The Law Is Not An Objective Practice, It Is A Tool Used By Those In Power To Keep Power

-- By UdokaOkafor - 01 Mar 2018

Taught To Believe That The Law Is Objective

When I was younger I had a naïve understanding of the law. I thought it was a neutral tool wielded to defend and advocate for those who were unable or prevented from advocating for themselves. I believed that when the 14th amendment of the Constitution stated "no state shall . . . deny to any person within its jurisdiction the equal protection of the laws" it could only be read to mean that all people are equal in the eyes of the law, and the laws would be enforced the same from person to person regardless of race, religion, or gender. I grew up being taught that lady justice was blind, and the constitution did not see race, and slavery was a momentary injustice in American history that was righted after emancipation.

Growing Disenchantment With The Law

As I grew older I learned that what I was being taught was far from the truth. The law is touted as an objective measure by those in power to mask their oppression of minorities. Congress is supposed to enact laws that benefit the people, but they enact the laws with favorable provisions that are lobbied for by wealthy donors. It is system that makes no sense. The most innocuous reason that can be given for this system is that it is a series of missteps that have gotten away from congressmen. They enact laws that placate their donors, and with the support of their donors they are able to do more good for the people. However, I doubt this is close to the truth.

It would be good to meet Congresspeople, and legislators generally. I think you will find that there are many kinds of people who wind up in legislatures, as in law schools, but that those who are trying to be public servants and to represent their voters and their districts are a very important—in many places, at many times—predominant fraction. You might have considered, however, the importance of the district as a third entity in between "the people" and "the donors." Representatives may only represent because keeping with the majority of the district is what wins re-election, or because representing is the job. (Or both, which is the most likely choice.) But if you are trying to make sense of the system, assuming that legislators are the creatures of donors—rather than of donors, districts, parties, interest groups, and people—may oversimplify with resulting loss of clarity.

Nor can we say, from moment to moment, issue to issue, that legislators respond to the same forces. Pharma may, as the late Uwe Reinhardt used to say, "possess a substantial equity interest in the US Congress," but senators who respond to the various reasons for doing what Big Pharma wants on some issues will have no difficulty ignoring it on others.

A lawyer's theory of social action will include lots of parts about how laws and regulations are made, and the people who make them. Each lawyer's theory will reflect experience, and become more subtle with time.

The congressmen wield real power when they enact laws, so they enact laws that are favorable to them and people like them without regard to their constituents. What are they really going to do? Vote the congressman out of office to be replaced by another who engages in the same practice? Congressman not only have no real incentive to do work only for the benefit of the people that they serve, but they are incentivized to do work for their donors less losing the election for their next term.

But we can also see that donors will differ in their interests, and that in most of what legislatures actually do (getting taxes in and spending what results) the interests of donors—though not usually in favor of increasing taxes on themselves—are easily played off against one another.

Judicial Opinions Are Not Unbiased

This is also true of judicial opinions. Judges often have their views on the cases decided before they begin to legally analyze the issue.

The important word here is "often." How do we know? We may think of cases in which judges' own social or political views will bring them to the case with some particular bias about what would be the right outcome. But are those cases frequent? Thinking downwards from the Supreme Court is probably unhelpful here. In the vast majority of cases—from traffic court to the commercial courts to the criminal business of responding to guilty pleas and holding very occasional trials—the judge's job is administering a well-understood system that responds to evidence on the basis of rules that apply fairly mechanically. If the judge has biases—and every judge has—they are both simpler, about how particular witnesses or evidence affects them idiosyncratically (what scientists call the "personal equation" of the viewer) and relatively easy to notice and overcome for a trained observer. You might take seriously the words of Judge Celia Day in Lawyerland about how trial judges consciously deal with the issue of their own biases.

The problem with this is that the same kinds of people are elected are appointed judgeships, so often the same few views are proliferated onto the masses.

Is that right? Judges are both appointed and elected, and while there are certainly pools from which both kinds of office-holders are drawn, I think when one considers all the judges in the society and all the legislators one would conclude that the two groups are really quite different. The judges, above the level of the town courts and small claims, are almost entirely lawyers, for one thing, which legislators historically, and even now, are not. Even elected judges are likely to be far less "political" in their behavior than politicians who seek legislative and executive office are.

We can say, of course, that against the background of the larger society, these people are all better-educated and likely to be wealthier than the community they help to lead. It's hard to find societies in which this is not true.

There is no unbiased legal application that is used to render decisions, it is what the judge believes the best outcome ought to be. The problem becomes when this "best outcome" often stifles the voices of minorities. This is a well-known truth that judges seem to deny. Take for example outrage expressed by Judge Posner's pragmatic judging approach. "I pay very little attention to legal rules, statutes, constitutional provisions," Judge Posner said. "A case is just a dispute. The first thing you do is ask yourself - forget about the law - what is a sensible resolution of this dispute?" Although practical and just to those who use this approach, this practice only benefits those who are currently in power believe need advocating for. Those in power and those who are currently in power continue to empower those who are like them, leading to the few constantly in power over the many.

The few are in power "over" the many, because the many are many and the government are few. As Aristotle said in the Politics, the poor also are always many, and the rich are always few, so the difference between democracy and aristocracy is not whether the few or the many govern, but whether government is conducted in the interest of the rich or of the poor.

This is a good point, which like Aristotle you think other people aren't taking fully aboard. And indeed—in a society which has become far more aristocratic in my lifetime, as wealth was powerfully concentrated and power moved inexorably in wealth's direction—I think that too. But I don't think that law is inherently aristocratic, because I see around me so much of the democratic effort built into law over the course of the 20th century which, whether it is currently in favor or not, is also its future later in the 21st. What would make the essay stronger, in my view, is a revision that takes both aspects of our situation into account. Treating law as a reflection of society over time (adding history, that is, to the disciplines that comprise a lawyer's theory of social action) allows critique—including that which has been vitally important for almost three thousand years—to coexist better with action, which occurs "now," in relation to both past and present hopes.

1 https://www.nytimes.com/2017/09/11/us/politics/judge-richard-posner-retirement.html

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