Before the Law

The limited formal and negative generality of law under liberalism not only makes possible capitalist calculability but also guarantees a minimum of liberty since formal liberty has two aspects and makes available at least legal chances to the weak. For this reason there develops a conflict between the law and the liberties based thereon on the one side, and the requirements of a monopolistic economy on the other side. Under monopolistic capitalism private property in the means of production as the characteristic institution of the entire bourgeois epoch is preserved but general law and contract disappear and are replaced by individual measures on the part of the sovereign.

– Franz Neumann, The Change in the Function of Law in Modern Society, 1937

Large Capitalist firms — banks as well as monopoly concerns — long ago ceased to depend on court proceedings to conduct their affairs with members of other social groups.

– Otto Kircheimer, State Structure and Law in the Third Reich, 1935 pamphlet

What is legalism? It is the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules.

– Judith Shklar, Legalism

Do not the bourgeois assert that the present-day distribution is ‘fair’? And is it not, in fact, the only ‘fair’ distribution on the basis of the present-day mode of production? Are economic relations regulated by legal conceptions or do not, on the contrary, legal relations arise from economic ones?

– Karl Marx, Critique of the Gotha Program

Watching the Kavanaugh circus the last few weeks I kept thinking about the way in which the general public now views law and justice. I suspect most Americans think of law and legality in terms they have learned from Hollywood TV. Perhaps there is no other area in which the general public relies so extensively on assumptions and cliche as the judicial system. But it also raises questions about the law that I suspect even relatively well-educated people never ask themselves.

The entire narrative that is manufactured each time a justice is nominated to the Supreme Court is among the more overblown and hysterical versions of political theatre we are granted but also the most opaque. For the vast majority of people have no real legal knowledge, nor do they understand the intricacies of the entire appellate courts system. Like most things that pass for politics in America, the nomination is treated as a form of American Idol or a beauty pageant.

But there is another issue attached to the spectacle that accompanies Supreme Court nominations and that has to do with a more philosophical set of questions about both class, and about psychology. And the most obvious and most forgotten (and intentionally obscured) truth about the rule of law is that it is not impartial or in any way democratic.

Mass incarceration shows no sign of slowing down despite the very tireless and relentless work of prison critics and death penalty activists. ICE continues to round up people and separate children from their parents. All legal of course. Children are sentenced as adults. Men are given life terms for drug offenses. The criminalization of life continues to expand. Criminal codes increase. And that increase and expansion mirrors the German criminal law system under National Socialism.

The first period after the downfall of the Weimar Republic was marked by the rise of authoritarian ideology. An authoritarian criminal theory mingled with elements of the old classical school, dominated the academic field. In the criminal courts the transition was immediately reflected by the imposition of harsher punishments, and by a weakening of the status of the defendant.

– Otto Kircheimer, Criminal Law in National Socialist Germany

The second shift Kircheimer notes was a shift from the objective facts of the case to the subjective. It was the Nietzschian theory being appropriated. The subjective took the form of a focus on intent, and served thereby to obscure the distinction between act and intention. Id argue one sees a version of this logic today in the valorizing of remorse. It has become a singularly elevated component in evaluating the appropriate punishment, and more, in how to *feel* about the criminal. The unrepentant are the lowest rung on the ladder of guilt. Remorse and confession eclipse the actual commissioned criminal act. In the Germany of the thirties the law allowed for vagueness in the service of expansion. And in a sense today, victim’s rights and a new subjectivity of remorse and confession are in the service of widening the definition of crime itself. And all correctives (#metoo for example) are quickly absorbed within a trend that strips away presumptions of innocence and the rights of the accused. For denying accusations sounds perilously close to unapologetic and lacking in the qualities of penitence.

Another instance of professional attitudes may be seen in the way in which such a citadel of conservative lawyerdom as the American Bar Association addresses itself to social issues. Matters are taken up one by one, in isolation from the social context and without discussion of the basic issue. Precisely because the A.B.A. regards itself as the official spokesman of the bar it must present its views in a formal manner that gives the appearance of being supra-political and almost without concrete content. It is the independence of the judiciary, the separation of powers, the preservation of fundamental rights, or just fairness, the policy of justice-never the specific social interests or purposes of policies-that is discussed.

– Judith Shklar, Legalism 

Shklar wrote Legalism in 1964. She presciently articulated the front edges of that neo Nietzschian fascist sensibility at work in the intentional vagueness that allowed for its use in traversing any theoretical problems with mass warehousing of the poor, cruel and unusual punishments, torture, and executions.

The men who reach candidacy for appointments to positions of authority in the legal apparatus are, these days certainly, uniformly guided by a belief in retaining the status quo, and a devotion to the societal direction of control and oppressive social forms. There are no radicals available even if a President, in a fit of madness, wanted to appoint one.

On balance and over the span of American history, the court has in fact done far more to retard progress than to advance it. Most horribly, the court upheld in its decision in Dred Scott the sanctity of slavers’ property interest in other humans. The court likewise approved in its Korematsu decision the World War II–era imprisonment of Japanese Americans based on nothing more than fear and paranoia. The court recently claimed to overturn Korematsu, but in the context of the Trump v. Hawaii decision in which the court upheld the constitutionality of Trump’s Muslim travel ban. In the Citizens United case, meanwhile, the court turned back legislative efforts to rein in the corruption of our politics that follows inevitably from our First Amendment–sponsored orgy of special interest contributions.

– Christopher Jon Sprigman

In fact, through most of its history the Supreme Court has engaged in the wildest conservative judicial activism in defense of privileged groups. ( ) Right-wing judicial activism reached a frenzy point in George W. Bush v. Al Gore. In a 5-to-4 decision, the conservatives overruled the Florida Supreme Court’s order for a recount in the 2000 presidential election. The justices argued with breathtaking contrivance that since different Florida counties might use different modes of tabulating ballots, a hand recount would violate the equal protection clause of the Fourteenth Amendment. By preventing a recount, the Supreme Court gave the presidency to Bush.

In recent years these same conservative justices have held that the Fourteenth Amendment’s equal protection clause could not be used to stop violence against women, or provide a more equitable mode of property taxes, or a more equitable distribution of funds between rich and poor school districts.

– Michael Parenti

Michael Mandel pointed out that “When dealing in their writings with legality, Marx and Engels sought to discredit completely any notion of an autonomous or egalitarian legal realm capable of transcending or resolving the discord, unfulfillment and subjugation of everyday life or (most importantly) of restraining the oppressive social power of class society.” And it was Marx who formulated the concept of base/superstructure. For the total reality (base) of life is found in the total of its relations of production — on top of which a superstructure of political and legal institutions is built.

Here again, however, one sees the overall dumbing down of the American public. And I’m honestly not sure how much of a journey that was. The TV staple ‘lawyer show’ is almost always prosecutorial, and rarely about defense lawyers. There was one, The Divide, but it was cancelled after one season due to low ratings. This is the culture (and here I’m speaking of the white bourgeoisie) that thrives on and embraces racist rhetoric like ‘super predator’ and who fail to see the dogged xenophobia and racism of all lawyer shows. In fact the single most predominant theme or plot is that of white saviour; the idealistic DA (sic) working to help the “good” black or hispanic kid from the clutches of gangs and drug dealers (the vast majority of the residents of the *ghetto*). White paternalism has always been a hallmark of Hollywood drama. But I digress.

These are difficulties which the man from the country has not expected to meet, the Law, he thinks, should be accessible to every man and at all times, but when he looks more closely at the doorkeeper in his furred robe, with his huge pointed nose and long, thin, Tartar beard, he decides that he had better wait until he gets permission to enter. The doorkeeper gives him a stool and lets him sit down at the side of the door. There he sits waiting for days and years.

– Kafka, “Before the Law,” from The Trial

What is important to recognize is the hegemonic nature of the legal system, and of laws. There is a consensus which grows out of an atmosphere, or backdrop that is society wide, and which is manufactured and presented by media and entertainment over and over again. And today these assumptions and consensus travel across various economic trans-national blocs. The paradox, if that is what it, of a growing nationalist frenzy in Europe and the U.S. serves to mask the greater cooperation of these global economic blocs. And such blocs are also rather fluid, though not completely. And while cynical regarding Nationalistic interests, they also often fall prey themselves to such jingoism. This is the global reality and it shadows domestic institutions, and that most certainly includes the courts. For these economic blocs are immune to judicial or legal interference or sanction.

“The idea that the law plays a central role in the American imagination and political imagination is well- trodden ground; noticed early on by Tocqueville and today provocatively framed by some as a form of religious observance for the foundational document that is the U.S. Constitution, the idea of law looms large in the American liberal imagination. One is hard pressed to find an account of liberalism — be it by its proponents or by its critics — that does not feature the rule of law as one of its main tenets, if not as its central normative feature.”

– Tiphaine Dickson, Shklar’s Legalism and the Liberal Paradox

The courts are reflective, on several levels, of life in the U.S. It is racist firstly. Profoundly so. In death penalty cases, 97% of DA’s were white. And not just that…

[A]n investigation of all murder cases prosecuted . . . from 1973 to 1990 revealed that in cases involving the murder of a white person, prosecutors often met with the victim’s family and discussed whether to seek the death penalty. In a case involving the murder of the daughter of a prominent white contractor, the prosecutor contacted the contractor and asked him if he wanted to seek the death penalty. When the contractor replied in the affirmative, the prosecutor said that was all he needed to know. He obtained the death penalty at trial. He was rewarded with a contribution of $5,000 from the contractor when he successfully ran for judge in the next election. The contribution was the largest received by the District Attorney. There were other cases in which the District Attorney issued press releases announcing that he was seeking the death penalty after meeting with the family of a white victim. But prosecutors failed to meet with African-Americans whose family members had been murdered to determine what sentence they wanted. Most were not even notified that the case had been resolved. As a result of these practices, although African-Americans were the victims of 65% of the homicides in the Chattahoochee Judicial District, 85% of the capital cases were white victim cases.

– Steven Bright, Santa Clara Law Review, “Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty,” 1995

One could continue citing statistics for a few hundred pages. The courts express American intolerance and inequality as if under a magnifying glass. And remember that that religious adulation reserved for the *Founding Fathers* (sic) usually conveniently omits that most of them owned slaves. Judith Shklar wrote of the Supreme Court…“…this is an institution obviously irreconcilable with democracy, but results from the conjunction of the three following facts: legal traditions inherited from the colonial and Revolutionary period, distrust of any government, and a democracy which had little confidence in itself.”

The courts are factories to process surplus humanity, in the eyes of the ruling class anyway.

“The laws of history were dictated by the proprietorial class organized in the state. “

– Gramsci, The Conquest of the State

So, returning to the Brett Kavanaugh circus. (side bar note: Brett boy is a Catholic, which may account for his deficiencies as a public weeper. Evangelicals are far superior at crying. See: Swaggert, Jimmy. Weber, Rep. Randy. Baker, Jim.) The fact is that Obama’s last nominee Merrick Garland was almost a cookie cutter cutout ideologically from Kavanaugh, and John Roberts seems of no interest to most liberals. And it again a part of this ‘American Idolization’ of the political that no major media outlet ever addresses the fact that even Ginsburg, the erstwhile liberal on the court, is eons removed from William O.Douglas or Brennan. In fact…per the N.Y. Times (circa 1997 it should be noted):

A recent survey by the libertarian Institute for Justice examined Supreme Court opinions between 1993 and 1996. The survey lamented the fact that the Justices least likely to strike down laws infringing civil and economic liberties were President Clinton’s appointees, Justices Ginsburg and Stephen Breyer, who voted to uphold Government power in two-thirds of the cases examined.

Ginsburg is also tight with Antonin Scalia. Go figure, huh.

So it is hard to muster much outrage over another uptight white guy becoming a supreme court justice. The higher courts are the expression of an illusory coherence and imaginary neutrality that it is alleged, stands above the merely political. But in fact it is at its core political. The courts adaptation of a rarified positivist grammar, one that carries with it a kind of scientific precision (and it is precise, if one allows it to frame itself. Precise and even beautiful) are in fact neither neutral nor precise. But this distance, this hermetic emotionless rationality is really in the service of removing social trauma and human suffering from the rulings, and to hide the class mediated selectivity at work.

In the arena of international law, the first problem has to do with tribunals created by members of the U.N. security council. For such tribunals (The ICTY, at the Hague and the ICTR at Arusha, et al) are trying individuals whose countries of origin are not members of the security council and hence cannot create ad hoc tribunals. Nor can these individuals refuse to participate. Milosevic, who was kidnapped by the U.S. and taken to the Hague, opened his defense by declaring the tribunal illegitimate. Of course the trial went ahead and he died in custody. A decade later he was acquitted.

It is interesting to note that nobody involved in the killing of Osama bin Ladin was ever thought to be put on trial. Nor whatever drone pilot hit the sixteen-year old American Abdulrahman al-Awlaki. The father did bring a suit but it was dismissed out of hand. Or is it possible for the nation of Honduras to form an ad hoc tribunal to consider the role of the U.S. in the recent coup that unleashed massive violence. Could Venezuela form an ad hoc tribunal? No.

Tiphaine Dickson, in her remarkably comprehensive examination of the evolution of international criminal law, notes, the ascendency of human rights as a foreign policy principle took place as an arm of neoliberalism, and came out of a variety of factors that included corporatism, Vietnam and American shame, and in theory the failure of political utopias — this last was really the argument of Samuel Moyn. And failure is certainly a relative term.

By all accounts, human rights organizations made the conscious choice to scuttle socio-economic rights in order to streamline and mainstream their message; in today’s cynical marketing parlance, we would speak of clarifying their brand. This certainly contradicts the idea that these movements stood like deer in the headlights before an unexpected neoliberal ten-ton truck: they had already known it best to dash away to the safe-haven of the atrocity and the war crime.

– Tiphaine Dickson, On the Poverty, Rise, and Demise of International Criminal Law

Moyn described the *spectacular atrocity as the organizational fulcrum* of international moral conscience. Now there was also a decided colonial flavor to this marketing parlance. And to its choices. The *dark continent* was the perfect backdrop for the association of primitive bestial violence. A violence that far exceeded what was possible in the advanced West. It is that super predator theme again. And it is again white paternalism. There was another factor in the rise of this specific human rights consciousness and that was what is termed “Holocaust Memory”. The Holocaust industry. So neoliberalism, inequality, and the Holocaust memory idea roughly came to prominence at the same time. And it is interesting, perhaps, to observe the rise of ‘victim’s rights’ in domestic criminal law and practice, a short while later. The role of American guilt, then, is tied into this, or at least the shaping of and control of how guilt is viewed and experienced.

After its defeat in Vietnam, and Richard Nixon’s normalization of relations with China, the United States engaged in a major ideological shift. In the early 1970s, the United States used the Conference on Security and Cooperation in Europe to redefine its enemy. Under the cover of détente with Moscow, this East-West conference agreed on measures supposedly designed to promote lasting peace. The Helsinki Final Act, signed in 1975, endorsed the inviolability of frontiers, territorial integrity of states, and non-intervention in internal affairs of other states (measures designed to reassure Moscow, still fearful of German revanchism). However, that last principle was subtly challenged by Washington’s new cherished “value”: respect for human rights. While seemingly affirming the status quo, this initiated a new phase of indirect U.S. interference in the internal affairs of other nations, no longer in the name of anti-communism, but rather as defense of human rights. In 1978, the Helsinki Watch group was founded to monitor human rights in Soviet bloc countries. Ten years later, Helsinki Watch evolved into Human Rights Watch, whose watchfulness continues to focus on countries where the United States is likely to favor regime change.

– Diana Johnstone, Monthly Review 2017

I am writing an almost shorthand simplified overview here of what is a complex history. But there is enough material, I think, to arrive at a few conclusions. The US court system is not going to ever do other than it always has. It is going to protect those who own the wealth and property of the country, and the Supreme Court is the final voice of the Imperialist ruling elite and its role is to tidy up matters in a way that protects the status quo.

Michael Mandel (in How America Gets Away with Murder) summarizes international criminal courts thus…

So here is the problem with international criminal law: it lets the Americans get away, not only with murder, but with the supreme international crime, and it punishes only the individual evils of the Americans’ enemies – even though these are but the inevitable result of this supreme crime that ‘contains within itself the accumulated evil of the whole.’ It does this so regularly that it cannot be regarded as some minor kink that has to be worked out of the system. Despite international criminal law’s banner commitment to ‘ending impunity,’ its operating principle is really one of ‘selective impunity.

The supreme international crime is, of course, a reference to Robert Jackson’s opening speech at Nuremberg, where he described aggressive war, not in self defense, as the supreme international crime. Which, by my reckoning, means the U.S. is guilty of that crime about 7 or 8 times in just the last twenty years.

This is an era of massive organized disinformation, historical revisionism, and outright propaganda. Massive. One of the problems associated with pointing this out is that one is liable to be called a conspiracy theorist. Its the definitive fear inducing appellation. And even when obvious campaigns of disinformation are being implemented, there is a reluctance on the part of many to point it out. Hollywood, let alone the media news giants and telecoms, are directly tied to the US government, to the Pentagon, CIA, and state department. In Hollywood today CIA advisors sit in on story meetings for any show or film that even indirectly touches on the subject of the military or government or law enforcement. The result has been twenty five years of direct propaganda. Most americans learn of the court system from TV. Dick Wolf, as an example, as several hugely successful franchises that have legal and courtroom, or law enforcement backdrops and locations. In fact his latest show is titled FBI. But there are a dozen other show runners and show creators who peddle the same kitsch versions of a cartoon legal world. Most americans learn most everything from mass corporate entertainment and news. The normalizing of outright executions and coups is experienced as nothing out of the ordinary, and far away anyway. The public is told when to be outraged and when not to be. And they are instructed that class doesn’t exist and that military service is the most noble form or patriotism. And never ever is American exceptionalism to be questioned.

In the legal system there are only ‘individual’ stories, de-linked from social reality and from history. Liberal pieties about the ‘rule of law’ and the reactionaries devotion to morality (others, not their own) again speaks to parallels with National Socialism in the thirties. Kircheimer ends his essay on law under the Third Reich this way…

In effect it is difficult to see how the goal of improving public morality could be obtained by a state that not only operates at such a low level satisfaction of needs, but rests on a supervision and direction of all spheres of life by an oppressive political organization.

So, I’d say the Supreme Court is actually pretty much as its always been. Founded by slavers and the rich colonial proprietorial class, it has served the interests of the wealthy, of business and privilege, and has done it without interruption since its inception. There is the additional psychological conditioning today that encourages agreement, encourages consensus and a valorizing of the familiar. Words such as *revolutionary* or *dissent* are considered bad, lumped into an amorphous category labled *fake news*. *Radical* is a bad word, too. And the business of the courts, all courts, really, is too conform to and reinforce the values of a class system and a privileged wealthy elite.