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"Democracy and law may someday be synonyms, but presently, they are more often antonyms. Laws are made primarily by and for the powerful, in order to govern and control the powerless. Principled concern over who serves on the court is understandable, and even necessary. But it should be second to a primary concern over whose interests the court really serves."
"It is better to suffer a great wrong than to have recourse to the much greater wrong of the law."
-- Charles Dickens
We are taught to be proud that we are a nation of laws, and that no one is above the law, no matter how much wealth or power that person may possess. While there are occasional examples of this equality, exalted by those who make the laws and benefit most from them, the opposite is far more true for the general population. The more money and power you have, the more law works for you; the less money and power, the more bamboozled you are kept to believe in this equality.
Concern over the selection of new supreme court justices is valid, but too much stress on laws and the people who rationalize them, and too little on the systems they reinforce has helped create a severely limited democracy in which wealth and power are permanently kept in minority hands, in hopes they will be benevolent in dispensing this power. Sure.
The origins of western law are found in biblical mythology; Moses went up the hill, not to fetch a pail of water, but to come down with god's laws for the faithful. Like much mythology, this fable is a version of material reality which lives on, in that laws still come from above, and filter down to common folk through middle men of a priesthood. Whether those priests are employed by a church, a court or a corporation, they still work for a ruling class.
The language of the law is almost completely foreign and even unintelligible to the majority under its control. It is poetry to its writers and their employers, since it works for the maintenance of systems which empower rich minorities and enable them to keep that power.
Whether Supreme Court justices are liberal or conservative, they serve to protect property and wealth, even though most people have neither. In this, they are no different from the other two branches of government. Trying to balance the potential inherent in our fabled separation of powers is an admirable, if still mostly theoretical aspect of our system. The Supreme Court's job is to rubber stamp the laws that make the system supreme, even if in the process it sometimes benefits a minority that may not be rich, but is certainly powerful enough to have some clout at the court.
Until a democratic majority can control the minority power of wealth, praising the law and enforcing the legality of our system is sanctifying the status quo. Given the dangerous state of material reality, that is the problem, not the solution.
When the recently deceased Rosa Parks was lauded for displaying the power of the individual, this was more legal mythology employed to reinforce and not really challenge entrenched power. Parks was a wonderful woman but she was a skilled, militant activist, representing not herself but a group just waiting to challenge ugly racism in court. She, they, and we, won the case, and overt apartheid ended. But racism continues, sometimes blatant and often bloody, because having an active and financially capable minority bring about change on the law books merely serves to maintain the system that still thrives on institutional racism, while frowning on the individual kind. But it is the social force that must be confronted, and won't be as long as we venerate the laws of institutions which represent anything but a majority of the people.
Continued reliance on courts and lawyers to solve deeply rooted social problems can make life better for the small groups, which can afford the protections of those laws. But legal strengthening of a system, which depends and feeds on inequality, does nothing to change its substantial reality. Our democracy remains a work in progress, but it won't reach fruition until we examine its origins, coming from those who could legislate freedom while they owned slaves, and exclude more than half of humanity - women -from their democratic theory.
The founders of our democratic faith represented the landed gentry, whose laws were designed first and foremost to insure their powers of property ownership. The same was true in ancient Greece, a slave society that enabled philosophers to ponder life's meaning for their employers, while others did the work to make life possible. And it was true in ancient biblical mythology, in which the fable of Moses merely indicates that the rulers ruled with power reinforced by the deity. We still pledge such faith in our modern courtrooms.
Present legislation around issues like crimes of hate or war are dangerous examples of how law can be used to obscure larger reality. Defining specific acts of individual hate or war as criminal means that all other aspects of hate and war are legal. We criminally charge individuals for personal hating, but leave untouched the social, religious and political foundation of hatred. In the same way, individual warriors are tried for crimes, while the mass murders of war and the governments, which conduct it, remain unquestioned.
Such laws may insure the power of material wealth and its lawyers, but they do nothing to heal deep social wounds or solve menacing social problems. They simply reinforce the power of those most responsible for inflicting those wounds and creating those problems.
Democracy and law may someday be synonyms, but presently, they are more often antonyms. Laws are made primarily by and for the powerful, in order to govern and control the powerless. Principled concern over who serves on the court is understandable, and even necessary. But it should be second to a primary concern over whose interests the court really serves.
by courtesy & © 2005 Frank Scott
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