On law and politics

[beautifulduckweed]

I took Critical Legal Theory this semester, and it was easily the most inspirational class I took in law school. During the course of the class, we read "Law and Politics", a law review article by David Kairys published in the George Washington Law Review in 1984. Every time I feel cranky and awful and useless, every time I struggle to remember why the hell I'm taking on so much debt just for the chance to see how mediocre I can be as a law student, I read these passages, and I remember why I want to go into the law, after all.

[The] public-private split embodies a view of the world that is embedded in the law and in society. This dichotomy is a major component of the contemporary phenomenon of hegemony. The public-private distinction lies at the core of people's acceptance of the status quo, even though it seems so easy to choose other, more humane options that could make this country a better place.

The public-private distinction divides life into two spheres. There is the public person, the citizen, who has the right to speak and to vote. In this public sphere, society recognizes total equality, complete democracy, and absolute freedom. These ideals are not always realized, but any court in the United States would espouse them. The private sphere includes nearly all economic activities, the environment, and the decisions that most affect people. Here there is no equality, and we glorify that fact. Private inequality is the American way; one can get as rich as one can get while others sink into hopeless poverty. Inequality in the private sphere is not scorned, rather it is praised and glorified as a positive aspect. There is no democracy; only the owners of property, variously defined, control what happens in the private sphere. There is a limited kind of freedom in the sense that we all have the freedom to buy and sell.

This particular ideal or way of thinking about the world was created and constructed by people. The public-private distinction developed historically. This division of people's lives is not inevitable or natural. It is not so divided everywhere else, and in many places, even in this country at earlier times, this division would be considered a crazy way to structure society. Now, however, it is depicted and accepted as if it were inevitable and natural. When workers or cities challenge a plant closing, the judge may say: "You are talking about interfering with the basic, fundamental, organizing principles of our society." I have to say, yes, I guess I am, but why not talk about it? The response is that we cannot discuss these principles in a meaningful way because they are not on the agenda. The plant closing is a legal issue; our fundamental principles are at stake, and the courts do justice. This is one of the major ways that the law perpetuates and legitimizes an ideological basis of thinking, a system of beliefs, that tends to make the existing social order seem natural, inevitable, normal and neutral.

The law is a human system. It may move slowly, but it IS responsive to human change, and I want to be one of the humans making those changes. (Among other things, I've been thinking a lot about jurisdictional issues, species conservation and global warming, and how the law is flailing for a means to address a harm as pervasive and all-encompassing as climate change.)

That's all. And now: back to finals.

Comments

[bonobo23.livejournal.com]

I love seeing good people get passionate about the law. Great quotation. Thanks for sharing it.

[freyley.livejournal.com]

Oh man, I should take that class (or, well, read those readings =)

Someday, when you have time again, you'll need to read the Sociocracy book (titled, not helpfully, We The People). It's an attempt at a fix from a certain angle, and it's interesting.