In times like these, we need to be very clear about what laws are — and are not.
In 1774, John Adams wrote to his wife, Abigail: “We live, my dear soul, in an age of trial. What will be the consequence, I know not.”
It took just over 200 years for history to deliver an answer. “We are a nation of laws, and a jury has spoken,” said President Obama on July 14th, 2013. “I now ask every American to respect the call for calm reflection from two parents who lost their young son.”
The Martin-Zimmerman trial was the sort of controversial thing that everyone had a strong opinion about, so there were going to be bitter disappointments regardless of the result. In that regard, I agree with President Obama: instead of verbal venom, breaking windows, and fingerpointing, we should take a moment of calm reflection.
We should honestly ask ourselves, what does it mean that we’re a “nation of laws”?
The worst thing to do would be to take the statement as what it tries to be: moral high ground. What are laws, anyway? Are they like sausages, better not to see them made (as Bismark is said to have remarked)? Are they like spiderwebs, catching small flies but letting bigger wasps and hornets get through (Swift)?
I have my own definition: perhaps laws are useful but arbitrary rules, understood through semantics, liable to change, and upheld by the threat of violence.
But I get ahead of myself…
First and foremost: laws are not fished out of a fountain of wisdom.
As Congress is fond of reminding us, laws are made by men (and women). These men are elected representatives of the American people, but they are also fallible and emotional men. They interpret and try to make sense of our public interests, but also take into account their very clear private interests.
Laws are not made of stone.
These aren’t the ten commandments: laws get renewed, laws get overturned. If we don’t like our elected representatives, we can elect other people and hope they write new laws. Sometimes, like in California, we get to vote on laws directly.
Laws are a product of our time.
Nowhere is this clearer than in the laws that concern race, gender, and minority groups. What may have been reasonable one hundred years ago, may no longer be so.
Laws are dependent on geography.
International laws are rarely upheld outside of the Hague. American laws end at American shores. Even within states, what is legal in one state may be illegal in another. There are different state laws and federal laws. Sometimes these are minor variations — can you make a right turn at a red light? — and sometimes these are major: Washington state’s drug laws are different from its neighbors, and different still from federal laws.
Laws can be used to liberate, and they can be used to oppress.
Certain laws forbid you from doing things. Other laws prevent people from stopping you. As Isaiah Berlin argued, there are two concepts of liberty. “Negative liberty” is the removal of obstacles in our way. “Positive liberty” is the possibility for us to do something. In oppressive countries, laws are used to prevent people from doing things; in liberal-democratic countries, laws are used to try to ensure equality and freedom, and prevent the abuse of power for all.
Laws are linguistic constructions, and are interpreted as such.
Laws are made of words, and we argue about what those words mean. Depending on how we define certain words, the law changes. Court cases can hang on that: President Clinton argued over the meaning of the word “is”; the Affordable Care Act’s ‘Individual Mandate’ was rejected as part of the commerce clause, but accepted as valid because of federal taxation power. In the Martin-Zimmerman trial, a sidewalk became a deadly weapon. There is the “spirit of the law,” and then there is the “letter of the law.”
The Constitution is not sacred, though we like to pretend it is.
The constitution has been amended 27 times. One of those amendments — the 21st — repealed a previous amendment (the prohibition of alcohol). The last ratified amendment was added in 1992. Some judges like to argue about whether we should interpret the constitution literally, while others suggest that it is ‘alive’ and should be reinterpreted for the time we live in. Supreme Courts have reversed precedents set by former courts, and have created new precedents that may not be respected in the future, for a variety of reasons.
Perhaps in the future, we may ratify an amendment regarding marriage equality, just as we did with women’s rights to vote in 1919. Perhaps we may ratify an amendment to repeal the right to form militias, and consequentially repeal gun rights. There are still laws unwritten for situations that have not come to pass. What is clear is that though the constitution is the supreme law of the land, it is but another set of laws, made by men, subject to be changed and subject to interpretation.
Laws are upheld through the threat of violence (in its many forms).
We obey laws because we may get fined, because we may get sentenced to community service or prison, or because we may get attacked or executed. A violation that goes unpunished or a law that is ignored is, for all extents and purposes, not valid. Movements of civil disobedience use this logic to get laws changed.
We are not judged by the law, but by other men and women.
Lawyers try to present their cases as strongly as possible. Information is sometimes imperfect, or withheld. We are tried by juries who interpret these arguments and in practice also interpret the laws. These juries are composed of people like you and me: they have biases, they lie, they have personal interests, they can be convinced of things, they are sometimes rational and sometimes emotional people. We judge and sometimes prejudge each other, though we’re not supposed to. Sometimes jurors make decisions arbitrarily. The selection of juries is imperfect as well, as the one of the all-female Martin-Zimmerman trial jurors has shown.
We are not all equal in the eyes of the law.
Equality is finicky thing. Foreigners are subject to certain American laws, but not to others. Repeat offenders are treated differently than first-time law-breakers. Prisoners lose certain rights, as do people enlisted in the armed forces. And lest we forget, corporations are people too and are subject to the same laws… when it is convenient.
The rule of law is important, but...
The rule of law is one of the key things separating men from beasts. Laws can prevent mob rule and prevent a survival of the fittest in society. Codified with the Magna Carta in the fourteenth century, the rule of law is an imperfect but passable check on arbitrary authority. Yet to follow laws blindly is to invite greater injustices. As Hannah Arendt has argued, many great injustices of history were the product not of one deranged man, but of many ordinary people who accept the rules of the state as-is, and view the actions that they carry out as normal. “Just following orders!”
Most importantly, the implementation of law is not the implementation of justice.
It if were, we wouldn’t have mass incarceration of black people in this country, California’s three-strikes laws would be repealed, and banks would be forced to account for their actions. We strive to make laws just, but at the end of the day, the implementation of a law is nothing more than the implementation of a fallible rule and a sometimes-arbitrary punishment.
We are human. We are fallible. We try to create rules for a better world and for safer, more just lives, but we don’t always agree about what those rules should be. More often, we don’t agree what that better world would look like.
American democracy was once labeled as the world’s grandest experiment, and we would be wise to remember that the experiment is ongoing.
Laws are the structural support of democratic institutions. To say that we are a “nation of laws” is to admit the obvious: we are a nation of men, sometimes prone to error and sometimes privy to insight, trying to make order out of chaos. Our failures can be as spectacular as our successes, but in this great democratic experiment, we can always change things. Indeed, it is our responsibility as citizens to reflect, and to react.
Originally posted on Medium, July 27, 2013: https://medium.com/@sharedphysics/we-live-in-a-nation-of-men-prone-to-error-d8b8e52ac25e