Beasts of the Law

-- By VendarrylJenkins - 01 Mar 2018

What Makes Law Essential

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.”

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 Law's cure is a greater social evil

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.

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.

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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