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| | | -- By VendarrylJenkins - 01 Mar 2018 | |
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< | What Makes Law Essential | >
> | Law: Good or Bad | | | | |
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< | An essential question for anyone that undertakes the pursuit of legal study is, what is the purpose of the law? Most arrive at the common utilitarian explanation. The law is a tool to promote the greatest societal good as a body of rules that effectuate justice and equality. In fact, Maxwell Anderson went so far as to say that, “without law men are beasts.” | >
> | When I first began to learn about law, it was presented in terms of justice. There was the bedrock of written law, which we learned was the Justinian code. As I was taught, the evolution of that law throughout societies informed me that no one was above the law. My teacher used to say that law was the great equalizer of all men. But, today I understand a different reality. I understand that justice for all, still does not include little Black boys and girls, and while the law may apply to all, it applies differently. I have reconciled my teachers’ position that law created order for society, and therefore promoted a necessary societal good. However, the order that law has created is one in which a race is oppressed. The law has created an order, but order itself is not inherently good, and in fact the present order the law has created is an injustice. Law devoid of justice is a great evil. Maxwell Anderson said that, “without law men are beasts.” But the current laws have relegated a race of people to that subhuman class. | | | | |
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> | The Law's cure is a greater social evil | | | | |
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< | Law can certainly exist without any commitment to equality. Almost
all legal systems that have ever existed did so. That might be the
purpose of law somewhere, but not the purpose of all law. Justice
may be assumed to be the purpose of law overall in all systems of
law, but it is surely not the purpose of all laws in such a system.
Speed limits and other traffic regulations, like many of the rules
of commercial exchange, promote not justice but certainty, aiding
the predictability of social life in a fashion that would be equally
served if the rules were equally predictable, but different. In
those settings, which are considerable in every legal system, the
rules are not about justice, unless justice is redefined. Whether
the purpose of law is to promote "the greatest societal good" is,
for the reasons you present below, doubtful. So what is the reason
for this introduction? Wouldn't it be better to present your
essay's central idea directly? | >
> | The contention that law is a utilitarian tool that promotes the greatest amount of good, fails as one examines the current state of incarceration for many of the most at risk members of the community in the United States. The explosion of the percentage of African Americans behind bars is a result of a campaign labeled the War on Drugs. It pushed severe sentencing for both using and selling drugs. The effort was an attempt to thwart the drug epidemic that many argued was ripping through urban minority communities with dangerous addiction. The aim was an obvious societal good. However, the true result has been the incarceration of nearly one in every four Black men. It is impossible to reconcile the theory that law is a utilitarian tool when it has been used to bring about an even greater evil than the evil it was meant to cure. Law cannot be both a system that brings about the most good, yet also be a system that promotes oppression, degradation, and inequality. This points to a fundamental contradiction in the purpose of the law, and how it interacts with our reality. Every law has a proceeding effect, and those results must become a factor calculated in the arithmetic of good and bad law. | | | | |
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> | The Law Betrays our Innate Beastly Inclinations | | | | |
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> | A common result of the law has been the disenfranchisement of a significant number of Black Americans, numbering in the millions. While this is a policy decision left to the states, it demonstrates the precision with which powers have compounded injustice and left little room for a single challenge to remedy the injustice. The disenfranchisement obfuscates the most basic principles of freedom and democracy, traded away to promote a drug free America. The law is a system that has found fit to hold captive the most fundamental aspects of human society, freedom and enfranchisement, and traded them away for the basic aim to prevent drug usage, and other so called “immoral” crimes. It demonstrates an inability to leverage proper deterrent techniques and underscores the innate beast, which would defer to draconian measures. We have order, but it is bad order. | | | | |
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< | The Law's cure is a greater social evil | >
> | Fixating on Small Social Ills to Avoid Great Legal Failures | | | | |
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< | Yet, the contention that law is a utilitarian tool that promotes the greatest amount of good, fails as one examines the current state of incarceration for many of the most at risk members of the community in the United States. The explosion of the percentage of African Americans behind bars is a result of a campaign labeled the War on Drugs. It pushed severe sentencing for both using and selling drugs. The effort was an attempt to thwart the drug epidemic that many argued was ripping through urban minority communities with dangerous addiction. The aim was an obvious societal good. However, the true result has been the incarceration of nearly one in every four Black men. It is impossible to reconcile the theory that law is a utilitarian tool when it has been used to bring about an even greater evil than the evil it was meant to cure. Law cannot be both a system that brings about the most good, yet also be a system that promotes oppression, degradation, and inequality. This points to a fundamental contradiction in the purpose of the law, and how it interacts with our reality. | >
> | It was the law that allowed the senseless gunning down of Trayvon Martin, and more dramatically, it was the law that permitted slavery, promoted anti-miscegenation, failed to punish the thousands responsible for lynching and torturing Black bodies, ensured the Black and white wealth gap through redlining, and diluted the Black vote through gerrymandering.
The law allows us to point to those that use drugs, or steal, we label those people as the beasts of society that must be contained. Why is it so easy to go to jail for drugs, yet so hard to punish hate crimes, or sexual assault, or discrimination based on race, gender, and religion? Why have we failed to punish the deepest evils plaguing our society, and in fact used the law to exacerbate them? We allow the real beasts to roam free, unchecked by the law. Their actions do not meet the definition of illegal, so we say they are not beasts at all, though it is them that make life nasty, brutish, and short for the oppressed. | | | | |
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> | The Gavel of Bullies | | | | |
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> | In reality, the law is the source of power for the powerful. It is the method that they use to exact their will on the weaker members of society. They are the same beasts of lawless times, yet instead of using brute force, their exploitation and dominance is maintained through the written word, and therefore the force is legitimized. But, laws that betray justice, are not legitimate, and laws that perpetuate greater evils than the social harms they were meant to prevent are intolerable. It would seem that the law has been abused to ensure the greatest suffering and unhappiness for millions of Black Americans, betraying its utilitarian and moral purpose. Surely, there have been the great victories of justice for society ushered in through law, but we can name those victories so easily because they are so rare. | | | | |
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< | This paragraph would have been stronger without the machinery it had
to carry from the prior one. A general proposition that you don't
believe anyway is being confronted by a specific instance. But
everyone will agree that no matter what the purpose of any social
institution or cultural practice—let alone one as broad as the
system of law—there will be instances that don't conform to
the prevailing ideological or cultural justification of the
practice. Pure functionalism won't work as a form of
anthropological description, as pure rationalism won't work as a way
of interpreting human psychic life. Whatever law aspires to be, in
whatever local cultural understanding of law is in use, it will fail
to be from time to time, probably often. Here too we are at least
as concerned with policy as with law: that is, what objectives
social organizations are self-consciously attempting to achieve, as
well as the technical means by which we achieve them. Conflating
the system's rules with its policy choices further blunts what you
are trying to say. | >
> | My Black Lawyer's Guide | | | | |
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The Law Betrays our Innate Beastly Inclinations
A common result of the law has been the disenfranchisement of a significant number of Black Americans, numbering in the millions. The disenfranchisement obfuscates the most basic principles of freedom and democracy, traded away to promote a drug free America.
But disfranchising people who have felony convictions is a separate policy implemented by rules that are not the rules of drug control. We could have any possible rules of drug control with or without rules of felony disfranchisement. (One set of rules is federal, through preemption, while the other is constitutionally a matter of state law, as a result of which we do in fact have diversity of outcome.)
The law is a system that has found fit to hold captive the most fundamental aspects of human society, freedom and enfranchisement, and traded them away for the basic aim to prevent drug usage. Trading high ideals and rights, for basic aims is surely a signifier of the beast that still lurks within a society ruled by law. It demonstrates an inability to leverage proper deterrent techniques and underscores the innate beast, which would defer to draconian measures.
But that presents a view of social life that doesn't account both
for all the other responses to drug use that also exist, and all
the forms of law that aren't either about drug control or felon
disfranchisement. Talking about "the law" meaning "a couple of
laws," and "society ruled by law" as meaning "society ruled by
nothing but law" doesn't advance our understanding as much as a
lawyer's theory of social action in which law (singular and
plural) has a modestly important but not determinative place.
So perhaps it would be better stated that the law allows men to be beasts without remorse; it criminalizes behavior that one can easily point to as a social ill and then allows dramatic and cruel forms of punishment for such acts.
But law is not only
criminal law, and the mode of criminal law is not representative of
all the legal modes existing in this or any other system. Maybe
this is a conclusion about how criminal law works. Or maybe the
conclusion is about more than law, about the power of the nation to
declare itself innocent.
The law allows each of us to look outward, rather do any sort of moral reflection when we determine whether we are good or bad, or put differently if we are beasts or not. All one must do is abide by the baseline of morality prescribed by law to not be a beast.
Fixating on Small Social Ills to Avoid Great Legal Failures
Yet, it was the law that allowed the senseless gunning down of Trayvon Martin, and more dramatically, it was the law that permitted slavery, promoted anti-miscegenation, failed to punish the thousands responsible for lynching and torturing Black bodies, ensured the Black and white wealth gap through redlining, and diluted the Black vote through gerrymandering.
The law allows us to point to those that use drugs, or steal, or even drink in excess and drive, and we label those people as the beasts of society that must be contained. Doing so allows many to easily evade the label. Why is it so easy to go to jail for drugs, yet so hard to punish hate crimes, or sexual assault, or discrimination based on race, gender, and religion?
But we do use law against those ills, not always in the criminal
mode. We aren't successful in eliminating those ills, but the
extent of change in my lifetime alone has been considerable. In
assessing where we have made progress and where we haven't, we
should sometimes find, I think, that law has not been the area of
social practice that has most frustrated our efforts.
Why have we failed to punish the deepest evils plaguing our society, and in fact used the law to exacerbate them? It is because we all want to point to the small beast, and hide from the big ones amongst us—too scared to confront them. We allow the real beasts to roam free, unchecked by the law. Because their actions do not meet the definition of illegal, we say they are not beasts at all, and those more minor societal infractions are the villains that would make life nasty, brutish, and short if we allowed them to persist.
The Gavel of Bullies
In reality, the law is the source of power for the powerful. It is the method that they use to exact their will on the weaker members of society.
Yes. And also the opposite, the way that parties without power struggling for their own ends—dignity, better pay and working conditions, access to the ballot box, racial integration of schools and public accommodations, etc.—have enforced those aims on the powerful. We can see that the legal order, like other social institutions serves power more often and more completely than it serves powerlessness, but we cannot see with open eyes and believe that it is useless for other purposes.
They are the same beasts of lawless times, yet instead of using brute force, their exploitation and dominance is maintained through the written word, and therefore the force is legitimized. But, laws that betray justice, are not legitimate, and laws that perpetuate greater evils than the social harms they were meant to prevent are intolerable. It would seem that the law has been abused to ensure the greatest suffering and unhappiness for millions of Black Americans, betraying its utilitarian and moral purpose
My Black Lawyer’s Guide
So, if I must inherit the power inequalities that accompany being a Black man in America, I may as well understand the tool being used against me. If I cannot beat the oppressor, I may as well learn to evade his traps. If I cannot break down the doors of the jails, I may as well understand how to keep future generations beyond its death grip. So, when asked, why I return to the classroom and take on astronomical debt, the answer is simple: survival. Some people live in a world of choices, because they’ve never had to shout out in chorus, “I can’t breathe,” but others of us live in a world of exigencies.
We all live in both worlds. Choice and exigency are both human
realities and both are also human mental constructs. That one can
survive as a black man in this society without being a lawyer is
true, as it is also true that knowledge of and ability to use law is
even more valuable for those whom the legal system does not
automatically favor, or against whom it is most damagingly used.
Having come to the general conclusion, however, does not leave
behind the question how one particular man's valuable life should be
spent. Being a lawyer is only one way you can be yourself, and be
of service to people around you, serving whom makes you more of who
you are. Deciding to be a lawyer therefore is both more important
and less general than this language shows.
Overall, I think the best route to improvement of the essay is to
make its central idea clearer from the outset. I've tried in the
comments to show where a reader trying to understand your pathway of
thought might be unnecessarily diverted. Clarifying, at the very
outset, what your animating idea is will make the resulting
discussion both easier for the reader to follow and, I think, more
powerful in moving her or him.
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> | So, if I must inherit the power inequities that accompany being a Black man in America, I may as well understand the tool being used against me. If I cannot beat the oppressor, I may as well learn to evade his traps. If I cannot break down the doors of the jails, I may as well understand how to keep future generations beyond its death grip. Some people live in a world in which they’ve never had to shout out in chorus, “I can’t breathe,” but I hope the value I add to the profession will ensure that does not remain my reality. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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