WHY A NATION OF LAWS IS NOT NECESSARILY BETTER THAN A NATION OF MEN
WHY A NATION OF LAWS IS NOT NECESSARILY BETTER THAN A NATION OF MEN
By
David Gottfried
People often say that America is a good country because it is a nation of Laws, not men. Supposedly, in nations run by men, selfish autocrats do as they want, and their avarice and evil are not restrained by Law.
I propose that nations of Laws are often just as bad, and that their leaders have as great a propensity to lie, and that nations of Laws are essentially worse than nations of men because the egotism of their leaders is coupled with the unctuous pretense of fealty to the law. Their alleged submission to legal niceties makes the people slumber and accept all manner of abuses. At least in an authoritarian regime, a certain measure of honesty prevails: a leader who is an SOB doesn’t deny being an SOB.
I first had an inkling of this in the year 2000, when the Congress of the United States affirmed and certified that George Bush had won the election he had really lost. Several Congressmen, every one of whom was a congressman of color, protested the Bush victory because of election irregularities. However, all the objections were rejected because none of the objections were supported by a single United States Senator.
When Congresswoman Maxine Waters tried to raise objections, and was asked if a Senator supported her protest, she tartly said, “I don’t care if a Senator doesn’t support me.” Al Gore, who was hearing and rejecting every objection to Bush’s victory, replied, “The rules do care.”
At the time, the Senate erupted into laughter at Al Gore’s seemingly adept put down of Maxine’s remark. But his comment lingered in my mind.
He said that the rules care. However, rules are inanimate phenomena. They are not alive. They cannot care one whit. Ergo, when someone says the law cares, one really is saying I care, or I wish to enforce this biased and cruel policy so I will exonerate myself of any responsibility and say that the rules or the law mandated a particular result.
When one says that a particular result is mandated by the law and not because of one’s judgment or biases, it is akin to Geraldine (A drag character played by Flip Wilson, who had a very funny television program in the early 1970’s) trying to be excused for spending so much money on a dress because “The devil made me do it.”
There are innumerable instances of people imposing cruel results and then innocently claiming that they did not want to be so cruel; the law compelled the cruel result. One of the most egregious and grotesque examples of Legal Lying was conveyed to me in a case book on Property Law. Sample this instance of severe legal sadism:
An apartment building in Massachusetts burned down. The tenants were now, obviously, homeless. Nevertheless, the landlord sued the homeless tenants for rent and the landlord won. (The case dates bank to the robber baron days.) The Court ruled that the law compelled this harsh result by inviting us to take a trip down memory lane, to feudal England. In feudal England, tenants rented land, for the purpose of farming, from lords and other assorted aristocratic bastards. A tenant’s obligation to pay rent to his lord was almost absolute and could only be dispensed with if the land were gone. (For example, if there were an earthquake, the land might be reduced in size and the rental obligation might be reduced.) If there were a shed on the tenant’s land, and it burnt down, the serf would still have to pay rent because he could still farm. The Court applied this logic to residential tenants in the city of Boston notwithstanding the absence of agriculture in an urban slum because this is what the law mandated. But I ask you: To what extent did the Court rule the way it did because the tenants were Irish Catholics and the landlord, and the Court which worked for the landlord, were imperious, protestants of English origin.
Of course, the law has a swift retort: The law compels that the homeless tenants pay rent not because of bigotry against the Irish, or against poor people in general, but because of the doctrine of stare decisis, a legal doctrine that says that a case that is decided today must be decided in the same way as a similar case that was decided a century ago, or eight centuries ago in feudal England. To me this always sounded like the equivalent of saying that since people who got the black plague in the middle ages often died they must often die today – and since streptomycin is a drug that kills yersinia pestis, the organism that caused the black plague, we better not use it because we must all bow down to the bloody precedents of the Middle Ages.
I was told, in law school, that we adhere to the doctrine of stare decisis to give the law and the state stability. After all, if one were punished for aiding a fugitive slave in 1820, one should be punished for aiding a fugitive slave in a subsequent year so one would know what to expect and would learn to keep one’s sensitivity and philanthropic impulses under wraps.
However, I recall that the preamble to the United States Constitution states that our constitution has been written “in order to form a more perfect union.”
I am sure that the drafters of the United States Constitution did not believe that the Constitution they had drafted had, in one fell swoop, created a more perfect union. They were men who were far too aware of human frailties to believe that they were capable of creating a document which would magically make for a perfect union. Their construction of the American government -- in such a way that the presidency would be encumbered by the Congress, the Congress would lay prostrate before presidential depredations and the Courts could derail every officers’ actions -- proves that the founders believed that man was weak or sinful and had to weighted down by peers sniping at his heels.
Since they believed they could not instantaneously bequeath a more perfect union and that the attainment of a more perfect union came about through continuous change, evolutionary or revolutionary, they could not have believed that the Law, as it existed after their constitution was ratified, would have been wholly satisfactory.
Hence, the founders of our nation must have harbored a distinct unease toward law which never changes. If the law never changes, we are not able to proceed to create a more perfect union. Therefore, a healthy skepticism toward the unchanging law invariably entails a healthy skepticism toward any law on the books unless one has had a hand in creating the law.
This healthy skepticism toward the law compels us to have the courage to unsheathe our will and to do that which we believe is right. In other words, to be men and not mere puppets of the cold dead letters of the law.