We are told we need the law. We need a million rules to ensure everyone has a fair shake, a level playing field we rely on as we move through life. But if you are lesbian or gay, the majority have recently passed laws giving people who prefer heterosexual coupling an advantage. The federal government has done nothing to come to this minorityâs assistance. These laws are just the latest in a long litany of discriminatory laws.
We are told we need the law to define culture, to give the boundaries of permissible behavior. Yet, do you think you are aware of every law you live under? In every jurisdiction, outdated laws remain on the books. You are likely to have broken some of them without even knowing. In fact, most new endeavors begin with consultation of a lawyer. Legal professionals research for hours to ensure their clients wonât inadvertently break some little known law. Many of these laws unduly invade our private lives to restrict trivial actions, like putting a window in a wall of your home, so the state or some industry can make money.
We are told without the law, our society would crumble into brutish chaos. To me, the image of John Pike, dressed like an SS officer, strutting around a circle of passive students shaking a can of pepper spray, meant to be used at distance on an advancing crowd, is the image of brutish chaos.
Or perhaps those words conjure up the image of an octogenarian pepper sprayed in the eyes for speaking out against a government that coddles the rich and abuses the poor.
Or the Berkley students night-sticked in the bread basket to discourage peaceful assembly:
Yet, surely our teachers and parents are right. Surely we need the rule of law to guide society. We need some rules.
Today we crawl outside one of our deepest and oldest mental boxes to consider the unthinkableâthat changes in the law cannot cure societyâs ills, because the law, itself, is part of the problem. Today we take a walk on the wild side in a lawless society.
Is It the Way They were Raised?
You are dining in your favorite restaurant. Next to you, a chair scrapes the floor as a man pushes away from his plate. Abruptly, he stands and your skin prickles. You sense something is wrong, but can't put your finger on it. Without making a sound, the man's hands travel to his throat. He opens his mouth in a grotesque gasping movement, but still no sound squeaks past his lips. What do you do? What do you expect others in the restaurant to do? Will you summon more people, experts in emergency medical care?
Now, in your restaurant, the couple at the table next to you drop a generous tip on the table before sauntering away commenting on the excellent meal and the fine service. The waitperson's back is turned, taking an order from another table. A woman appears from nowhere. She snatches the money, making a bee-line for the exit. What do you do? What do you think others will do? Do you call experts in criminal behavior?
Be honest. Was there a moment of hesitation making your choice in the second story? Would you weigh the possibilities before you acted? Why? The waitperson needs your help, just like the choking man does, if somewhat less urgently. Still, the medical emergency seems reflexive, while the criminal emergency challenges your moral fiber, doesn't it?
John Quinones of What Would You Do? made a career of challenging strangers with just that sort of moral question--situations that pit our sense of justice against our desire to mind our own business. In most scenarios, only the minority overcome the security of their private world to come to another's aid where an element of criminality exists. Exploitation of someone considered weaker, a child or a handicapped person, and medical emergencies seem to be the exception. Particularly with children, the reflexive urge to provide assistance still seems intact. Why this separation? What makes one a reflexive behavior, and the other require contemplation that fails to elicit assistance in most cases?
From an early age, we are taught to relinquish our responsibility for enforcement against criminal behavior to authority. Bully on the playground? Tell the teacher. Witness someone shoplifting? Whisper it to a security guard.
But teachers are ill-equipped to stop bullying. I was in my local dollar store the other day, and my husband commented on a sign threatening to prosecute all shoplifters. The owner curtly informed my husband the store lost $40,000 of merchandise last year to shoplifters. Remember, nothing in the store is worth more than a dollar. That is a lot of theft.
Wouldn't it be better if we taught children to gather together around a person who was being bullied? How would a bully behave if confronted with a unified playground shouting him/her down? What if you cried out when you saw the shoplifter and the people in the store reacted with reflexes as keen as those for a choking man?
The Enforcers: Tarnished Icons
Not only are we taught to relinquish responsibility for criminal behavior to authorities, we are taught to trust authority. If you are lost or in trouble, a police officer is one person on a short list of people your parents allow you to speak to, even though he is a stranger. The uniform, alone, allows that person into a privileged class with teachers, doctors and religious leaders. We allow peace officers into our lives without question in an emergency, turning decisions over to them because they are the experts.
We have lost confidence in our ability to assist others in day to day justice. We feel as though we don't have the skill or the authority to intervene. We aren't all health care professionals, but somehow we jump to help in a medical emergency. In a criminal emergency, our sense of community and our confidence in ourselves has been undermined.
But endowing a person with authority doesn't guarantee they will use their power responsibly.
Of late, I have come to question the role of law enforcement in our society. I have watched the police arrest thousands, whose crime is assembling for the purpose of political speech and redressing the government. I have watched them beat and pepper spray people who are peacefully sitting in protest.
These do not seem like the actions of someone I can trust. And I certainly don't want to call this person in an emergency.
The Law: A Little Less than Blind
When my husband discovered that shoulder length hair kept him warmer outside during Flagstaff's brutal winter, he also discovered he was suspected of criminal behavior for the first time in his life. It is unlikely that allowing his locks to grow caused him to have criminal thoughts.
Even when we all agree a law is a good law, such as those prohibiting murder, the enforcement of those laws is clearly unequal. The US imprisons more people per capita than any other nation. But you are much more likely to go to prison if your skin is darker, or you are economically disadvantaged. (See this link also.) Prisons are our largest and most costly social program. How can this be justice?
A petty thief steals a purse in an attempt to survive on the street, and gets life because it's his third strike. A huge corporation steals millions in tax dollars and gets a pass because corporate consultants lobby Congress to rewrite the law and make the theft legal. Another man commits armed robbery and shoots the person behind the register. The armed robber will get the death penalty. A corporation murders hundreds or thousands by dumping a toxin into the water supply and gets a slap on the wrist, a maximum fine mandated by law, calculated into the expense of doing business.
In our last Anti-Capitalist diary, GeminiJen discussed Citizens United. The Supreme Court ruled campaign donation could not be restrained because that unfairly restricted the free speech of the rich.
At the same time, the not-so-rich attempt to make their voices heard over the din created by so much money in the politicianâs coffers. Police arrested hundreds in New York during the Republican National Campaign in 2004. They roped off huge groups of people preparing to march, even arresting news reporters trying to cover the protest. The arrests were wholesale thrown out of court. Peaceful assembly for political speech and redress of government was still thought to be guaranteed by the Constitution at that time. Still, those arrests prevented people from exercising their First Amendment rights. They prevented unrest from showing up on your TV screen. Since then, preemptive arrests have become a tactic with every large protest in America. Now, just sitting in the wrong place with the wrong message can get you arrested, beaten and pepper sprayed.
It appears rules are only for the 99%. If there is no law preventing a behavior unapproved by the 1%, no bother, just get the police to enforced what the powerful want anyway. The police seem all too willing to cooperate with this mockery of our highest law, the Constitution.
That does not seem just to me, and probably not to you either.
Living a Lawless Life:
"That which is despicable to you, do not do to your fellow, this is the whole of the Torah. The rest is commentary."--Rabbi HillelIf tomorrow heroin were legal, would you start using? Me neither. And I do not normally consider whether something is against the law before I go through my day. For me, and most people, we already live a lawless life. The law and fear of the justice system is not what prevents me from harming others. My own sense of justice and the Golden Rule are sufficient. Most often, when I am prevented from doing something by law, it is not something most people think should be prevented--like adopting a dog without a collar from the street, or speaking out in public. (I've recently embarked on a life of crime by breaking both those laws.) The law prohibits me from taking positive actions and from being a good citizen more frequently than it prevents me from committing harm or destruction.
On the flip side, people who knowingly break the law are clearly not restrained by moral sensibility or the law. They may be restrained by the possibility of punishment but that does not stop them from breaking the law, only from doing it where they will be apprehended.
What if we gave up our fascination with rules? What would that look like? Chaos? Wholesale destruction?
A world without law, would not necessarily be a world without justice. Peace officers could still exist in such a world, but they might be less likely to cruise around looking for crime, and more likely to come when summoned. They would have discretion to detain a person, but only if harmful to themselves or others. For most instances, a bench warrant would be sufficient.
In a lawless system, a person could still accuse another of wrong doing. We don't actually need the law for that. Lawyers would still be necessary to aide the accuser and defendant in arguing their case before a jury. A judge would make sure the participants treated each other fairly.
In our current system, corporations look for ways to commit destructive acts under the law. They use the law as an aid for wrong-doing or pay to have the law changed to their advantage. A person harmed by a corporation has to navigate a mine field of law that has been orchestrated by the corporation to put the average person at a disadvantage.
In a lawless system, a person harmed by a corporation could still take the corporation to court. A system without laws or precedents would decide every case on its own merits. Instead of laws tying a jury's hands and barring real justice, each case would be decided on its own merits. Corporations could face the cold wrath of twelve people who sympathize with a human over a corporate "person." A jury could fine based on the amount of injury, but also based on the defendant's wealth and hubris.
Based on its finding that McDonald's had engaged in willful, reckless, malicious or wanton conduct, the jury then awarded $2.7 million in punitive damages; essential to the size of the award was the fact that at the time McDonald's made $1.35 million in coffee sales daily.In a lawless society, companies would not be able to squirm around the intent of the law with fancy foot work. They would, instead, have to consider "What would you do?" if you were on the jury. They would have to behave as though twelve average citizens were looking over their shoulder all the time. In other words, they would have to conduct themselves by the Golden Rule.
Since the purposes of awarding punitive damages are to punish the person or company doing the wrongful act and to discourage him and others from similar conduct in the future, the degree of punishment or deterrence resulting from a judgment is in proportion to the wealth of the guilty person.Punitive damages are supposed to be large enough to send a message to the wrongdoer; limited punitive awards when applied to wealthy corporations, means the signal they are designed to send will not be heard. The trial court refused to grant McDonald's a retrial, finding that its behavior was âcallous.â The judge, however, announced in open court a few days after the trial that he would reduce the punitive damages award to $480,000.Both sides appealed the decision.--Utah Justice Law
Think that is too complicated and uncertain? I would point out this system has already been tested. My profession operates under just such a rule. As a physician, I can be sued or my license revoked if I fail to "practice the standard of care." The "standard of care" is what a reasonable physician in my specialty would do in a similar circumstance. It is the Golden Rule of medicine. In essence, I have the "average physician" looking over my shoulder all the time. This vague edict forces me to keep my skills current and makes me a better doctor, even a 3 am when I don't really want to be a good doctor.
A lawless system would not stop at the courtroom, though.
We would have to be trained from a young age that the care of justice belongs to us all. We are all responsible for keeping our community safe.
When the thief takes the tip from the table, what if you jumped from your seat without even thinking and yelled, "Hey that person just took money that did not belong to them!" What if every person dining in the room rose to action on reflex? What if people blocked the door while others called for peace officers to issue a warrant for the thief to appear in a court?
Don't think people can spontaneously act together to restrain a powerful criminal? Or maybe you think people would take on a vigilantly mindset and escalate the violence. What if I showed you actual footage of people behaving just as I have described, orderly and with restraint to enforce justice and not the law.
Most of us have seen the encounter between the police and the students of UC Davis, California. Officer Pike pepper sprays the faces of students peacefully assembled in political free speech.
But that is the only part of the film most people have seen. Pike's behavior causes on-lookers to gather with the original Occupiers. The people make a mass decision that justice is not being served, even if the law allows such behavior by the police. The crowd spontaneously organizes and peacefully restrains and banishes the police. The community conquers the aggressor.
If a would be criminal had to worry about every set of eyes, not just a few brave souls or the eyes belonging to an authority, then would the crime be worth the risk? Would a criminal be so brazen, if he had to face twelve citizens who measured his actions by their own actions and their own work in society? Would a corporation be so brazen if they had to face twelve average people unlimited in their ability to punish?
The thief from your restaurant might be offered a choice by her warrant. She could accept the ruling of a judge or face a jury of twelve with unlimited powers. What would you decide, if you were on such a jury?
Twelve people could also have unlimited compassion. What if the thief was a mother who could not feed her child? What if the jury could require something of it's community, like aid for the mother? What if justice demanded a positive community act instead of a negative one? If we didn't house so many people in jail for laws many of us don't wish to enforce, couldn't we afford a more constructive social program for the poor? Could our current legal system behave is such a positive fashion?
It is high time we asked ourselves if the law has ceased to be be our servant and become our master. Has the law become an instrument of oppression wielded by the 1%? If so, perhaps it is time we simple give up our reliance on the law and move forward to a more enlightened and community involved approach.
Some Random Updates:
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The situation I discussed in my last post has gotten worse. The Catholic Church has gone so far as to rewritte the bylaws at my hospital to exclude sterilization for any medical or psychological reason. However, the editor of a local newspaper, The North Coast Journal, saw my story and is reprinting a version of it.
The charges against me for reciting the Constitution to a TSA officer were dropped. Apparently, it is still not illegal to quote the Constitution. Undaunted by minor things like what is legal or not legal, the TSA still charged me a $500 fine. They already live in a lawless society. Major corporate media outlets were offered the story but did not bother to contact me. The story was read on a conservative radio show TRX Radio. The editor of The North Coast Journal also liked the TSA stories (Here and Here) and she is helping me rewrite the post for the local publication.