Upon the discussion of illegal immigration, specifically people from one nation working in another state while being undocumented, a common argument against immigrants is that the act is itself illegal. Regardless of the reasons why one would chose to leave their home and their lives to travel to a new land, the issue of legality as an argument against such individuals is a funny one. There are places in this world were it is illegal for women to show their faces in public. In many developed countries, there were times when it was legal to own slaves, or illegal for a person from one race to sit at the same table or drink from the same water fountain of someone from another race. It was once illegal to divorce and in many places, it is still illegal to admit to being a homosexual. Although both realms are somewhat subjective, it can be argued that legality does not necessarily equivocate with what is morally right.
The idea of a good legal system being an unwavering force to provide for the good of a society begins to break down when put under the scientific microscope. A legal system is not a science. Not only are there no reproducible results, but it is clear the results change in almost identical situations depending on the interpretations of judges, the understanding of juries and the persuasive power of lawyers. Even if it were possible to reduce law to a pure science, the application of verdicts based purely on the violation, not taking into account the specifics of the situation and the individuals, could lead to even greater injustices.
I had a classmate, while I was an undergraduate student, who did a lot of work with political campaigns and law offices. He told me once about how a lot of statues are written so they don’t restate an entire law, but instead mention which parts of prior laws they change. The prior article may also simply be an addendum to previous laws. He wanted to work on a natural language processor that could take all these article and compress them down into a single current version of the law.
It seemed like a nobel idea, and although complicated, still a fairly straightforward one. But unlike the strict grammars in the languages of Math, Physics or Computer Science, our legal text is written in natural language. Human language is more of an art than a science. It is subject to vast amount of interpretations. It cannot be simplified in the way that a formula or equation can. Showing that two statements written in a natural language are equal tends to break down after the most simple of tautologies.
“And those who write laws, they can’t recite them And those of us who just fight laws, we live and die them” -Michael Franti1
In 1954, in the case of Brown vs the Board of education, The Supreme Court of the United States decided that establishing separate public schools for black and white children was unconstitutional. James Kilpatrick argued that the decision was “Good justice. Bad law,” referring that the decision was morally right, but that the decision itself was not based on existing laws. This bench legislation “created a dramatic new constitution right2.”
In the days of King Henry VIII, the King sought legal grounds in the ecclesiastical courts to leave his wife after the Pope denied his request for a divorce. The arguments were based around what is declared in God’s Law, the Bible and the doctrine of the Church. The debate over religious doctrine — essentially stories written by human beings about the supernatural realm — seem almost comical and ridiculous today. They are often touted as the dark ages of religious theocracy and completely inferior by today’s states with secular law.
But is the legal system of a secular world really so different today? The Roman Catholic church was a symbol of power, control and authority. Their influence, corruption and money places their modern equivalents to being large multinational corporations. The Supreme Court of the United States recently decided in a 5-to-4 ruling in Florence v. Board of Chosen Freeholders that people can be stripped searched when they are arrested and taken to jail under any circumstances, even if they have committed no violent crimes and there is no reason to assume they would be concealing anything in a body cavity. The same court ruled in the Citizens United case that corporations were people and should be given the same rights to free speech, allowing the gateway to be opened for large corporates to supply political campaigns with an unlimited flow of money.
“When the President does it, that means that it is not illegal.” -Richard Nixson3
Legal systems are social constructions. They are, in fact, belief systems. Despite how high income countries state their secular laws protect individual freedoms by not being based on the relics of religious doctrines, the fact remains that legal text is not a science. There are no reproducible formulas that can be put into a machine and lead to the same results. Instead the fate of people in a free legal society are determined by the current interpretations of a judge or a jury, and quite possibly how they feel that particular day or what they ate for breakfast. In more totalitarian governments, the laws are simply reinterpreted like religious text: justifying whatever the current ruling party decrees. Legal text is as interpretative as a painting or religious dogma. If something is considered to be legal, it doesn’t necessarily make it morally right. And having something be illegal doesn’t necessarily means the act is harmful or infringes on the personal freedoms of others.
“No man is above the law and no man is below it: nor do we ask any man’s permission when we ask him to obey it.” -Theodore Roosevelt4
Legal systems depend on convincing enough of the population they are for the betterment of society. States must convince people to become officers, judges and jailers in order to enforce those systems. Just like religious doctrine, it changes to fit the progression of the times, even though many will claim it doesn’t. Constitutions are living documents that are continually reinterpreted, even though originalists claim they are unwavering foundations. Legal texts are self referencing documents, only referring to other legal texts to provide their power; not unlike the Quran or the Bible. The belief in blind justice for some is unquestionable as it the faith of a religious individual. When everything is deconstructed, legal systems have, and always will be, socially constructed institutions.
1 Time to Go Home from the album Yell Fire! Michael Franti and Spearhead. Liberation Records. 2006.
2 Brown vs Board: Good justice, bad law. Kilpatrick. The Free Lance-Star – May 12, 1979.
3 The New York Times (20 May 1977), p. A16
4 Theodore Roosevelt. BrainyQuote.com, Xplore Inc, 2012, accessed May 14, 2012.