Along with critical legal theorist Roberto Mangabeira Unger and others, this essay argues that the institutional and imaginative orders of U.S. society are limited by the legal apparatuses in ways that make social justice difficult to achieve. The very legal norms that are proclaimed to be just, fair, and self-evident work in less visible ways to discourage alternative thinking about the structure of society and the feasibility of more inclusive social and economic communities. Therefore, in Unger’s words, people have a responsibility to challenge the legal and social order and “suggest alternative ways of defining collective interest, collective identities, and assumptions about the possible.”1 The goal of this paper is to provide such a challenge.
As it is currently conceptualized in the United States, the law is often a structural limitation on the moral development of society, effectively removing from public debate new forms of cooperation and community that would be possible through the widespread diffusion of human wealth and educational opportunity across the planet. By encouraging capital formation to the extent that a handful of the world’s six billion people control nearly all material wealth, the current legal order is making life increasingly untenable for everyone else (i.e., the resources necessary to sustain life are being privatized or destroyed). The basic needs of people-such as clean water, food, a non-toxic environment, and health care-are not accessible to all. In short, legal norms often reify a culture of selfishness and greed that stunts the moral development of our society and has a deleterious effect on the lives of the poor, both in the United States and throughout the world. To take one example, “Nicaragua spends 66% of the government’s revenue on debt repayment-three times the per capita amount spent on basic education.”2
While the Anglo-American legal system offers advantages over other legal systems, it also creates problems, particularly in the way in which it renders humanist morality irrelevant. These problems, grounded as they are in an exclusionary allocation of social wealth and opportunity, have grave implications for any society committed to a just, peaceful, and interdependent human community. Henry George, a critic of the first Gilded Age, noted that so “long as all the increased wealth of modern progress goes but to build up great fortunes, to increase luxury and make sharper the contrast between the House of Have and the House of Want, progress is not real and cannot be permanent.”3 One hundred and twenty five years later, in the second Gilded Age, this sentiment is still salient.
This essay begins by discussing the distinction between formal and substantive equality. While most Americans recognize and appreciate the gains made in formal equality as a result of the Civil Rights era, most do not realize that the concept of substantive equality could go a long way to help actualize the potential of the United States to live up to its national self-image of equal opportunity and fairness. Following this discussion, I turn to my central argument that the federal Constitution reifies an unconscionable class bias and that what Joseph Raz identifies as the Rule of Law further entrenches that bias. I conclude by arguing that the Rule of Law often precludes human rights and must be challenged if we are to make the legal order more just.
In his influential Law’s Empire, Ronald Dworkin describes his notion of “law as integrity” with a curious claim: “Propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice.”4 Dworkin grounds this claim in a personified community of judges, whose collective history, he assumes, expresses a coherent conception of justice and fairness. In so doing, Dworkin invents a meta-narrative with which these judges engage and which they extend. Fundamental to this narrative is the assumption that the law is structured by a coherent set of principles about justice, fairness, and procedural due process. The goal of judicial action, therefore, is to enact and preserve those principles. What makes for the best interpretation of law, claims Dworkin, is how well it fits and justifies pre-existing law.
Little about the law substantiates Dworkin’s claims. From 1789 until now, the law has largely reflected a commitment to the protection of private property and the codification of elite privilege. Exceptions exist, of course, but the telos of the law in the United States is toward structuralizing substantive inequality. Ironically, this trend has been exacerbated by realization of actual formal equality (itself a good) after almost two hundred years of struggle. While one might celebrate the moral victory of that accomplishment, the protection of formal equality often comes at the expense of a substantive equality in which the social and medical benefits of human civilization would be available to all. Formal equality presumes that all individuals are equal by virtue of their inherent agency, and that such agency is sufficient to overcome any material limitations on a person’s ability to actualize his or her goals.5
Such a notion of formal equality, a paradigmatic legal principle in the United States, ignores the way substantive differences in individuals’ backgrounds limit their ability to compete equally for social goods. To stress that people are unequal in native ability, intelligence, or strength is to miss the point. Social advantage in the United States-and increasingly throughout the world-is based on access to wealth. The children of the wealthy receive advantages and benefits that the poor do not (a poor child with inherent talents will not likely have a chance to cultivate them; instead, they will atrophy). A substantive approach to equality does not ignore inherent differences in ability among children; rather, it recognizes that these differences alone do not account for the way opportunity and privilege are currently distributed.
Feminist legal writers, for instance, have criticized the existing legal regime of formal equality from this point of view. Central to formal equality is the constitutional mandate that similarly situated individuals or groups be treated similarly.6 On its face, this position is reasonable because formal equality did not exist for women before 1971 and is not an achievement to be dismissed. However, formal equality is not enough. Many feminists and critical scholars have pointed out that a de facto inequality may lie behind a seemingly neutral and formally equal relationship. For example, contract law treats all parties alike, overlooking that an immigrant farmworker does not come to the table with the same degree of bargaining power as does a multinational corporation. Yet the formal equality guaranteed by the federal Constitution says little about this because the Equal Protection clause does not guarantee that a law be equitable in its impact. The only protection the law provides on this matter is against invidious discrimination, as when a person is singled out for adverse treatment when he or she belongs to a “suspect class” and the treatment was motivated by malice because of his or her membership in that class.7
For example, in Personnel Administrator of Massachusetts v. Feeney, the Supreme Court upheld a state law giving hiring preferences to veterans for state jobs, even though the preferences meant that the plaintiff, a female state employee with high seniority, was very unlikely to receive a promotion.8 The plaintiff made a strenuous effort to attain a higher paying position, but, in each instance, the position was filled by a newly hired male veteran with fewer objective qualifications. The Court reasoned that the purpose of the law was not to discriminate against women; therefore, it did not violate the equal protection of the plaintiff, even though few women at the time were able to participate in the U.S. military.
The purpose of substantive equality is to avoid this kind of legal conclusion, as when the Court in Schlesinger v. Ballard (one of its few substantive equality holdings) upheld the Navy’s “up or out” termination policy, in which male officers were terminated when passed over for a promotion a second time after 9 years, while female officers were discharged for non-promotion only after 13 years.9 The rationale for the Court’s decision was compensatory- females were only assigned to hospital ships and transports and were not allowed to assume combat roles. Thus, the Court concluded, female naval officers enjoyed less opportunity to compile the necessary records to compete with males for promotion. As the Court reasoned, a “longer period of tenure for women officers would, therefore, be consistent with the goal to provide women officers with ‘fair and equitable career advancement programs.'”10 Simply, a substantive-equality approach requires that law promote equality and work toward a society of dignity and respect, and should therefore be remedial:
It recognizes that social inequality exists and must be changed, rather than assuming a neutral and equal social world and avoiding legal differentiation to preserve it. It is based on noticing the reality of inequality in order to end it, rather than on enforcing a “color blindness” and gender neutrality, which have often meant a blindness to the unequal realities of color and gender. This mandate is interpreted with a particular sensitivity to, and priority upon, eliminating the inequality of groups that have traditionally been socially disadvantaged.11
Under this model, the law sets a floor below which no human can fall. To create this floor, the law needs to be active and progressive, not reactive and conservative. Substantive equality proceeds toward a vision of what human beings can accomplish once the barriers that prevent them from entering and competing in civil society as full-fledged members of the community have been removed:
This equality looks to “civil society” on the level of ordinary transactions and interactions: buying and selling, work and education and accommodations, home and the street, communications and insurance, as well as voting, elections, and juries.. It is rooted in everyday life, looking beyond the legal formalism of formal equality to social consequences.12
The advantage of substantive equality is that this perspective considers the results or effects of a relationship. In other words, A and B are not assumed to be equal simply because the law states they must be treated as if they were equal. More essential to an understanding of the relationship between A and B are actual differences in the relative power of each. The goal of substantive equality is to avoid outcomes that are patently unfair because they overlook a gross inequality in bargaining power. For example, African Americans have been granted formal equality, but few would agree that, on a substantive level, they are able to compete equally for social resources. As a result, African Americans, as a class, continue to be persecuted:
[A]lmost one in four black men between the ages of 20 and 29 is either in prison, jail, on probation, or parole on any given day. This means that there are more young black men in the criminal justice system than the total number of black men of all ages enrolled in college. For every one black man who graduates from college, 100 are arrested.13
Based on such statistics, Debra Small claims that the “‘war on drugs’ has replaced chattel slavery and de jure segregation as the main method of perpetuating America’s long history of racial oppression.”14 As long as no black plaintiff can point to a specific instance of government-sponsored discrimination, constitutional law is uncon- cerned about this condition.15 Therefore, a commitment to substantive equality would lead a person to support affirmative action or other ameliorative policies intended to create a society in which all people could compete equally for a respectable place in the national com- munity. Except in the most extreme of cases in which the highest level of judicial scrutiny is applied (i.e., strict scrutiny), however, such ameliorative practices are constitutionally impermissible.16
In brief, backlash against affirmative action began to receive Supreme Court approval in 1978. In Regents of the University of California v. Bakke, the Court declared unlawful the University of California at Davis medical school admissions policy, which set aside 16 places for racial and ethnic minority students.17 The Court nevertheless held affirmative action in higher education admissions to be permissible, provided that the judiciary subject racial classifications to strict scrutiny analysis, requiring that the policies be “narrowly tailored to achieve a compelling state interest.” Off the table were quotas and separate admissions tracks for minority students. Minorities, asserted the Court, could not be insulated from competition with the larger pool of privileged applicants.
The Court’s ruling in Bakke struck many as removing the essence of affirmative action-the goal being to ensure that students who belonged to racial and ethnic minorities could escape from the poverty and racism that hindered them in their formally equal competition with white middle- and upper-class students. The Court went further in other contexts, including Adarand Constructors, Inc. v. Pena (holding that all racial classifications, including those in federal program designed to foster minority enterprise, are subject to strict scrutiny) and City of Richmond v. J.A. Croson Co. (invalidating the city’s minority business program as violation of equal protection of whites).18
Thus, it was surprising that on June 23, 2003, the U.S. Supreme Court upheld the University of Michigan Law School admissions policy that considered race in order to attract “a critical mass of underrepresented minority students” (while striking down the university’s similar undergraduate admissions policy).19 To its credit, the Grutter Court recognized the importance of student body diversity as a compelling governmental interest that colleges and universities may pursue, in some circumstances, by considering race and ethnicity in admissions. Note, however, that this holding is only a limited victory in terms of substantive equality, as the extent to which race matters in college admissions remains tightly circumscribed. While some African Americans have used higher education to escape from poverty, the vast majority are precluded from such education and continue to live an economically and socially marginalized existence. This situation is inconscionable.
Gender provides another example of the need for substantive equality in the United States. Dominance theory, as articulated by Catharine MacKinnon, explores the imbalance of power between men and women, which has become encapsulated in many social and legal norms. MacKinnon and others criticize embedded assumptions in our society and in our laws that place individuals in hierarchical relationships, usually at the expense of women.20 In later work, MacKinnon extends her critique through a compelling attack on pornography, highlighting the nexus between law, power, hierarchy, and the subjection of women. Regardless of how people feel about the specific issue of pornography (MacKinnon’s critique is unfashionable), advocates of social justice and substantive equality would do well to take into consideration MacKinnon’s insight, flowing from her analysis, that “[w]ords and images are how people are placed in hierarchies, how social stratification is made to seem inevitable and right, how feelings of inferiority and superiority are engendered, and how indifference to violence against those on the bottom is rationalized and normalized”21 Simply, to assume that all people are equal (black and white people, men and women) is disingenuous when, in fact, a pervasive and extreme inequality is a systemic part of our social, economic, and mass mediated lives.
It is no secret that the Framers had a strong class bias and that they inserted that bias into the Constitution.22 As Charles A. Beard notes, the Framers were motivated to create a governmental system that avoided the political threat posed by the organizational strength of the poor. Beard explains how the poor are alienated from substantive political representation by the Federal Constitution:
This very system of checks and balances, which is undeniably the essential element of the Constitution, is built upon the doctrine that the popular branch of the government cannot be allowed full sway, least of all in the enactment of laws touching the rights of property. The exclusion of the direct popular vote in the election of the President; the creation, again by indirect election, of a Senate which the framers hoped would represent the wealth and conservative interests of the country, and the establishment of an independent judiciary appointed by the President with the concurrence of the Senate-all these devices bear witness to the fact that the under- lying purpose of the Constitution was not the establishment of popular government by means of parliamentary majorities.23
Thus, a person cannot study the Constitution and easily conclude that it is “fair” or “just”: It sanctioned African slavery, Native American genocide, child labor, and the disenfranchisement of women and the poor. Acknowledging these faults does not make them morally acceptable, particularly as they endured through much of subsequent constitutional history and in the way in which the United States interacts currently with the rest of the world. Yet, most people in law school talk as if the law stands for fairness and justice, as Dworkin does. Many assume that judges take justice into account when they decide cases. Many people also assume that the study of justice is an important component of a legal education. Neither assumption is accurate. Writing about his experience at Harvard Law School in the mid-1950s, William Stringfellow expressed similar sentiments to those I experienced at Duke Law School at the end of the twentieth century:
I was appalled by the overwhelming subservience of legal education to the commercial powers and the principalities of property. I thought that a law school should devote at least as much attention in its curriculum to the rights and causes of people as it does to vested property interests of one kind or another. I also thought, while I was in law school, that justice is a suitable topic for consideration in practically every course or specialization. Alas, it was seldom mentioned, and the term itself evoked ridicule, as if justice were a subject beneath the sophistication of lawyers.24
My sense of law school was that the professors and the majority of students, as well as the judges and Justices in the court cases we read, tended to assume a priori that the legal system is just and that any perceived flaw in the system is an anomaly to be redressed by further law. This went unquestioned, although students read of many cases that codify social injustice. While students are encouraged to interrogate the reasoning of any specific ruling, they are discouraged from extrapolating to any larger critique of the system. Most students do not resist this quietism and passivity, as resistance could compromise their anticipated $110,000-a-year (or more) starting salaries, useful for paying off the more than $100,000 average debt that students incur at the best U.S. law schools.
In the current composition of the Court, under the influences of Justices Rehnquist, Scalia, and Thomas, the intolerance, elitism, and corporatism that are embodied in our Constitution are evident and even celebrated “in the conservative revival that is rapidly becoming the creed of the American political majority.”25 Fundamental to this celebration is a reification of the past as a moral compass for the future (for example, see the reasoning of Michael H. v. Gerald D. and Bowers v. Hardwick).26 We see this in Dworkin’s metaphor of the “chain novel,” where judges use generations of past judicial reasoning as a moral grounding to guide their decisions. Dworkin compares judges’ interpretations of law to a novel written by many authors. The law, under this view, is like a soap opera that continues over many generations. Even if the different writers work from different personal views, they are constrained by the plot, by the work of previous writers. Present writers, therefore, must compromise their own views so as to maintain the integrity, consistency, and believability of the script. Once again, this is a conservative view of law, one that remains mired in the moral shortcomings of the past.
The more the past serves as a guide for present judicial reasoning, the less room there is for justice, fairness, or due process. These norms, if they exist at all, have only become important in the last few years and only in spite of legal history.27 Dworkin’s model reminds me of the childhood game of “operator,” in which an oral message becomes distorted and unrecognizable as it works its way through a chain of people. In Dworkin’s view, judges are subject to more constraints in reaching their decisions when they take as their guidepost values from the past; but the law, unlike the game of operator, is a conversation that extends relatively unbroken in the Anglo-American legal tradition for more than 500 years. It is, to a large extent, the law of intolerance, social control, aristocracy, and imperialism. True, 500 years makes for much law but not necessarily for much justice, fairness, or procedural due process. In many ways, the Anglo-American legal tradition is as much a relic as the Roman legal tradition, both of which supported, if they did not encourage, the cultivation of empire.28 To escape from the terrible weight of this past, we would be advised to adopt a jurisprudence that is forward-looking and contemplates the needs of the twenty-first century instead of one that continues to enforce the limitations of past inequality. As such, traditional legal rationales need to be demystified so that respect for the Rule of Law can be tempered and humanistic values (so-called second- and third-generation human rights, as discussed below) affirmed.
In the twenty-first century, world culture is moving toward what apologists for the status quo call the Rule of Law or, alternatively, the New World Order. The ideas grounding this legal ethos have been expressed clearly by Joseph Raz.29 According to Raz, the Rule of Law expresses the degree of commitment that a society has to an ordered legal system. In its simplest expression, people should obey the law and allow themselves to be ruled by it. Having witnessed the democratic turmoil of 1968, Leon Jaworski explains the importance of this principle:
Common disrespect of some orders of our courts is sure to breed an attitude of disrespect for other laws, and if law after law is to wither on the vine of disrespect, society is destined to retrograde [sic] to the law of the jungle. If we disagree with an existing law, we have open to us the legislative processes to abolish it. If we disagree with a court order, we have the right of appeal; and if it is finally upheld, we as good Americans are obliged to respect it so long as it remains the law. [The] streets and the highways and the campuses and the beaches are not the places for recourse. Under our constitutional form of government, recourse must be sought in the legislative halls and by due process of law.30
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. To be valid, however, positive law must be grounded in the legal authority of the Federal Constitution, which is the most important rule of recognition in our society, the ultimate standard of legal evaluation. Positive law therefore, is dependent on the larger legal norms that allow it to be expressed.31
Like other rules of recognition, the Constitution itself is not valid or invalid but simply is. Objectively, it is neither moral nor immoral; rather, it posits its own morality-literally creates it-which can be either accepted or rejected. When we strip away the hyperbole that surrounds the Constitution, 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.32 People support the legal order because they have internalized various Constitutional or 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 our constitutional framework and choose to live their lives under it. The challenging of constitutional norms 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. Challenges to calcified ethics are usually seen as unethical by the group whose ethics are being challenged.
Yet challenging such ethics is essential for social justice to emerge as an elevating force in society. In a paradigmatic example from the end of the nineteenth century, the U.S. Supreme Court used a rationale similar to Jaworski’s to uphold the power of the federal government to imprison Eugene Debs and other American Railroad Union members for their leadership in the famous Pullman Strike. In teaching a “lesson” to the defendants and to the larger labor movement, the Court crystallized the Rule of Law’s fear of grassroots political change:
It is a lesson which cannot be learned too soon or too thoroughly that under this government of and by the people the means of redress of all wrongs are through the courts and at the ballot box, and that no wrong, real or fancied, carries with it legal warrant to invite as a means of redress the co-operation of a mob, with its accompanying acts of violence.33
Under the Court’s rationale, the civil rights movement, as well as most other more modern progressive social movements in the United States, would be rendered illegitimate, as their mere existence would have been considered a “mob” threatening “democratic” processes, posing threats, perhaps, to “national security.” By rendering the “mob” undemocratic, the Court alienates the expression of “we, the people” (the vast bulk of the U.S. population that has never been part of the governing economic elite, and in whose interest such government seldom acts).34
In addition to adherence to the law by individuals, the Rule of Law requires that the government be ruled by law and be held accountable to it. Law, in this sense, is bigger than government and binds all if it meets the conditions of validity as established by the legal system (i.e., primary rules). Such law must be capable of being obeyed (i.e., no retroactive crimes) and thus serve as a guiding or prescriptive force. Fundamental to such a legal system are clarity, openness, judicial independence, natural justice, judicial review, and procedural constraints against an overly zealous police force.
The appeal of this system of law and order is obvious, at least to the extent that the absence of these principles is indicative of an unjust legal order. Collectively, they require that the law conform to standards designed to enable it to effectively guide action and to ensure that the legal apparatus does not undermine the values of the law. Above all else, they purport to prevent arbitrary power. A government subjected to the Rule of Law is prevented from changing the law to suit its purpose. The purpose of such Rule of Law is to stabilize forms of social life, establish long-term goals, and help people attain those goals. The assumption is that the Rule of Law stabilizes social relations, preventing them from degenerating erratically and unpredictably. The Rule of Law, thus, is a negative virtue.35 By itself, this relationship is insufficient to guarantee security and dignity for a majority of people on the planet (or even in the U.S.).
Raz argues that the Rule of Law is an ideal. It is a standard to which specific laws ought to conform. But could we not, along with Peter Kropotkin, conceive of the Rule of Law as itself a corruption of the social fabric? Assume, for example, that the natural state of affairs is mutual aid that is enforced by evolutionary pressures. Within such a framework, the social ideal would be cooperation and compassion that came from inside people and radiated outward. The Rule of Law, in such a world, would be an artificially imposed constraint placed on the natural impulses of society to act for the common good-such as a collective impetus against an inequitable distribution of wealth or power. Perhaps the degradation and violence that characterize life in the inner cities of the United States, for example, reflects frustration of the collective desire to seek such a common good. Similarly, the extreme collective frustration of the Palestinians and the tendency of that frustration to erupt into violence may stem from the same source-a sociological reaction to a world order imposed on them that views others (i.e., the Israelis) as legally more important (for example, Palestinian violence is condemned by the United States but Israeli violence is positioned as part of their legitimate right to self-defense). Seen in this way, the Rule of Law could be conceptualized as a corruption, and the violence bred within a community may be seen as efforts to restore some kind of natural order and dignity. Thus, rather than being designed to minimize harm to freedom and dignity, the Rule of Law is itself often a violation of these values.
This is a variant of Kropotkin’s argument that the guarantees necessary for collective life best can be derived from collective agreements for the common good. These collective agreements would reflect a pragmatic morality and not a legal sensibility per se. Society would conform to community needs and would not privilege some classes of humans over others, as is done both to African Americans in U.S. inner cities and to the Palestinians in the occupied territories, all of whom can be justly characterized as being victimized by the Rule of Law. Through no fault of their own, children born into these communities inherit a legacy of social, economic, and civil dispossession, stunting their potential.
While differences among people would continue to exist, in Kropotkin’s narrative, these differences would not be invested with symbolic or structural significance. Authority would no longer be arbitrary, as it is currently, and would be grounded in the material conditions or exigencies that confront the community. Law, in this sense, would be generated by the needs of the community as an adaptation, a striving toward the good life, and would not to be imposed from above or from without. This can be contrasted with the way in which law has been historically conceptualized, in Kropotkin’s view, “to implant or strengthen the nascent authority of the king, the nobleman, the soldier and the priest, to consolidate and sanction their power and their authority.”36 Criminal law would still exist in the new legal system I am proposing, but not as proscriptions handed down by the state. Violations occur when a person acts selfishly and thereby offends the well-being of all. Homicide, rape, and similar activities still would be prohibited because they introduce an uncertainty that undermines the group’s solidarity and collective security.
While acknowledging the functional aspect of law, as does Raz, I nevertheless caution against investing too much political currency in the concept of a “legal sensibility.” The government that rules best is the one that does not rule by physical force, but rules, instead, by the force of its ideas. While such “force of ideas” may include law and a legal sensibility, a morally just political regime is clearly not dependent upon having a legal sensibility. In other words, the presence of a legal sensibility is not a sufficient condition for a morally just political regime to exist. The U.S. Constitution, as mentioned earlier, was textually and practically committed to slavery for the first eighty years of its existence:
It forbade Congress to interfere with the slave trade for twenty years, limited its power to tax slaves, and required it to put down slave rebellions wherever they might occur. It enjoined free states to respect the laws of slave states by returning runaways, and it denied slaves the right to sue in federal court. It stipulated that slaves were to be counted as three-fifths of a person for purposes of apportioning seats in Congress and the electoral college, thereby adding to slave owners’ clout in both the House and the executive branch.37
This is a case of an immoral political regime grounded firmly in the Rule of Law. Such immorality is not limited to the past. Government brutality often co-exists within our well-defined and more modern legal systems (consider, for example, the U.S. suppression of the Black Panther Party in the 1960s and the long-term repression of organized labor). Moreover, the Rule of Law or a legal sensibility is not a necessary condition for a morally just society to exist, as anarchist-controlled Spain in the 1930s suggests.38
My inclination, therefore, is to reduce law to a sub-category of literature.39 By this I mean nothing more than to deflate the metaphysics of presence that endows the Rule of Law with an a priori dignity which demands our unthinking allegiance and commitment to the political status quo. Rather, the ideology of political tolerance and social inclusion, the grounding of justification for political leadership in a governmental practice of good deeds and social justice, and the encouragement of mass critical thinking and freedom of expression are, in my view, more effective ways to normalize society. An institutionalized commitment to a humanist praxis and not a legal sensibility per se would go a long way toward constraining any government from acting unjustly or brutally.
Many different types of texts-not only legal texts-help redefine our social imagination.40 Although a legal sensibility would still have a place, approaching the law in this new fashion helps us to become less missionary in our zeal to promote the Rule of Law as a political ideal. We thus escape from what Daniel Lazare calls the constitutional “fetish” or “cult,” which contributes to an inflated view of ourselves as a nation and to the perpetuation of our moral blind spots.41 Simply, to the detriment of U.S. society, Americans easily exaggerate the importance of law. As Howard Zinn observes:
Until American citizens can overcome this idolization of law, until they begin to see that law is, like other institutions and actions, to be measured against moral principles, against human needs, we will remain a static society in a world of change, a society deaf to the rising cries for justice-and therefore, a society in serious trouble.42
The long shadows of racial injustice in this country; the U.S. wars of aggression in Vietnam, Central America, and the Middle East; and older events such as African slavery, Native American genocide, and the military occupation of the Philippines in the nineteenth century should caution us against panegyrics about the civilizing effects of the Rule of Law. While the tendency today is to dismiss these events as mere history-as inconsequential to understanding our present-this is a mistake. Little in our legal imaginations today differentiates us from past generations of Americans. The U.S. invasion and occupation of Iraq in March, 2003, is evidence of this point (the primary justification for the invasion, misleading and as manipulative as it was, was that Iraq possibly could be a threat in the future). The military occupation of Iraq serves as an example of the ability and willingness of the United States to redefine international standards of security and international law in its own image.
In describing the continuation of our moral disease from the intolerant nation we were in the past to the intolerant society we remain, the problem is not only racism, but also the tendency to legalize what we have the power to accomplish. The U.S. has treated and continues to treat weaker nations with contempt and manipulation, and to define such conduct in legal terms. Imperial power and opportunism mask themselves with the rhetoric of legality. While we clearly need rules so that we can structure society, experiment with new and better self-descriptions, and reduce personal and public cruelty, danger lies in taking the idea of law too seriously. This point cannot be overstated. As the legal positivist tradition in jurisprudence makes clear, there is no inherent connection between law and morality.43 Therefore, we need to craft a better practice of social organization more consonant with values of social justice, economic democracy, and international fraternity.
When we take the idea of law too seriously, we forget that the legal tradition has done much harm and that society is often most sensitive to human dignity when people learn to resist the legal sensibility imposed upon them and redirect their attention to other sources of moral inspiration.44 The history of human progress lies here, represented in such figures as Spartacus, Sojourner Truth, Leon Trotsky, and Nelson Mandela in his struggles to end the apartheid regime. Progress often lies in the deconstruction of an unjust order, not its reification. It is not the lawgivers whom we should most respect-not the Solons and Moseses of the world-but the people who resist those laws, not out of criminal malice or a desire to do harm, but as an expression of human potential, out of a new vision of what human beings can become. As Nietzsche notes, “There is a continual moiling and toiling going on in morality-the effect of successful crimes (among which, for example, are included all innovations in moral thinking).”45 In this way, we can move forward as a species toward greater levels of social and economic inclusion.
Moral change and social development, rather than stasis, are healthy and necessary parts of any society. But the Rule of Law does not allow for moral change, at least not in a timely manner. As Justice Benjamin N. Cardozo wrote, the modification of law is gradual, it “goes on inch by inch. Its effects must be measured by decades and even centuries. Thus measured, they seem to have behind them the power and the pressure of the moving glacier.”46 This metaphor is telling, although not in the way Cardozo may have intended. Cardozo claims that the law has moral sanction because it is self-correcting. Law that does not conform to the collective good, as described above, over time will be rectified. In other words, the law catches up with the community eventually. There is an element of truth in this idea (as with the abolition of slavery). To the extent that Cardozo’s characterization is accurate, his notion of law may have much in common with Kropotkin’s view of what an ideal legal system would look like. However, it is possible to read Cardozo’s metaphor in a different way. His glacier metaphor affirms the power of the social elites to hold back the moral evolution of society. No community should have to wait centuries for the legal system to evolve to the point where it can provide social justice (and no individual should be forced to wait beyond his or her own lifetime).47 This is simply another version of the myth of the eighteenth, nineteenth, and early twentieth centuries in which slaves and later industrial workers were told by their masters to suffer the imperfections of this life in order to reap the rewards of the next life. If law is such a glacier that it defers social justice to future generations, then the people who live today might sensibly ignite a fire of spirit and civil disobedience. If not, we will remain in a prolonged and preventable ice age.
In short, nothing is sacred about Western notions of “law” that make it different from what traditionally has passed as politics in overtly totalitarian societies. Law in the U.S. is often an expression of the totalitarian sensibilities that exist, however muted, in this country. Freedom comes not only from law but also from the extra-legal efforts of people to challenge their society’s notions of community through whatever means necessary and to persuade the privileged to allow for an increased access to that society’s social goods.48 As the world society grows more unequal and more non-egalitarian, the law will continue to codify and rigidify such inequality.
Under the Rule of Law, for example, the market economy is exalted as being beneficial to all, although this is clearly inaccurate. The strong win, the weak lose; helping the “losers” is considered by many as a waste of resources. No matter how we dress up our market talk with hyperbole or attribute to it a beneficence, the market is essentially a place where the strong consume the weak and the weak are perceived as deserving their failure. The Japanese were very honest in this regard. After the Los Angeles riots in the summer of 1992 (sparked by the acquittal of law enforcement officers responsible for the malicious beating of an African American motorist), representatives of many nations published short com- ments in the Los Angeles Times. Each explained that U.S. society had too much inequality-was too extreme and harsh with its market practices. This inequality, many of them argued, was responsible for the riots. Each remarked that the U.S. should be more “fair” to African Americans and work toward a more just distribution of the nation’s wealth. The lone exception to these sympathetic comments came from Japan, a country with significant market experience. The Japanese contribution baldly stated that in a capitalist society there are “winners and losers.” Everyone knows this, the editorial suggested, so why were Americans surprised when the “losers” rattled the bars of their cage? The Japanese expected this domestic violence as an inevitable part of our economic and class system. If we were more honest with ourselves we would come to see that we should expect such violence as well. After all, such violence was a recurrent (or systemic) part of the U.S. economy through the years leading up to the Great Depression and the New Deal.
Thus, if our goal, as a society, is to reduce inequality, the Rule of Law will not necessarily help us. Such law, particularly U.S. constitutional law, is itself a significant part of the problem. The limitations of the American Civil Rights movement are grounded in the strategic decision made by its leaders to ignore or downplay this point: “Ending legal segregation was a great victory but it brought with it its own kind of amnesia. It could have, but did not, call for concrete political and economic actions to redress three hundred years of victimization, and this is a kind of forgetting.”49 For small political gains, the Civil Rights movement agreed to give up its claim for substantive justice. The result, as noted above, is formal equality at the expense of the substantive kind.50
What United States law-and even international law-accepts as human rights are first-generation rights. These stem from the European Enlightenment and are essentially negative rights (govern- ment restrictions)-civil and political liberties such as freedom of speech, religion, the press, the rights associated with criminal law, and the political franchise. While these rights all have their advantages, they are little more than constraints on government.51
As power increasingly becomes private, however, these rights grow increasingly irrelevant. Moreover, under this system of human rights, the government has no obligation to provide any social good. As noted by Shashi Tharoor, “The idea that human rights could be ensured merely by the state not interfering with individual freedom cannot survive confrontation with a billion [or more] hungry, deprived, illiterate, and jobless human beings around the globe. Human rights, in one memorable phrase, start with breakfast.”52
Consider the following hypothetical illustration: Smith works, but he lives in poverty. Smith’s parents were poor, so he did not receive an education adequate for him to break out of the cycle of poverty to which he was born. He, along with his children, suffers from malnutrition. Perhaps he also suffers from a broad range of environmental poisonings such as lead or pesticides and does not have access to medical resources. In our society-and in many societies throughout the world-Smith’s human rights would not be considered violated. Simply, Smith has no right to meaningful education, nutrition, healthy environment, or medical attention. Smith, we are told, is not a victim; rather, he is the master of his own destiny. If Smith is unhappy with his condition, he is free to change it. While Smith may be deserving of charity, he has no claim to justice.
Worse, the government is even precluded from interfering with the economic factors that have contributed to Smith’s condition. Government interference with the social forces that lead to malnutrition, contamination, and inaccessibility of healthcare may itself constitute a human rights violation of the people who control the resources involved. The Fifth Amendment precludes such “takings” without “just compensation.” The federal government and most state and local governments are finding it difficult to pay such compensation because of self-imposed limitations on their ability to impose taxes as well as their enthusiasm for allocating increased money for the military, police, and prisons. This condition exists because, under a system of negative rights, the most important is the right to property. Accumulated wealth is constitutionally removed from politics, and the government can only help people such as Smith if the resources to do so do not derive from the wealthy. Since the wealthy have no obligation to help Smith, and because they often make it politically difficult for the government to raise taxes, Smith suffers without being victimized in any legal sense.
Consequently, social resources trickle up and consolidate in the pockets of a few who need the institution of government only to protect their wealth. Multinational corporations (many with resources dwarfing those of sovereign nations, and with their own overseas police and militias) are becoming their own political authorities, further extending and entrenching their property rights. Without government protection, the rest of us become reduced to the status of a surplus population. The term “surplus population” denotes the condition that has arisen under neo-liberal economic policies that exacerbate the gap between the extreme wealthy and the extreme poor. Throughout the developing world, only about 20% of the population are included in the social, civic, and economic institutions of their society. The remaining population-including some 100 million street children-have little status as human beings and little productive role to play in the construction of their society. These outcasts are spurned and treated as non-human.53
Second-generation human rights attempt to remedy this and related conditions worldwide. These economic, social, and cultural rights affirm the dignity of every individual so that their developmental and human needs are met. Under this model, Smith would be considered a victim, and would be guaranteed such necessities as adequate nutrition, reasonable shelter, healthcare, as much solid education as he is capable of acquiring, and leisure from labor so he can reflect upon and enjoy his life-what loosely can be called “the right to poetry” (workers, after all, need both bread and roses). Crucially, these rights recognize that all people are entitled to be treated like human beings and to belong as full-fledged members of the larger political and moral communities. Governments that willfully privilege an elite segment of their population at the expense of people like Smith would be, under this civil regime, as morally culpable as governments that persecuted their citizens for racial or religious reasons.
We have come to the point in the development of human culture where poverty as we know it is no longer inevitable and the fruits of human cultural and economic labor can be widely distributed. Perfectly preventable, poverty today exists because it serves the interests of the ruling elite and the governments they control. This is a perverted politics, one that can be corrected by a wider notion of human rights. Second-generation rights implicitly recognize that government is an essential part of a well functioning society in which the normative values that underlie community life stress cooperation, mutual aid, and the expression of an authentic culture driven by morality, not by market expansion. As stated by Tharoor:
For the sake of the deprived, the notion of human rights has to be a positive, active one: not just protection from the state but also the protection of the state, to permit these human beings to fulfill the basic aspirations of growth and development that are frustrated by poverty and scarce resources. We have to accept that social deprivation and economic exploitation are just as evil as political oppression or racial persecution.54
Economic and social rights, championed by many nations prior to the 1980s, are today guaranteed in only a few countries throughout the world (such as Cuba and Sweden), as they conflict with the neo-liberal economic policies championed by the United States, Britain, the World Bank, and the International Monetary Fund.
More recently, third-generation human rights have found support in the General Assembly of the United Nations, which is largely a symbolic body populated by impoverished, dependent nations. But these rights also are hampered by neo-liberal geopolitics and the resistance of the developed nations. These rights, supported by the developing world, are collective group rights, such as the right to self-determination and the right to national development. Under this model, the Western industrial powers systematically violate the human rights of people living in the developing world by denying them the political and economic autonomy to master their own destinies and by interfering militarily in their affairs. Millions starve to death in regions of the world, such as Central and South America, where food is plentiful; a handful of people control all of the region’s wealth; and crops are exported for never-ending debt repayments to international and/or U.S. financial institutions, pro- viding cheap produce for U.S. consumers. Otherwise kind and decent Americans are unaware that the food they consume arrives courtesy of a world-distribution system that perpetrates starvation and despair. Even in our consumption of food, we allow the law to reify a deadly crime as part of the normative order.
Constitutions and the Rule of Law can do good work, but they do not dispense justice unless we, the people of the United States and the world, design them to do so and implement them appropriately. On the few occasions when the U.S. Constitution was applied in the name of social justice, the judiciary had to be dragged into allowing this evolution-dispensing reform in the smallest increments possible (as with political and social equality for African Americans and for the poor, more generally). Further, the International Rule of Law does little to constrain the aggres- sions of the United States or to contribute to just economic policies that improve the lives of people living in the developing world. 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, through insisting that the function of social order is above all to meet human needs. It comes, in other words, from challenging the prerogatives of the elite.
Panegyrics about the Rule of Law and the U.S. Constitution mystify rather than edify. As Lazare notes, “The more revered the Constitution grows, the more society beneath it will decay.”55 That is why challenging the legal and social orders is important; it reminds us not to take the Rule of Law and the constitutional order too seriously. Justice arrives only when the law is used as a tool for creating equality and cooperation, not hierarchy and competition. Such hierarchy and competition 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 necessarily 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 encourages this sharing of social wealth, then it is just. Alas, in many important instances, it does not.
1. The Critical Legal Studies Movement (Cambridge, MA: Harvard University Press, 1986), 111.
2. Rita Maran, “A Report From the United nations World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, Durban, South Africa, 2001,” Social Justice 29 (2002), 179.
3. “Progress and Poverty,” in Richard Hofstadter, ed., Great Issues in American History v. 3 (New York: Vintage, 1982), 63.
4. (Cambridge: Harvard University Press, 1986), 225.
5. My resistance to Dworkin sparked my thinking in this paper. Dworkin, of course, is not the only voice on this topic. See, for example, see , Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: MIT Press, 1996).
6. Reed v. Reed 404 U.S. 71 (1971).
7. Note that the poor do not constitute a suspect class for the purposes of enforcing formal equality. See San Antonio Independent School District v. Rodriguez 411 U.S. 1 (1973) (holding that the federal Constitution does not guarantee a fundamental right to education).
8. 442 U.S. 256 (1979).
9. 419 U.S. 498 (1975).
10. Ibid., 508. Schlesinger is discussed because it is the textbook example of the Court’s rare foray into substantive equality. A reviewer for this paper suggested that a more recent decision, United States v. Virginia, 518 U.S. 515 (1996) might serve as a better example. In that case, the Virginia Military Institute (VMI), an elite state military academy, was resisting a court-ordered integration of women cadets. The women argued that the state’s exclusion of them from VMI was a violation of their equal protection guarantees, which of course it was. However, because gender is a category that receives a lesser type of judicial scrutiny than does race (“intermediate scrutiny” as opposed to “strict scrutiny”), VMI had its argument accepted that the women cadets be segregated to a separate institution created for them as an alternative to VMI. Such “separate but equal” accommodation was held to be permissible, although the U.S. Supreme Court later found that the alternative school was grossly unequal. In the process, the Court raised the scrutiny level for gender by applying a new and somewhat murky “exceedingly persuasive justification” standard. Thus, while the Court reasoned in substantive equality terms (i.e., the two formal academies had differential value), it did not, in effect, override the constitutional inequality that exists vis-à-vis men and women. For the above reasons, I do not consider the VMI case to be as good an example of substantive equality as the older Schlesinger decision.
11. Catharine MacKinnon, “Crimes of War, Crimes of Peace,” in On Human Rights, eds., Stephen Shute and Susan Hurley (New York: Basic Books, 1993), 103.
13. Anthony M. Platt, “Social Insecurity: The Transformation of American Criminal Justice, 1965-2000,” Social Justice 28 (2001), 147.
14. “The War on Drugs Is a War on Racial Justice,” Social Research 68 (2001), 897.
15. See McCleskey v. Kemp, 481 U.S. 279 (1987)(upholding the death sentence of an African American man despite conclusive evidence that the application of the death penalty is racially skewed); the Court argued that no error could be found in McCleskey‘s particular trial.
16. It is no small irony that strict scrutiny, originally created to protect African Americans from legal inequality, is now the standard to prevent African Americans and other minorities from benefiting from affirmative action policies intended to remediate their past victimization by the law.
17. 438 U.S. 265 (1978).
18. 515 U.S. 200 (1995); 488 U.S. 469 (1989).
19. Grutter v. Bollinger, 123 S. Ct. 2325; Gratz v. Bollinger 123 S. Ct. 2411
20. See Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987). This hypothesis bears itself out in many historical as well as contemporary cases. For a collection of these cases, see Katharine Bartlett and Angela Harris, Gender and Law: Theory, Doctrine, and Commentary 2nd ed. (New York: Aspen Law & Business, 1998).
21. Only Words (Cambridge, MA: Harvard University Press, 1993), 31. Of course, more recent writing in critical race and critical legal theory is also suspicious of the same phenomena that both MacKinnon and I critique (i.e., liberalism, reformism, faith in the traditional Anglo-American Constitutional order, and belief in the inevitability of social progress).
22. Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New York: Free Press, 1941).
23. The Economic Basis of Politics and Related Writings by Charles A. Beard (New York: Vintage, 1957), 144.
24. A Keeper of the Word: Selected Writings of William Stringfellow (Grand Rapids, MI: William B. Eerdmans Publishing, 1994), 32.
25. Richard A. Brisbin, Jr., Justice Antonin Scalia and the Conservative Revival (Baltimore: Johns Hopkins University Press, 1997), 1.
26. 491 U.S. 110 (1989); 478 U.S. 186 (1986). Note: Bowers was repudiated on June 26, 2003 in Lawrence v. Texas U.S. LEXIS 5013.
27. See Peter Irons, A People’s History of the Supreme Court (New York: Viking, 1999).
28. Following the U.S. invasion and occupation of Iraq, Amitav Ghosh argued that the American Empire is but a continuation of the British Empire: “What President Bush likes to call the ‘coalition of the willing’ is dominated, after all, by America, Britain, and Australia-three English-speaking countries whose allegiances are rooted not just in a shared culture and common institutions but also in a shared history of territorial expansion.” See “The Anglophone Empire,” New Yorker (April 7, 2003), 46.
29. The Authority of Law (Oxford: Clarendon Press, 1979).
30. “The United States Faces Today a Serious Threat to Her Continued Existence as a Free People,” in Robert M. Baird and Stuart E. Rosenbaum, eds., Morality and the Law (Buffalo, NY: Prometheus Books, 1988), 88.
31. H.L.A. Hart, The Concept of Law (New York: Oxford University Press, 1997).
32. L.H. Larue, Constitutional Law as Fiction: Narrative in the Rhetoric of Authority (University Park, PA: The Pennsylvania State University Press, 1995).
33. In re Debs, 158 U.S. 564 (1895), 599.
34. The North Carolina Agricultural & Technical State University students who demonstrated on February 1, 1960, for integration at a Woolworth’s in Greensboro, N.C.-sparking similar protests around the country-would have laughed at the Court for asserting that the redressing of social wrongs must be accomplished at the ballot box or before the judiciary. See James S. Bowen, “Law, Legitimacy and Black Revolution: Toward a Theoretical Understanding of Contemporary Black Student Protest and Its Legacy for Modern America,” Yale Journal of Law and Liberation 1 (1989), 88-90 and William Henry Chafe, Civilities and Civil Rights: Greensboro, N.C. and the Struggle for Freedom (New York: Oxford University Press, 1990). These students knew better. If struggling people in the United States were to depend on judges and voting alone to improve the conditions of their lives, to make the law more representative of their needs, U.S. society would be vastly more impoverished.
35. Later in this essay I will highlight the connection between the Rule of Law and the first generation of human rights.
36. Evolution and Environment (New York: Black Rose Books, 1995), 51.
37. Daniel Lazare, “America the Undemocratic,” New Left Review 232 Nov/Dec, 1998, 17.
38. George Orwell, Homage to Catalonia, (New York: Harcourt Brace, 1952).
39. James B. White, Heracles’ Bow: Essays On The Rhetoric and Poetics of the Law (Madison: University of Wisconsin Press, 1985).
40. See, for example, Hayden White, The Content of the Form: Narrative Discourse and Historical Representation (Baltimore: The Johns Hopkins Press, 1987); Richard Rorty, Contingency, Irony, and Solidarity (Cambridge University Press, 1989); Martha C. Nussbaum, Poetic Justice: The Literary Imagination and Public Life (Boston: Beacon Press, 1995); as well as the works of Karl Marx, Sigmund Freud, and Friedrich Nietzsche.
41. “America the Undemocratic.” Lawrence M. Friedman refers to this phenomenon as the “American habit” of constitutionalism. “The Constitution and American Legal Culture,” Saint Louis University Law Journal 32 (1987), 2.
42. Disobedience and Democracy: Nine Fallacies On Law And Order (New York: Vintage, 1968), 23.
43. H.L.A. Hart, The Concept of Law 2nd ed. (Oxford: Clarendon Press, 1997).
44. Such as the case with Martin Luther King, Jr. See Stride Toward Freedom (New York: HarperCollins, 1958).
45. Daybreak: Thoughts on the Prejudices of Morality (Cambridge University Press, 1997), 59.
46. The Nature of the Judicial Process (New Haven: Yale University Press, 1949), 25.
47. For example, the journeymen bakers who were the subject of Lochner v. New York struggled for fifteen years to achieve the legislation that the Supreme Court invalidated. See Matthew S. Bewig, “Lochner v. The Journeymen Bakers of New York: The Journeymen Bakers, Their Hours of Labor, and the Constitution,” American Journal of Legal History 38 (1994), 426.
48. See Irons, People’s History of the Supreme Court; Howard Zinn, A People’s History of the United States (New York: Harper & Row, 1980); and Zinn, Disobedience and Democracy.
49. Wenshu Lee and Philip C. Wander, “On Discursive Amnesia: Reinventing the Possibilities for Democracy Through Discursive Amnesty,” in Michael Salvador and Patricia M. Sias, eds., The Public Voice In a Democracy at Risk (Westport, CT: Praeger, 1998), 164.
50. Nationally, in 2002, African Americans earned 60% of white income. In some cities, the number drops by an additional 15%. In addition, Rita Maran reports that “Blacks, Latinos, and American Indians have a mortality rate two to three times that of whites” and that “[s]ome 24% of African Americans, 23% of Hispanics, 10.7% of Asians, and 8.2% of whites live below the U.S. poverty level.” See “A Report From the United nations World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, Durban, South Africa, 2001,” Social Justice 29 (2002), 179.
51. See Bowers v. DeVito, 686 F.2d 616 (1982); articulating the view that the Constitution is a “charter of negative liberties, it tells states to let people alone” (618).
52.”Are Human Rights Universal?” World Policy Journal 16 (2000), 5.
53. For example, in many Latin American nations, such as Brazil and Honduras, death squads have targeted street children-who are increasingly viewed as social inconveniences-for extermination. These death squads are “assisted by both the active and passive complicity of the government.” In Honduras alone, there were approximately 1,500 documented murders of street children between 1998 and 2002. Street children are labeled as “vermin” and “troublemakers” by security and business elites who, along with the national media, blame the street children “for everything from violent crime to driving away foreign investment and tourism.” This information comes from a December 17, 2002 story on the website of the New York-based Covenant House (an independent NGO dedicated to the rehabilitation and defense of street children in South and Central America).
54. Ibid. In Nietzsche’s terms, property can be made more moral once we learn to “regard those who possess too much as being as great a danger to society as those who possess nothing.” Human, All Too Human (Cambridge University Press, 1996), 382.
55. “America the Undemocratic,” 40.