Tuesday, November 22, 2011

Rule By Law

“If large numbers of people believe in freedom of speech, there will be freedom of speech even if the law forbids it. But if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them.” -George Orwell

"We are a nation of laws. They [insert China, Libya, Syria, or whatever tyrannical flavor of the week you prefer] do no respect the rule of law." -Some politician or pundit on television at any given moment

There is, to put it bluntly, no such thing as rule of law. It is merely another farce in a long line of state propaganda designed to keep the masses soothed and docile. If you don't believe me chances are you've never tested the fringes of these laws or - even more to the point - never lived on the fringes of our "nation of laws." Tell a young black man in Washington Heights about his constitutional right to not submit to unlawful search and seizure and see if he doesn't stifle a laugh before telling you about stop and frisk procedures.

Following the OWS raid last Tuesday, we were informed at Duarte Square that we had actually won a court injunction and were legally permitted to reenter Zuccotti Park with our tents, structures, and other belongings. But, as our legal representative at the National Lawyers Guild was quick to remind us, "There is the legal world and then there is the real world." I suppose I've always known this, but before seeing the NYPD and Brookfield's private contract security, King Securities, illegally holding that park and preventing us from reentry in direct and knowing contempt of court, I never thought it so transparent. That court order was worth exactly no more than the paper it was printed on. The rule of law is only as meaningful as the muscle that enforces it. Regardless of whether the NYPD had a legal right to remove tents and structures earlier that morning (to say nothing of the way in which they went about tearing down those structures), they had absolutely zero legal ground on which to evict people from a space open to the public 24 hours a day, 7 days a week. The law is clear that Brookfield has to get permission from the city's planning commission to temporarily close the park in which case ample time should have been given to the occupiers to clear the space.

The state will conveniently come down on whatever powerless individuals or factions they find disruptive with the "full force of the law," but when these same laws are flagrantly violated by the powerful, the state will just as conveniently ignore them. Glenn Greenwald has written wonderfully and exhaustively on this topic in his new book (With Liberty and Justice For Some), but I would disagree with his ultimate assessment, at least semantically. It's not really that there's a two-tiered justice system, because that suggests there is an element of  proper process somewhere in the system or that an ultimately noble structure has been subverted by powerful people. It's really just the opposite, that this whole legal system is a facade - window dressing for the usual exertion of authority that's existed for thousands of years. On occasion this facade will crack a bit and genuine social justice prevails in the courts. It is then that we are reminded how irrelevant this whole process is as any decree is enforced or not enforced by whomever exerts the most power. Someone will ultimately have to physically put handcuffs on someone else and a legal document does not make that happen. Enforcement (or alternatively non-enforcement) can be literal power, as in the case with the NYPD. It can also be financial or bureaucratic power, as we see in the utter lack of conviction on any criminal behavior on Wall Street.

Though it may not be apparent, I find all of this tremendously positive and liberating. Laws are only as good as the underlying moral or pragmatic impulse they reflect. Many devastating things have been and continue to be perfectly lawful, while just as many perfectly fine (or at least innocuous) things have been and continue to be illegal. Which brings me back to the Orwell quote - the only resource the powerless have against the powerful are our numbers. Where our leaders like to smugly interpret our relative progression as a "nation of laws," it is really only the natural consequence of a population that will openly defy a more regressive, inwardly violent state.

The flip side of what happened in the raid on November 15 was roughly a month earlier, at the botched eviction attempt. Brookfield announced a "cleaning" of the park that was rightfully interpreted as a pretense for eviction, giving us time to consolidate our resources. What must have been 2,000-3,000 of us packed the park that morning, and though we didn't realize it at the time, our critical mass was unarrestable and the "cleaning" was indefinitely postponed.

None of this is to say our society is without guidelines and structure, and certainly not to say that we shouldn't have such things. At OWS we have "Principles of Solidarity" as well as a "Good Neighbor Policy," documents unanimously consented upon, with a list of encouraged and prohibited behavior. But these is no formalized "enforcement," there's a Mediation Working Group and a "Security" Team that ultimately consists of people walking around and making sure everyone's "mellow" (Security's words, not mine). More significant is the communal pressure for individuals to not endanger others or the movement at large, and outside of the occasional drunk or mentally ill, it works extremely well - as these societal pressures tend to work well at large whether we're aware of it or not. Laws that we find silly and inconveniently are likely to be disobeyed when no one's looking (e.g., not coming to a full and complete stop at a stop sign at 3 am), but the concerns of your community tend to be better motivators even when there's little to no risk of being caught (e.g., recycling).

The Occupy movement remains an inconvenient minority. Over 3,000 have been persecuted even under the laws that ostensibly protect them. And maybe this is why so many of us resist "demands," because even if they were met they could only be enforced through our numbers. All we can do is grow to a number so large that no laws can contain us.

Update: As it coincidentally turns out, the brilliant Arthur Silber wrote on this same subject outside the context of OWS. For a denser, more eloquent version of what I've written, check it out here.

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