm talking to people. I'm trying to understand why the policy changed from one point in time to another. But as a historian when you get to the last chapter, that's it, whereas the lawyer has the chance of going a little further.

I have all the questions that anybody else does about the law and whether it misleads people more than it helps them to hold out a sense that maybe you can accomplish something in the courts. But at least for me there's the satisfaction that after you get done analyzing the situation, you can have a shot at trying to do something about it. I find that very satisfying. And another thing, I noticed in looking at the E.P. Thompson interview his comment on Whigs and Hunters where, in the last chapter, he suddenly bursts forth and says, in effect, "You know, the law is not such a bad thing. Marxists have gone overboard with the idea that everything is relative. There's something about the law as a society's encapsulation of its sense of right and wrong that's extremely important." I suppose it's very obvious that he also spoke for me in saying that.

E.P. Thompson:

[T]here is a difference between arbitrary power and the rule of law. We ought to expose the shams and inequities which may be concealed beneath this law. But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good.

… If we suppose that law is no more than a mystifying and pompous way in which class power is registered and executed, then we need not waste our labour in studying its history and forms. One Act would be much the same as another, and all, from the standpoint of the ruled, would be Black. It is because law matters that we have bothered with this story at all. … Since we hold this value to be a human good, and one whose usefulness the world has not yet outgrown, the operation of this code deserves our most scrupulous attention. It is only when we follow through the intricacies of its operation that we can show what it was worth, how it was bent, how its proclaimed values were falsified in practice ... we feel contempt for men whose practice belied the resounding rhetoric of the age. But we feel contempt not because we are contemptuous of the notion of a just and equitable law but because this notion has been betrayed by its own professors.

Because social institutions are shaped by considerations of power, insofar as they fail in practice against their "proclaimed values," we should always be looking to isolate power as the culprit first, before institutions or values. Sometimes the two (or more) are bound up together; but this has to be demonstrated.

No minority opinion should be in a position of deciding -- certainly not as a measure of their radicalism -- which social institutions deserve to stay and which must go: again, not without demonstrating, as in the case of something like slavery, that what is arbitrary about power is bound up in the institution; and that by dismantling it we don't create greater possibilities for the unrestrained exercise of power.

1 comment:

Charles F. Oxtrot said...

The law is just like any other tool of power-maintenance.

It reflects the ideals of the society it regulates.

Its corruption and internal inconsistencies mirror those of the society it regulates.

The more corrupt and craven, yet clever and devious a society, the more complex and over-wrought its legal system -- especially its statutes and regulations.

One of my reasons for saying America is failed and must be balkanized is my 20+ years as a lawyer, seeing how the law is working now... how far it has gone afield from its original purposes.

I guess The Federalists from the Constitutional Convention would say it's hewing close to its original purposes, though. Which means, I guess, that I am an anti-Federalist.

Which is why I like balkanization.