Law and Justice

Law and Justice
July 17, 2000

1. “Obey the law!”
That is a powerful teaching, often powerful enough to overcome deep feelings of right and wrong, even to override the fundamental instinct for personal survival.
We have learned very early that we must obey “the law of the land”…it is not in our genes as human history began with an act of disobedience, if you believe in a tooth fairy like Genesis in Old Testament—the bite into the forbidden apple.

The unspoken and unexamined premise is that the law is right, and by implication, just and even moral.
However, there is clear distinction between law and justice.
Justice means the fair treatment of all human beings, the equal right of all people to freedom and property.
Take for example, an act of civil disobedience—the deliberate violation of a law for a social purpose—to achieve social justice. To violate a law for individual gain, for a private purpose, is an ordinary criminal act. Some acts fall in both categories, as in the case of a mother stealing to feed her children, or neighbors stopping the eviction of a family that has not been able to pay the rent. In either instance, the law is being disobeyed, which sets up strong emotional currents in a population that has been taught obedience from childhood.

2. Where is our obligation: to law or to justice?
The answer is given in democratic theory at its best, in the words of Jefferson and his colleagues in the Declaration of Independence.
Law is only a means as a Government is only a means. “Life, Liberty, and the pursuit of Happiness”—these are the ends. And “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new government.
The Declaration of Independence try to make clear that the people of the country set up the government, to achieve the aims of equality and justice, and when a government no longer pursues those aims of equality and justice, it loses its legitimacy, it has violated its obligation to the citizens and deserves no more respect or obedience.

Life would be chaos, if we allow disobedience to law and we will have anarchy. That idea is inculcated the population of every country. The accepted phrase is “law and order.” It has a phrase that has strong appeal for most citizens, who, unless they themselves have a powerful grievance against authority, are afraid of disorder.
In the 1960s, a student at Harvard Law School addressed parents and alumni with these words: “The streets of our country are in turmoil. The universities are filled with students rebelling and rioting. Communists are seeking to destroy our country. Russia is threatening us with her might. And the republic is in danger. Yes! Danger from within and without. We need law and order! Without law and order, our nation cannot survive.”
There was prolonged applause. When the applause died down, the student quietly told his listeners: “These words were spoken in 1932 by Adolph Hitler.

Surely, peace, stability, and order are desirable. Chaos and violence are not. Nevertheless, stability and order are not the only desirable conditions of social life. There is also justice.
Absolute obedience to law may bring order temporarily, but it may not bring justice. And when it does not, those treated unjustly may protest, may rebel, may cause disorder. There have been a plethora of rebellions, revolution, coup de tat, and violent demonstrations in order to achieve justice in violation of laws.
The law may serve justice, as when it forbids rape and murder or requires a school to admit all students regardless of race or nationality. However, when it protects the rich and punishes the poor, then law and justice are opposed to one another.
The orthodox notion is that law and order are inseparable. Nevertheless, absolute obedience to all laws will violate justice and eventually lead to enormous disorder. Hitler, calling for law and order, threw Europe into the hellish disorder of war.
Every nation uses the power of law to keep its population obedient and to mobilize acquiescent armies, threatening punishment for those who refuse. Thus, the law that inside each nation creates conscript armies leads to the unspeakable disorder of war, to the bloody chaos of the battlefield, and to international turmoil.

3. Rule of Men vs. Rule of Law
Many believe that modern era of laws like the Magna Carta, the American Constitution, and Napoleonic Code, replaced the arbitrary rule of men with the impartial rule of law.
The rule of law claimed to be impersonal, neutral, apply equally to all, and therefore, democratic. However, what was done before—exploiting the poor, sending the young to war, and putting troublesome people in dungeons—is still done, except that no longer seems to be the arbitrary action of the feudal lords or the kings; it now has the authority of neutral and impersonal law.

The law appears impersonal. It is on paper, and who can trace it back to what men? And because it has the look of neutrality, its injustices are made legitimate. It was not easy to hold onto the “divine right” of kings—everyone could see that kings and queens were human beings. A code of law is more easily deified than a flesh and blood ruler. Under the rule of men, the oppressor was identifiable, and so peasant rebels, hunt down the lords, slaves killed plantation owners, and revolutionaries assassinated monarchs.
In the era of corporate bureaucracies and the rule of law, the enemy is elusive and unidentifiable.
In John Steinbeck’s depression-era novel, The Grapes of Wrath, a farmer having his land taken away from him confronts the tractor driver who is knocking down his house. He aims a gun at him, but is confused when the driver tells him that he takes his orders from a banker in Oklahoma City, who takes his order from a banker in New York. The farmer cries out: “Then who can I shoot?”

The rule of law does not do away with the unequal distribution of wealth and power, but reinforces that inequality with the authority of law.
It allocates wealth and poverty (through taxes and appropriations) but in such complicated and indirect ways as to leave the victims bewildered and confused to remain ignorant about it. The greatest wealth and largest fortunes are acquired legally, aided by the laws of contract and property, enforced in the courts by friendly judges, handled by shrewd corporation lawyers, figured out by well-paid accountants.
Wall Street financiers in 21-century are mere epigones compared with their mighty forebears of robber barons who flourished during the post-Civil War era. The federal government gave out pro bono freebooting railroad capitalists millions of acres of land untrammeled and untaxed, under the guise that they would build up the country for the benefit of all people. Carnegie becomes iron-master, Rockefeller enters oil trade, House of Morgan controls banking sector.

4. Equal Justice under Law
It is just a crock to claim that the rule of law has replaced the rule of man. It is still men who enact the laws, who sit on the bench and interpret them, who occupy the White House or the Governor’s mansion, and have the job of enforcing them. These men have enormous powers of discretion.
Modern system of the rule of law is something like roulette. Sometimes you win and sometimes you lose. But as in roulette, in the end you almost always lose. In roulette, the results are fixed by the structure of the wheel, the laws of mathematical probability, and the rules of the house. In society, the rich and strong get what they want by the law of contract, the rules of the market, and the power of the authorities to change the rules or violate them at will.

How can this be? Didn’t the modern era bring us democracy? Who drew up the Constitution? Wasn’t it all of us, getting together to draw up the rules by which we would live, a social contract? Doesn’t the Preamble of the Constitution start with the words: “We, the People, in order to…etc., etc.,”?
In fact, the Constitution was still a document drawn up by rich men, merchants, and slaveowners who wanted a bit of political democracy, but had no sympathy for economic democracy. It was designed to set up a rule of law, which would efficiently prevent rebellion by dissatisfied elements in the population like Shay’s Rebellion.

Equal justice under law is the slogan one sees on the marble pillars of the courthouse. And there is nothing in the words of the Constitution or the laws to indicate that anyone gets special treatment. They look as if they apply to everyone.
Still the system of laws must keep up the appearance of fairness in order to maintain its standing in the eyes of the citizenry and to provide safety valves by which the discontented can let off steam.

5. The trial of Socrates and Civil Disobedience
The idea of obligation to laws and to government remains powerful, as we are intimidated by the word patriotism and afraid to be called unpatriotic.
The obligation that people feel to one another goes back to the very beginning of human history, as a natural spontaneous act in human relation. However, obligation to government is not natural and it must be taught to every generation.
Who can teach this lesson of obligation with more authority than the great Plato can?

In Plato’s dialogue, Crito, Socrates in prison and facing death for speaking his mind to the young, is urged by his friend Crito to escape. Socrates refuses, arguing that he must obey the decision of the state.
Plato has Socrates saying (we have no way of knowing if these are Socrates’ words or if Plato is putting his favorite ideas into Socrates mouth, for Plato wrote this dialogue decades after Socrates’ death, Socrates had left no writings of his own, we have no transcript or court records, and of his many disciples there have survived only the writings of Plato and Xenophon.): “ In war, and in the court of justice, and everywhere, you must do whatever your state and your country tell you to do, or you must persuade them that their commands are unjust.”
On the contrary, it is curious that Socrates—according to Plato in his dialogue, The Apology—was willing to disobey the authorities by preaching as he chose, by telling the young what he saw as the truth, even if that meant going against the laws of Athens. Yet, when he was sentenced to death, and by a divided jury—the vote was 281 to 220—he meekly accepted the verdict, saying he owed Athens, obedience to its laws, giving that puny 56 percent majority vote an absolute right to take his life.

Plato is enticing us to confuse the country with the government, and in Xenophone’s memorabilia, Socrates was not democratic in formulating his theory of government ruled neither by the few nor the many, but by the one who knows and called the ruler as shepherd of the people, because a shepherd must see that his sheeps are safe and fed.
It would be reasonable to believe that the good shepherd does indeed see that his flock is safe and fed, but the ultimate purpose of the shepherd is to shear the sheep for their wool and eventually to sell them for mutton. The herd is destined for the meat market, and the sheep are not consulted by the shepherd when he decides their time has come.
The lessons the Greeks drew from the shepherd analogy is that the sheep cannot trust their shepherd however benevolent he claims his purpose to be.

It seems that idea of owing, of obligation, is strongly felt by almost everyone.
Patriotism assumes that the earth is divided into little spots, each one surrounded by an iron gate, the manifestation of conceit, arrogance and egotism. Those who had the fortune of being born on some particular spot, consider themselves better, nobler, grander, stronger, and more intelligent than the living beings inhabiting any other spot. It is, therefore, the duty of everyone living on that chosen spot to fight, kill, and die in an attempt to impose his superiority upon all others.
Even, symbols of patriotism—flag, the national anthem—become objects of worship, and those who refuse to worship are treated as heretics.
If patriotism were defined, not as blind obedience to government, not as submissive worship to flags and anthems, but rather as love of one’s country, one’s fellow citizens (all over the world), as loyalty to principles of justice and democracy, then patriotism would require us to disobey our government, when it violated those principles.
In his famous Civil Disobedience, Henry David Thoreau said; a common and natural result of an undue respect for law is, that you may see a file of soldiers, captains, corporals, privates, powder-monkeys, and all, marching in admirable order over hill and dale to the wars, against their wills, against their common sense and consciences, which makes it very steep marching indeed, and produces a palpitation of the heart.