Okay, you pesky commoners, you want me to say it, I'll fucking say it:
As a result, law has been completely perverted from what it was intended to be – the guarantor of an equal playing field which would legitimize outcome inequalities – into its precise antithesis: a weapon used by the most powerful to protect their ill-gotten gains, strengthen their unearned prerogatives, and ensure ever-expanding opportunity inequality.Is this what they teach you in law school? What is an equal playing field? Hello, Tom Friedman, is that you? "Legitimize outcome inequalities"? Um what again? I suppose it's a pleasant self-flattering fantasy to imagine that one's sort-of vocation is in the service of ensuring an equitable social order. The law does nothing of the sort. The law doesn't legitimize outcome inequalities; the law preserves inequality. The law doesn't guarantee equal opportunity; the law determines starting position. The law is an invitation to The Masters. Since it was first written down--since before it was first written down--, the law has distinguished, in one way or other, explicitly or by implication, between masters and slaves.
-Glenn Greenwald
102 comments:
For the record, I didn't bring it up so you could repeat back to me what I think you think so that I can feel more comfortable thinking what I think because you do too.
I just figured you and others would enjoy it if they hadn't seen it.
What you're saying has also been excellently said by the best political philosopher ever, Albert Jay Nock. The Constitution certainly intended and intends nothing like what Greenwald suggests "the law" was intended to accomplish. But What is Law? So that we don't have to abdicate this word entirely to the barbarians, I suggest the definition proposed by the only lawyer who's ever been worth a shit is pretty good: http://lysanderspooner.org/node/24
didnt st paul have something to say about (fucking?) the law???
One of the highest types of comedy on the Toobz is Greenwald calling himself a "constitutional litigator" and implying he's an expert on the Constitution, its history, its meaning in the big picture.
Dude's so full of himself that he's quickly going to displace Alan Dershowitz as Legal Ego of the present era.
I think in law school he was busy looking for the best wines and silk cravats, rather than thinking about what he was memorizing.
Yes yes, the law has a sordid history and remains an ugly beast, and Greenwald for whatever reason doesn't like to talk about this. But show me one place on Earth other than the inside of a courtroom where a rich man has paid millions of dollars to a poor man for a wrong done by the former to the latter, or where an enemy of the state has been allowed to walk free because the state didn't build a compelling case against him. It's a shit system, but it has its moments. Greenwald's complaint is that those moments are becoming less frequent.
Underwhelming? Sure. But until the anarchists manage to SMASH THE STATE!(tm), some people probably think that the erosion of the rule of law is worth paying attention to.
FYI, law school is full of courses on Critical Legal Theory, which focuses on exactly the critiques you make here. One student might focus on these courses, but another might focus instead on courses that will help him get poor people out of jail or hold corporations accountable for some of their misbehaviour. You tell me which of these two is the bigger wanker. (NB: I was one of the former, and now work as a corporate lawyer.)
well, I mean that was his job. dude may be persistently naïve, but it's not like he doesn't know what the Constitution says, despite what it means in practice.
the "equal playing field" bit is at the not-even-wrong level of incoherence (and not just because it lacks an operand: the field is equal with what?) but the premise seems to be that previously, the use of the law to protect elites was covered by a fig leaf of one law for all: that "the explicit, systematic embrace of the notion that such malfeasance should be shielded from legal consequence" is the novelty.
what seems most notable about this development is that the "two-tiered system" is so universally understood that they don't even bother with the cover story any more.
IOZ, you ever give this a read?
http://www.amazon.com/Cracks-Constitution-Ferdinand-Lundberg/dp/0818402792/ref=sr_1_sc_1?ie=UTF8&qid=1319656507&sr=8-1-spell
Others? It did a pretty good job of cracking my libertarian shell...
It does a thorough job of demolishing US Constitution fundamentalism's basic tenants.
yes.
IOZ,
As always, you produce the highest quality thinking-man's vitriol on the web, especially useful for melting contemporary political fictions. And I truly mean that as a complement.
Picador, the law is what creates the social context for people to exist as poor, rich, and for the former to fuck over the latter in the first place.
Greenwald's complaint is that those moments are becoming less frequent
Manifestly untrue as a representation of Greenwald's complaint. Greenwald's complaint is, here, I'll quote, the "law has been completely perverted from what it was intended to be – the guarantor of an equal playing field which would legitimize outcome inequalities – into its precise antithesis: a weapon used by the most powerful to protect their ill-gotten gains, strengthen their unearned prerogatives, and ensure ever-expanding opportunity inequality."
That's not a decreasing frequency of preferred outcomes he's complaining about, he says he is describing a "complete perversion from intent."
Dearest IOZ,
Greenwald doesn't seem to really understand what he is saying, nor do you: "The law doesn't legitimize outcome inequalities; the law preserves inequality."
Of course the law preserves inequality. The point is that such preservation is made possible by the veneer of legitimacy that those unequal outcomes receive when they are prescribed by Law.
I've got to say I'm a big fan of Greenwald's. I suspect that like Assange he might come right out and call himself an Enemy of the State if he didn't appreciate that doing so would needlessly diminish the height of his soapbox.
In this context it might not be inappropriate to invoke Nock's distinction between "government" and the State. The purpose of "government" is "to secure these rights." (According to Nock, the Native Americans had such "government.") Also, Nock was a Georgist and presumably viewed the ends of Georgism to be proper ends of government. Whether you agree with Nock's Georgism or not, it presumably encompassed a notion of government as "the guarantor of an equal playing field which would legitimize outcome inequalities." Now, Nock was endearingly pessimistic about the capacity of human society to transform the State (the very purpose of which is to steal from the poor to give to the rich) into "government." But if one wants to damn the State and its works using language that doesn't sound too heretical, Nock presents a template that fits the bill while remaining true and radical. And I'd suggest Greenwald could be charitably interpreted along the same lines.
IOZ: "The law does nothing of the sort. The law doesn't legitimize outcome inequalities; the law preserves inequality. The law doesn't guarantee equal opportunity; the law determines starting position."
http://www.cbsnews.com/2300-500142_162-3289400.html
Come on. The law SOMETIMES does SOMETHING of the sort.
Greenwald is asking government to live up to its own propaganda; it's not like this is an unheard of (or unproven) method.
"IF ONE IS TO GUARD and take precautions against thieves who rifle trunks, ransack bags, and break open boxes, then he must bind with cords and ropes and make fast with locks and hasps. This the ordinary world calls wisdom. But if a great thief comes along, he will shoulder the boxes, hoist up the trunks, sling the bags over his back, and dash off, only worrying that the cords and ropes, the locks and hasps are not fastened tightly enough. In that case, the man who earlier was called wise was in fact only piling up goods for the benefit of a great thief.
"Let me try explaining what I mean. What the ordinary world calls a wise man is in fact someone who piles things up for the benefit of a great thief, is he not? And what it calls a sage is in fact someone who stands guard for the benefit of a great thief, is he not? How do I know this is so? In times past there was the state of Ch'i, its neighboring towns within sight of each other, the cries of their dogs and chickens within hearing of each other. The area where its nets and seines were spread, where its plows and spades dug the earth, measured over two thousand li square, filling all the space within its four borders.And in the way its ancestral temples and its altars of the soil and grain were set up, its towns and villages and hamlets were governed, was there anything that did not accord with the laws of the sages?
"Yet one morning Viscount T'ien Ch'eng murdered the ruler of Ch'i and stole his state. And was it only the state he stole? Along with it he also stole the laws which the wisdom of the sages had devised.
"Thus, although Viscount T'ien Ch'eng gained the name of thief and bandit, he was able to rest as peacefully as a Yao or a Shun. The smaller states did not dare condemn him, the larger states did not dare to attack, and for twelve generations his family held possession of the state of Ch'i.
"Is this not a case in which a man, stealing the state of Ch'i, along with it stole the laws of the sages' wisdom and used them to guard the person of a thief and a bandit?"
- Zhuangzi
joonsae: You can interpret what you've written many ways, but it called to mind what I've often thought about the Bill of Rights. All the reverence libertarian-leaning people have for the Constitution is largely reverence for the Bill of Rights. Where would we be without the glorious First Amendment, or the glorious Second Amendment? But the Bill of Rights, which in principle is so fine and elevated, is really window dressing for the Constitution itself, which was one giant leap backwards for mankind from the Articles of Confederation.
John: The point of the quote, basically, is that the purpose of law is to protect the property of the wealthy; and that the very laws and institution which prevent small thieves from getting away with their crimes are instrumental in allowing large thieves from performing their heists.
Therefore at the end of the day reverence for the law is reverence for power, and people like Greenwald delude themselves if they think otherwise. Even if Greenwald is right to denounce the endemic corruption and destruction of the system, on a deeper level he's still drinking the koolaid.
This post is gay.
^
...and all the better for it
it's FABULOUS post darling - simply fabulous.
let's ungay it a little .. .i was reading along here .. .before the last three few comments in truth .. and a young gay man's voice passed by the door of my walk up flat ..saying ..thanks for my nutellaon ... ,
oh .. i forgot to press follow up so that i could continue reading about equality with out having to put my right hand up over the hop'ing sauce bottle ,it hurts my eyes and mind..,.. while i push buttons ,as i read .. with my ..i'm left handed ..very ..ways .. .
@Justin: Picador, the law is what creates the social context for people to exist as poor, rich, and for the former to fuck over the latter in the first place.
Bullshit. A warlord doesn't need the excuse of Law to steal from the weak. Unless you're going to pull a Jack Crow and define "law" as "any hierarchical social relation" or some other semantic inanity.
Law is what a warlord (i.e. the state) puts in place to mediate disputes among his henchmen and subjects. It is not the means by which the warlord establishes his dominion. All he needs to do that is a power vacuum (i.e. the anarchist/libertarian paradise).
@Paul: Greenwald is asking government to live up to its own propaganda; it's not like this is an unheard of (or unproven) method.
Exactly. It's not exactly a brilliant approach, but Greenwald is meticulous and diligent about it, and he manages to make a compelling case around a weak principle.
Pish tush. Just because the law doesn't do everything of the sort doesn't mean it does "nothing of the sort." If you look harder there's a gray between that black and white.
...on a deeper level he's still drinking the koolaid.
Yep.
But as some sage upthread pointed out, it's just his job.
Like those good Germans in Treblinka, Dachau, etc... manning the "showers" and removing the gold teeth.
Just a job.
Law is what a warlord (i.e. the state) puts in place to mediate disputes among his henchmen and subjects. It is not the means by which the warlord establishes his dominion. All he needs to do that is a power vacuum (i.e. the anarchist/libertarian paradise).
WTF?
If that's sarcasm, it's the driest form I've witnessed in years.
Call me a warlord (i.e. the state), but, rainy day, I'm'a plug in the Eureka & clean up this here Freedonia. Sometimes stuff clogs the bag - got a jar for change, but laws just get tossed. Whoosh!
"But until the anarchists manage to SMASH THE STATE!(tm)"
Renowned Internet Anarchists now tell me that the goal is no longer to SMASH THE STATE!, but to BUILD CUTE LITTLE CO-OPS WHERE WE EAT ORGANIC FOOD AND PRETEND TO IGNORE THE STATE!
Or BUILD CUTE LITTLE COMMENT THREADS WHERE WE COMPARE GREENWALD TO NAZIS AT DACHAU.
Fight the power:)
"Law is what a warlord (i.e. the state) puts in place to mediate disputes among his henchmen and subjects. It is not the means by which the warlord establishes his dominion."
I didn't say that it was the means by which a warlord establishes his dominion, but actually, it is. The codification of a warlords rules into law is the way in which the warlord makes operations predictable and legible at scale so he doesn't have to be at every location mediating every infraction personally.
Paul:
You just ain't pure enough for Karl.
I must say I'm surprised he even has time to comment on every anarchist blog given that he MUST be on the run from the Agents of Mammon due to his ongoing revolutionary activities to SMASH THE STATE, MAN.
The Founders were insidiously subtle warlords, diffusing power, conferring individual rights, and putting off short-term gratification in favor of a long-term investment strategy. Hopefully with international law, the People will be the warlord. Things will be better then.
The Founders were insidiously subtle warlords, diffusing power, conferring individual rights, and putting off short-term gratification in favor of a long-term investment strategy.
Codifying slavery into a legal institution, dispossessing and killing native a population, codifiying women's role as breeders, trying to exclude non land holders or those without elite educations from political process. Yeah, nothing warlordy about that.
Now that's sufficiently purist.
@12:15 PM
Is that aimed at me? The founding fathers also qualify as war lords in that they led the war fighting effort of throwing off a previous government. I am really not sure how much more war lordy they could literally be. Nothing purist about it, if war lord is going to have any kind of meaning I would assume it would mean the leader of a non-state military force in time of conflict.
Yes, that rarefied air between Total, or "True" Warlordry, and Non-Warlordry. In our case, maybe "Benevolent", "Sloppy",
"Trickle-Down", or even "Low Self-Esteem" warlordry? One might be tempted simply to call it "American History". (Also could be that "warlord" is an overheated tag here, referring properly to a much different order of power/wealth consolidation.)
Meanwhile, if you truly believe that more Americans are oppressed and exploited per capita than fifty years or two hundred years ago, or more than a small fraction of Americans period compared with subjects of any empire or nation-state since the dawn of recorded history, I wish you relief from your rather luxurious fears. Maybe it's a glass-half-full or glass-half-empty thing....
The "Law" and "Justice" reminds me of my radial arm saw. I bought the lovely, but antiquated thing at a garage sale for $30. Makes rip cutting a breeze!
I later found out that there was a massive recall for the model number based on a design flaw. Apparently, it had the tendancy to grab wood pulling the handler's appendanges into the blade. It was an even better meat cutter!
While we may see outcomes similar to efficiently cutting wood, the law is infinitely better suited to ripping flesh.
Right Inky. You are on a board full of anarchists, some of us could give a shit to what degree the USG is the lesser of the evil within the sum evils of all nation states ever.
Meanwhile, if you truly believe you should be allowed to have sex with small furry animals, good luck with that.
Anyway, the point stands. The founders of the United States were straightforwardly war lords, and the first thing they did after winning their war was to codify a new legal arrangement that contained slavery and rights that broke upon reproductive role into law. That is exactly what the original objection said does not happen, that the creation of the law is not how war lords perpetuate and institutionalize their directives.
Christ, its even right there in the post of this title.
And on second thought, this thread's almost dead anyway and the fact that you would gin up something like a universally comparable 'suffering per capita index' and treat it as though it was a meaningful statistical lens through which to view this subject already betrays the perspective and world view you have accepted as your own.
Brian M: Snort.
fight the power you guys! :)
I don't think "straightforwardly" means what you think it means. For warlords, the Founders sure had them some liberal soft spots.
If there's no cognizable misery quotient, I'm not clear on what basis you direct complaints and assess blame. If it's all a wash, hit up China next, willya?
Explain to me again how your made up misery per capita index is germaine to the question of whether the founding fathers as leaders of a geurrilla war who, upon victory, codified their class interests into law qualify as war lords or not.
Or at least offer up some definition of war lord other than offering some vague statement about it having a charged meaning here.
Justin:
Our ancestors will one day be ashamed of our failure to accord equal rights to dolphins. Does this mean that no moral distinctions can be made between the ideologies of various dolphin-rights-denying savages in our benighted age?
The warlords -- i.e., the dominant alpha males who subjugate their fellows through violence -- will always be with us, as they are with our chimpanzee relatives. This is how primates operate. (I'll believe otherwise when I see it -- history as yet provides no counterexamples.) Some systems diminish this subjugation at the micro level by instead recreating it at the macro level: i.e., neighbourhood bullies are prosecuted for assault by the hand of that uber-bully, the state.
Accordingly, I'm with Greenwald in believing that there's some value in supporting a system whereby no actual human person is entitled to the privileges of the warlord, but rather, the predations of the state -- unjust though they may be -- are carried out by a transparent bureaucratic process, shaped by democratic input, in which each participant is liable for deviation from the dictated process.
What I've described as an ideal sounds like a nightmare: an insane, inhuman machine that feeds on human flesh. But it's better than what we live in now, which is that, PLUS unaccountable bullies with badges and expense accounts raping and pillaging with impunity. And who have every incentive to increase the rate at which the machine eats, since they will never be fed into the hopper.
If you think the human race can do better than subjecting the bullies to the same (insane) processes as the rest of us, you're more optimistic than I am. As I said, history provides no precedent for what you insist is possible. Personally, I'd be happy to just see the powerful dragged down into the hell that the rest of us live in. I also think that this is a necessary first step if the long-term goal is to generate consensus that the machine needs to eat more slowly, and with greater discernment.
An addendum: please bear in mind that rates of violent death in the last century, despite two world wars, various genocides etc, are substantially lower than those experienced under more local forms of government (e.g. the Bronze Age through the 18th century), while those rates are themselves substantially lower than the rates of violent death among hunter-gatherers. I can't help but feel that much anarchist theory about the brutality of the state is meticulous about not confronting these statistics. If you're going to argue that local bullies are better than state bullies, you will probably need to confront this fact head-on.
" more slowly " .. .more .. .
If you think the human race can do better than subjecting the bullies to the same (insane) processes as the rest of us, you're more optimistic than I am.
I am not sure that this is what I said, or how this was implied by what I said. My statement or disagreement was about what role the law plays and how it comes about, and how it creates a social context in which bullies amass great fortunes. There have been societies absent these universal systems, they probably still had bullies, but they did not have any mechanism or apparatus in place to be anything more or less than a pain in the ass.
As I said, history provides no precedent for what you insist is possible.
Just what is it that you think I am insisting is possible?
Personally, I'd be happy to just see the powerful dragged down into the hell that the rest of us live in.
I asked the same question twice above genuinely, not sarcastically, hence the repitition. I am really not sure what you think I am insisting is possible.
In any case, whatever it is you think I think and what you just said are likely not mutually exclusive. They are probably the same. I think the law largely prevents what you say would happen from happening except on occasion.
My point as I understood it was that the law is the codification and depersonalization of the warlords rule. Legal systems are imposed from above and often conflict with existing social, legal or ethical customs. The reason the nation state persists in settling these conflicts in its favor is to make the local legal system legible and coherent with the administrative POV of the nation state. I gave an example of what I meant in the Americas. This is also found in the conflict of states rights vs federalism. Above you said this was bullshit.
One (in my view) credible way of understanding U.S. history is of a long struggle to undo the legal regime of the post Revolutionary War. This includes abolition, suffrage, civil rights, taxation, and so on, all the things you are saying are valuable victories. Here is the thing, this is not some either or deal. I agree with you on that point. I am saying that those victories happen within a larger legal context, and that context was an engineered and created system.
Brian's little Gucci bags of kitty poo sure do prove him the WINNER! (TM)
Always best to bring the conversation back around to Building the Purity StrawMan and throwing flaming Gucci bags of kitty poo at the strawman's straw feet hoping to see a big flame!
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