Law

-- By MatthewSienkiewicz - 09 Apr 2013

The Law

In his famous dissent in Plessy v. Ferguson Justice Harlan acknowledged a sobering reality about the law. While the law can reinforce difference between segments of society, in that case it was racial lines that divided society, the law has little power to break these differences between us or to bring people together. Law divides.

This is not without implication. It would seem the Constitution; the document that stands for freedom does not give anything. Rights are not given by the Bill of Rights they are guaranteed by it. We are told that, that which we already have will not be taken away, not that we are going to be given something we did not have before. Freedom, we have always at inception, but always it has been abridged by one system of law or another. This is a little tenuous and academic but there is something more I can feel it I just could not quite grasp it.

Outside the Box

It’s a Friday afternoon. I can’t help but revel in the beautiful day: somewhere around 60 and one of the first sunny Fridays of the year. I am downtown at City Hall Park sitting on a bench in the sun, partially regretting not having brought sunscreen, partial not caring at all.

I’m here outside the box to try and think outside the box. What is law? In the bubble, the law school’s version of the law reigns. The law school version is defined by big books filled with cases from days past that hand down what the law is. In the bubble the law is set of rules argued over and created by a certain segment of society that control the behavior of society. But I’m in the bubble I am thinking what everyone else here is thinking perhaps there is more to this law thing than bunches of pages in bound tomes.

As I am sitting in the park, thinking about this I begin to notice the people surrounding me. Being downtown I am privy to a better, if not complete, cross section of the denizens of this great city, than in the ivy academic bubble. The people in the park are fascinating. Next to me there is an old women also watching the people, from behind big Ray Ban sunglasses and an even bigger Starbucks coffee. Across our vision goes a man, head down, moving quickly in a hurry, bag of tools, stained jeans, and work boots all marking him as involved in building services. Following him come a pair of men in well cut suits carrying leather bags (I might even venture that they were lawyers, though they very well could have been bankers, or anything else really) bemoaning the costs of renovations to one of the buildings overlooking the park. The group trailing the suited men wears plaid shirts, round horn-rimmed glasses, and have their hair deftly combed in the way that only those that truly believe themselves to be hip can do it. My favorite thing about this group of guys is that they are having a matter of fact discussion about restrictions on prostitution. All of this was happening in a sea of heavily branded and conspicuous shopping bags.

I came to the park to consider the law and as I sit there and see people go by I begin to wonder what law means to them. In a lot of ways that is perhaps a much more important question than what it means to people studying law in a dry academic context.

Something Learned, Perhaps

To answer that question it seems necessary to consider what is important to the people that I have seen. Obviously, based on a sweep of my gaze as they happened past me I am not going to be able to form a sound judgment on the sum total of those things that the people consider important. That being said, based on my observations I can draw some fairly consistent conclusions. Basically people care about stuff, tangible possessions.

The lines now are no longer racial, or at least not overtly so, the lines are socio-economic. Certainly an argument can be made that the lines before were really socio-economic, when they were facially racial, and also that the lines that now seem to be more overtly socio-economic have a serious racial component to them. Either way one of the most significant things that law does today is draw lines, or at least reinforce lines that are drawn by other aspects of our society, concerning the distribution of stuff.

That’s what matters to the people I see at the park. Law determines the things the old woman gets in retirement. Where the workman’s next job is going to come from is determine by law. Law specifies the modifications that can be made to the buildings around the park. The conversation of the last group of guys, prostitution, is certainly determined by law.

The law is not just reinforcing who has what in terms of the status quo it is reinforcing the notions that we as a society have of who should have what. This is a scary thought when combined with Harlan’s lament. Law can reinforce existing determinations but cannot help us remedy the inequities inherent in these lines. As a society we have come a long way since the time of Plessy, though to a certain extent that perhaps blinds us to other problems that have filled the spaces we have opened. The progress, I think, has been made by lawyers being creative enough to not just get the law out of the way of breaking racial lines, but actually bending the law to that purpose. The next task of creative lawyers is bending law to the purpose of breaking down socio-economic lines. I don’t know what it will take, perhaps constitutional amendments, but I do think that it can be done.

I think this is less successful than your previous drafts because the contrivance is too heavy. Heading down into Larry Joseph's neighborhood is a starting-point, but the effort presses too hard: you need whatever you happen to see to mean whatever it is you happen to need it to mean. In the end, it turns out, law affects people.

Connecting this to your legal idea requires not-very-neat welding. And the idea—that class has replaced race as the primary line of division in society—is a matter of interpretation rather than fact, no matter which of the thousand ways it could point you point it. So what is the implication: why would this either/or formulation matter, whichever way it fell, given that neither class _nor_race, nor any of the other lines along which power distribution is organized, ever "goes away."

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