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Augustine stated that an unjust law is no law at all (Lex iniusta non est lex), which Martin Luther King Jr. repeated in his Letter from a Birmingham Jail. The obvious implication is that a law must be just for it to stand qualaw. Another implication is that one is not bound to enforce or obey an unjust law, for to do so would mean participating in an injustice. Naturally, unjust laws are accompanied by institutions charged with enforcing them, making disobedience precarious. If we shift here to those who make the laws, three observations can be made. First, it is usually the case that legislators do not believe that the laws they make are unjust. They typically offer “good” reasons for a law and these reasons may go unquestioned by most of the populace, especially those who may benefit from the law. Second, it is rare that persons who possess the power to make and enforce laws do so at the expense of themselves, which leads to a question regarding the making of any law, cui bono, “who benefits.” Third, an unjust law either enacts or simply codifies existing unjust practices. Laws enacted regarding slavery, for instance, reinforced the already existing injustices associated with trafficking and exploiting human beings.
An unjust law by its nature cannot result in just effects; it cannot be accidently just, regardless of how it is rationalized and justified. While a tautology, a law is unjust because what it enacts and enables are forms of injustice. Someone might point out that some laws are unjust, yet their effects appear to be “just” for those who benefit from them. Is the unjust law accidently just? Those who benefit from unjust laws obtain their benefits at the expense of others, which means the unjust law remains unjust in its effects. To return to laws associated with slavery, there was never any justice that resulted from these laws, even though white people benefited from these laws. Slave laws codified and enacted horrific forms of oppression and marginalization for the sake of profit (and a sense of white superiority). No amount of rationalization can alter this reality and anyone who accepted or actively supported these kinds of laws acted unjustly. Of course, there are also laws that are just, but unjust in their application. For instance, there are just laws that prohibit citizens from physically harming other human beings. Yet, in some circumstances the application of these laws is unjust. Harsher sentences for persons of color versus white persons who commit the same crime is an example.
Let me add a further thought. Laws that are considered to be just by most people may later be deemed unjust. Consider, for example, laws that stated men of property have the right to vote. These laws, constructed by white men of property, benefited the lawmakers and other white men of the propertied class, yet were generally accepted. Only in time did people raise their voices arguing that these laws were unjust because they excluded women and people of color. It took over 7 decades after Seneca Falls (1848) for women to obtain the right to vote (1920). Can anyone imagine going back to the disenfranchisement of women not voting and arguing that it is just?
This raises a question: can a law be accepted as just in one era and be considered fundamentally unjust at a later time? Are there, in other words, laws that are simply unjust at their core? Or is it possible for a law to be just at the time and later experienced as unjust because of changes in historical circumstances? There is no easy answer to this question, but I would suggest a general rule: laws that privilege one group’s survival and flourishing, while depriving another group can never be deemed to be just. A law that is deemed to be just at the time it is enacted, but then later found to be unjust, means that it was unjust at the start. At the dawn of the U.S., laws privileging white men of property, despite being considered just at the time, were fundamentally unjust because they impeded women, unpropertied white men, people of color, and slaves from flourishing. It took time for enough people to experience and lament the injustices before these laws were changed or eradicated.
The worse kind of unjust laws are those that are hidden from view, ensconced in language of Nature, God, or simply the way it is and always has been. The meta-message in these language games is that the law is just and unquestionable. There is no alternative. We have no choice, but to accept and submit to the law and accept our lot in life. At the same time, occult unjust laws may have been enforced for so long that they have become part of the ethos and common practice of the people; this feels as if it is natural despite obvious injustices. An occult unjust law operates such that those who suffer the effects of the law do not or are unable to question it or accurately attribute the real source of their suffering. In fact, they may find some other source to blame for their suffering.
Despite some awareness among people of the injustices rising from capitalism, I would argue that some of the foundational laws of capitalism are unjust. While the effects of these laws can be seen to result in various forms of injustice, the laws themselves are rarely questioned. It is as if most of us concede that Margaret Thatcher was right when she said there is no alternative to capitalism. Many people have acknowledged the shortcomings of capitalism and work to ameliorate its injustices, yet leave intact the very laws that created the injustice. For instance, Roosevelt’s New Deal and his use of Keynesian economic theory to establish regulations were meant to limit the negative effects of capitalism that socialists and communists had been lamenting since the 19thcentury. Despite the good these programs and laws led to, they never questioned the core tenants of capitalism and the laws that supported it. Indeed, Keynesian capitalism is still capitalism even though it tries to stem some of the excesses endemic to capitalism. Another example is advocating for a living wage. This has been going on since the 19thcentury and continues today. When people in Seattle, for instance, obtain enough votes to enact a hike in the minimum wage, most of us see this as a victory. On the one hand, it is a victory, because it forces producers and owners to provide sufficient wages for workers to live fairly well. On the other hand, this is a pyrrhic victory because laws that support capitalism remain unquestioned. One can raise criticisms about the effects of capitalism, but ignore the very laws that give it life.
The hidden aspect of the unjust laws vis-à-vis capitalism is furthered by the media, more often than not, unwittingly. Recently I listened to an interview with several economists who observed that the economy is doing well, although workers’ wages have remained flat when inflation is taken into account. One economist speculated that a tightening labor market will result in higher wages, because companies are competing for workers. Another wondered if the increasing use of technology (replacing workers with robots) accounts for stagnant growth despite worker productivity. The laws of the market, it is believed, determine whether wages increase (unless you are a CEO). So, workers, since the 1980s, have had to wait for a time when the labor market is very tight before corporate coffers will provide a bit more compensation. The interviewer and the economists are familiar with the rules of the game and not one of them argued that the rules are unjust. They seemed to accept the reality as a given—just the way the market operates.
To understand the occult injustice of laws undergirding capitalism, I take a brief detour to Ellen Meiksins Wood’s (2017) research on the origins of capitalism. Wood argues that capitalism began in the 16thcentury in England where ruling landowners, who already benefited from property laws, were able to enact laws and practices that enabled them to secure greater profits by enhancing competition and, later, increased agrarian efficiencies (resulting in displacement of large numbers of citizens). Laws associated with capitalism grew to other sectors of the economy, as well as to other countries, becoming an integral part of Western imperialism and its insatiable pursuit of markets (read—exploitation of foreign peoples and their lands). A simple reading of these laws is that owners of businesses and farms are legally entitled to the profits, because they own the property, machinery, etc. (today immaterial factors such as ideas are deemed to be property). Laborers are entitled to whatever wage the owner is willing to give. Since these wages are operating expenses that deplete profit, one would expect, as Marx indicated, there would be a tendency to keep wages (and benefits) as a low as possible. The laws that undergird capitalism sanction what David Harvey (2005) calls “accumulation by dispossession.” Consider Charles Dickens famous Christmas story. Scrooge may have been a detestable figure before his conversion, but he was completely legitimate in securing greater profits by keeping Bob Cratchit’s wages low. Indeed, in the story Bob Crachit is calmly resigned to obtaining low wages and a bare existence for himself and his family. Scrooge’s conversion meant that he was more generous with the profits he legally obtained. Dickens, in other words, may have written this story as a cautionary tale for greedy businessmen, but what remained unquestioned was the fundamental injustice of the laws that legitimated the exploitation of Bob Cratchit and his family. If conversion means change, then the real conversion would have been ridding the country of laws that justified profit at the expense of workers and their families. Willy Loman in Death of a Salesmanis an analogous figure who accepts the “game” even if it means struggling for decades to provide for himself and his family, while the owner of the business lived well. I think, though, that Arthur Miller, unlike Dickens, was leaning into the idea that capitalism and its laws are fundamentally unjust.
I say unjust because a company’s profits is made possible by the work of everyone in the company. Even if it is recognized that everyone contributes to the profits, the law bestows sole discretion of the disposition of the profits to those who own the company. Regular workers are to be content with their wages and have no say about how company profits are to be used or distributed. Of course, labor is valued differently in capitalism and while there are laws about minimum wage, there are no laws against how much a CEO can make. The maintenance worker’s labor, for example, is deemed of significantly less value than that of the CEO, because, as the story goes, the CEO has more responsibility and is thus due more of the share of the profits. Whether that is 340 or 400 times that of the lowest paid worker, is immaterial. It could be 10,000 times the lowest paid worker and the law would say this is legitimate. Laborers have no say not only with regard to their meager wages, but also the exorbitant salaries and benefits of corporate elites. Even with more equitable pay and benefits, the unjust nature of the laws supporting capitalism remain—laws that restrict profits and decision making about the use of those profits to the owners.
Naturally, someone might say that if workers had a living wage, then the laws associated with capitalism would not be unjust either in terms of its foundation or in its application. But I contend that these laws are by their nature unjust. This is most notable in that these laws not only inevitably lead to exploitation, they also objectify workers. Workers in the capitalist system obtain their conditional value by virtue of their participation in creating profits. Fail in this and a worker is easily discarded, while the company owners secure their profits. Willie Loman and Bob Crachit were mere cogs, easily replaced.
Another person might point out that differences in education, experience, skills, etc. impact a worker’s productivity. Shouldn’t they receive more remuneration than the lowly line worker or janitor? And if individuals were paid the same, what would be the incentive to work harder? One basic problem with this last question is that it presumes that persons’ creativity or productivity is motivated simply and solely by money. If that were true, we would not have any teachers. Second and more problematic is that even if there is smaller disparities in wages, workers are excluded from a decision-making process that impacts them directly and significantly. Workers have no voice or seat at the table because they do not own the company, which makes them more vulnerable to exploitation, as history has repeatedly shown. Any group whose voice is denied and who are excluded from sitting at the table will likely be marginalized and oppressed by those who have voices and seats. They remain, like Bob Crachit, forever dependent on the whims of the bosses. A critic may counter, saying they have a voice in that they could find another job or they could speak out or they could get more education. These responses are usually made by people of privilege who aren’t trapped in a job, fearing that the loss of the job will result in losing one’s apartment, car, etc. Moreover, these responses overlook the fact that the only option a worker may have is to work low wage jobs—jobs where she or he has no voice about the company’s use of profits. Worse, these neoliberal responses deflect attention from the exploitative nature of business.
Let me shift to unions and what remains of them. No can deny that despite corruption, unions were responsible for workers obtaining better wages and benefits, as well as protections. But unions by and large rarely questioned the rules of the game. They simply agitated for company boards to make decisions so that workers received fairer, living wages and benefits. While unions were never at the seat of the board room, they did represent a collective voice even as they contributed to the occult aspect of ownership laws. Even today, when we hear unions advocating for a living wage, one hears little from their leaders about the fact that the very laws that insure a perennial struggle for just wages are unjust themselves.
Any cursory glance at history during the last three centuries reveals not simply booms and busts in the economy, but a consistent thread of workers struggling to obtain a living wage and some protections from the vagaries of the capitalist system and its laws. Conversations about living wages were occurring in the 19thcentury. Even if we establish laws regarding a living wage—adjusted for inflation—I am confident that the capitalist class will work diligently to secure greater profits at the expense of workers, because the occult unjust laws of capitalism will remain alive and well. As long as workers are not “owners,” as long as they have no voice and no seat at the table when decisions are made about how profits are used and shared, one can confidently predict they will be exploited. I suspect, or more accurately hope, that in time more people, perhaps even a majority, will become increasingly aware that laws—no longer occult— that place profits in the hands of the owners are fundamentally unjust. And these very same people will overturn them.
Harvey, D. (2005). A brief history of neoliberalism. Oxford, United Kingdom: Oxford University Press.
Woods, E. (2017). The origins of capitalism. New York: Verso.