Social Justice and The Rule of Law
Issue #70, October 2004
In its rhetoric, the Bush Administration claims that it is exporting the Rule of Law to create what it and other apologists for U.S. hegemony call the "New World Order." In colloquial terms, the Rule of Law expresses the degree of commitment that a society has for an ordered legal system. In its simplest expression, people should obey the law and allow themselves to be ruled by it. As we live in a constitutional democracy, much of our law can be understood as positive law — law created by the representatives of the people for the good of all. To the extent that the law does serve in this capacity, it demands our respect. Progressive, forward-looking, and humane laws have a role to play in helping society to construct more inclusive moral communities.
The problem is that law does not always work toward progressive ends, but respect for it remains. When we strip away the hyperbole that surrounds the Rule of Law, we find that it is nothing more than something shown by the officials of the political and legal systems to justify or to explain what they are doing. It is merely a narrative of authority, a solipsistic expression of some presumed worthiness. People support the legal order because they have internalized various legal principles and have reified them as moral standards. In most cases, people obey the law not because of fear of punishment but because they believe in the Rule of Law and choose to live their lives under it. The challenging of the integrity of the Rule of Law makes people angry, particularly when such challenges are articulated by competing political narratives, such as socialism. Such political narratives seem to them to be wrong, if not immoral.
Against the widespread belief that "violence begins when the law ends," this essay argues that the Rule of Law itself is often violent, particularly toward the poor. Thus, rather than romanticizing the Rule of Law and removing it from criticism, we can judge the law on its actual social effects and how it advances or fails to advance the cause of social justice.
Clearly, the lives of increasing numbers of people is becoming more difficult as the social wealth, opportunity, and life chances of the vast majority of the human population to a life of basic human dignity and fulfillment are declining. At the same time, the personal fortunes of a few, less than 1% of the world, dwarf the wealth of entire countries. In theUnited States, as throughout the world, wealth and power, privilege and status, are almost exclusively white and male. Little has changed in the past 100 years of racial, gender, and class conflict. The naked barbarism of the past is simply dignified by a legal system and economic philosophy that reject equality and justice as normative values and reify the most base aspects of human beings as the only expression of our humanity. Despite the vaunted Rule of Law, we live in a society that is, in the words of Daniel Lazare, "marked by freedom for an increasingly narrow elite and growing unfreedom for those below."
Objectively speaking, the U.S. Constitution is a compromise between the rich and the poor, drafted by the rich. The deal was this: The property of the rich was to be protected, and, in return, the poor (in particular) received some degree of privacy and liberty from government action. We must not forget that early U.S. law was, in no small part, a expansion of British law and that Britain was no eighteenth century bastion of democracy and justice. It is ironic and disheartening that both the United States and Britain portray themselves as just and democratic societies, when both have a long history of vicious, racist, and brutal imperial practices — these practices have not changed; they have merely become more politically savvy.
The genius of the U.S. Constitution was that it succeeded, however slowly, in both undertakings. The poor received protection from the worst forms of government abuse, while the wealthy received protection against the clamoring of the poor and the demands for economic justice. In effect, the poor received freedom at the same time that freedom became meaningless on substantive economic issues. While we can vote, it is exceedingly difficult to vote for social justice because the Constitution makes it difficult for the government to interfere with private wealth and power. Moreover, in a nation in which money is considered speech (see Buckley v. Valeo), we often cannot communicate our dissatisfaction through political channels, as well-funded political lobbyists and political action communities overwhelm citizen voices, even if we can pay.
The compromise represented by the Constitution does not make for democracy, although it does make for a relatively stable society. As such, we should not be satisfied with this compromise or assume that the stability it provides is inherently virtuous. We can do better. Freedom of speech and religion are important, but so are increased resources for the poor and substantive equality rather than a proliferation of pornography, which receives a panoply of free speech protection. Free speech, free religion, and due process of law are all relatively inexpensive for a society; this is all the more reason to have them. But without a more equal distribution of property, both within the U.S. and worldwide, social justice will not reign.
The Rule of Law can be beneficial, but it does not dispense justice unless we design it to and enact those intentions with good deeds. On the few occasions when, for example, the venerated U.S. Constitution did bring about social justice, the judiciary had to be dragged into allowing this evolution — dispensing reform in the smallest increments possible. Social justice, in short, is not a gift from a benevolent government or from the greatness of the Rule of Law. It is a condition earned through fighting the government and the Rule of Law. It comes from challenging the prerogatives of the elite. Without struggle democracy goes stale. As John Dewey explains:
We cannot continue the idea that human nature when left to itself, when freed from external arbitrary restrictions, will tend to the production of democratic institutions that work successfully. We have now to state the issue from the other side. We have to see that democracy means the belief that humanistic culture should prevail; we should be frank and open in our recognition that the proposition is a moral one — like any idea that concerns what should be.
Panegyrics about the Rule of Law and constitutions mystify rather than edify. Justice arrives only when the law is used as a tool for creating equality and cooperation, not hierarchy and competition. Market economies might stimulate economic growth, but they do not stimulate social justice. Market economies in the developing world are accompanied by severe repression of its citizens, particularly the people forced to labor under market conditions. Markets have never in themselves led to democracy, and are unlikely to do so now. Rather, they lead to oligarchy and to whatever concession to the public sphere the poor are able to coax out of the rich.
This is why a strong progressive government, one that is not constrained by constitutional protections for contracts and property, is important. We should not discard such protections totally, as they have their place, but we need not romanticize them. To do so is to ignore the marginalization and impoverishment of the mass of humanity and to support the willfulness of many governments to condemn the bulk of their citizens to a grinding poverty. Rather than romanticize property, we can make it work for the common good of all. This means building schools, affordable housing, hospitals, and factories to produce medicine cheaply and fund government services to ensure that no people go without a decent standard of living and working conditions that affirm their humanity. To ignore this responsibility is to cheapen the concept of wealth. It also lowers the humanity of the wealthy, turning them into moral monsters. This is the experience of history in the U.S. and elsewhere. The U.S. is strong but not because it is just. People who want a lesson in democracy should not look to the Rule of Law. Democracy comes from equality, and equality is based on shared wealth and access to the goods of society. If the Rule of Law facilitates this sharing of social wealth, then it is just. If not, the Rule of Law should be rejected.
Rejection of the Rule of Law should not be taken to suggest a denial of structure. Society needs structure, but it can reflect and serve a different set of normative values than those reified in the Anglo-American legal tradition, which sanctioned many of the most notorious atrocities of the nineteenth and twentieth centuries. The Rule of Law is but one form of structure — one that belongs to an earlier age of human moral development, one better left behind us. We would be shortsighted to assume that the Rule of Law is the best form of social structure — that humans are incapable of creating something different and more humane.
We might learn that the Rule of Law prevents us from attaining a much more inclusive and sustainable notion of the good. Perhaps the very sense of morality championed during the past several centuries in the Anglo-American tradition is what holds us back. Perhaps the globalization of American values will be recognized, as time progresses, as a setback for the human species. One day, in the not so distant future, the world may happily repudiate the superficial materialism many equate with American values. Until such time, however, we have to deal with the problems our system presents. The Rule of Law is a good place to start. Specifically, while the absence of social structure is undesirable, the mere presence of law is not itself a good, and its benefits often conceal its implicit barbarism. By accepting the Rule of Law, we simply may have substituted a more nuanced form of barbarism for a coarser version. The Law of the Jungle has given way to the Law of Greed. The claw and the fang still haunt the modern world. Injustice has become institutionalized and accepted as the birthright of civilization.
In fact, the Rule of Law, as it is known in the West, and the economic order it supports, have impoverished much of the world. It was not the former Communist countries that suffered the most devastating poverty during the Cold War, but the countries aligned with the so-called free world. With the fall of communism, the people in the ex-communist nations suffered and continue to suffer a decreased standard of living. Since the fall of communism, poverty world-wide has increased. Similar to the phenomenon in which the Civil Rights movement was forced to trade away its claims for economic justice to achieve formal equality, citizens of the former communist nations traded away their hard won claims of economic security for free speech and free religion. While these rights to free expression are important, the granting of civil rights and the collapse of the one-party communist state have done little to increase the material well-being of the people who since have gained little else. As social critic Todd Gitlin observes:
[T]he implosion of Marxism-Leninism has not resulted in modest intentions. Instead, the triumphant individualism of rights is commonly collapsed into a single right: the right of capital to increase. This right seems triumphant. This conquest of one wing of the Enlightenment by the other is incontestable. The market is trumpeted everywhere as the sole source of economic growth and the undisputed marker of social health. One hears all over, in South as in North America, in much of Asia and the former Soviet Union as in present-day Europe, that social problems can be solved simply by removing impediments to the flow of capital.
While the failure of totalitarian communism is generally seen as positive, less positive is the consequent wishful thinking that economic parity and popular morality follow or that the world is better off now that the United States is the sole superpower on the planet. The often expressed sentiment among many Americans that "it would be great for the United States to be a hegemon if it could do so successfully" is worrisome. In light of the U.S. invasion and occupation of Iraq and its other post-9/11 military posturing, there is growing concern by supporters of U.S. power that the hegemonic practices of the United States will work against the nation in the long run, spurring the reemergence of powerful nations such as Germany, Japan, China, and Russia and of alliances among them. They fear a world in which any of these nations, individually or collectively, could become powerful enough to challenge the United States. A sentiment underlying this fear was expressed by Fareed Zakaria, who, in Newsweek declared: "In principle, American power is not simply good for America; it is good for the world."
I could not disagree with Zakaria and other cheerleaders for U.S. hegemony more vehemently. The United States is not the world and America is undeserving of its power.I believe that the balancing feared by supporters of U.S. imperial policy is necessary for the creation of a world that is sustainable, just, and peaceful. Consider, for example, the potential of the European Union. I agree, along with philosopher Richard Rorty, that the possible emergence of the European Union into "a powerful independent force in world affairs" should be viewed "not as an expression of resentful anti-Americanism but as entirely appropriate and altogether welcome to the danger that the direction of American foreign policy poses for the world."
Such a view is not "un-American." When the parent of a school bully takes action to neutralize the damage caused by his or her child, we do not say that the parent is betraying the child. On the contrary, the parent of that anti-social child and, indeed, all of us have a responsibility to ensure that the things we are responsible for cause no harm. As commentator Martha Nussbaum suggests, "to worship one's country as if it were a God is . . . to pronounce a curse upon it." This is precisely what is occurring in the United States by the nation's "patriotic" supporters. To worship U.S. power is to worship the United States as a God. We have yet to experience the full implications of where this course of action may lead. The danger is that with an increased militarism and permanent instability, we can expect less accountability from, among other places, the executive branch. In this respect, the prospect of a second Bush administration is terrifying.
Restated, the salient issue is not: Can the U.S. succeed, in the long run, as an imperial power? Rather, the question is: why do we act so selfishly, so arrogantly, and so cruelly? Why view our prosperity as in competition with those of Germany, Japan, China, and Russia? Why should we attack nations that do not agree with us? Such thinking assumes an implicit worthiness about the United States that is unwarranted — we are no better or worse than any other nation, and we must be judged by our actions.
Two issues should not be conflated. First, we need learn to treat people decently by affirming their individual humanity. This goal has been well served by the Civil Rights movement and by the collapse of the totalitarian state. Second, we are more than individuals. We are individuals with needs. The Civil Rights movement and popular resistance to communism were not merely about political equality — they were fundamentally about economic opportunity. Economic freedom — defined here as freedom from want, not freedom to exploit — is more fundamental than political freedom because political freedom, no matter how important, is merely formal. People need substance. Outside of a few small and privileged communities, Anglo-American law has proven itself unable to provide this substance. While we are all equal in death, what matters is how we experience this life.
For all the wealth in the United States, it is severely concentrated and is growing ever so increasingly. One-fifth of the country lives in poverty and another substantial portion, some two million people, live in prison — the vast majority for property crimes or possession of drugs. As scholars committed to social justice continue to point out, the United States, which only 5% of the world's population, houses 25% of the world's prisoners. Is this the democracy that the U.S. wishes to impose on the world by gunpoint? Perhaps the poor in the United States are not, in absolute terms, as poor as their counterparts in Bangladesh, but these poor people in the U.S. (and in Third-World U.S. dependent states) are often without the social services that most people routinely received under various socialist systems. As historian Gabriel Kolko notes of Russia and China, privatization "has caused a profound depression among the masses, depriving them of whatever benefits they had under socialism and pitting them against those who have gained enormously from the 'market.'" In other words, Russia and China are becoming more like the United States. But both Russia and China were supposed to represent something more than this — something moral to which people in the United States could aspire (at least in its native expression, as exemplified by the socialist party of Eugene Debs).
The U.S. Constitution protects the social and economic inequality that leads to poverty and to the criminalization of the underclass, even encourages it, by denying government the power to channel social wealth away from private fortunes and into productive social ends. Slavery, genocide, segregation, the war on organized labor, child labor, and a host of other atrocities that are staples of American history were (or are) all constitutional. Constitutional rights, like those we rightly celebrate, largely did not come into this country until the late 1960s and are even being eroded in recent years. African Americans, Hispanic Americans, women, and laborers all can attest to this fact. The erosion of these rights has contributed to the rise of our Prison Society in which complex ethical and social issues regarding the equitable distribution of wealth in the United States and throughout the world become obfuscated by "law and order" rhetoric and policies that lead to corporatized prisons at home and military aggression abroad. Neither prisons nor armies do justice to our intelligence as human beings nor to America's image of itself as a source of hope for the world.
Omar Swartz is an assistant professor in the Department of Communication, at the University of Colorado. This is Professor Swartz's second essay published in Bad Subjects. His previous essay was Natural Law, Positive Law, Slavery, and Nuremberg: Toward a Pragmatic Legal Criticism in issue 69. He can be reached via email at: Omar.Swartz@cudenver.edu.