Oct. 20, 2005

Law and Ordure

By Scott McLemee

The rule of law is to the routines of an ordinary, civilized existence roughly what oxygen is to long division. It’s not actually part of the equation, but you can’t actually make the calculations without it. Not that it guarantees justice. There may be lapses, omissions, misfires; and if the laws themselves are bad, then the rule of law can bring misery. And there’s more to life than regularity. Profound truths may by revealed by transgression, charismatic authority, and ecstatic excesses embodying the creative and destructive dimensions of poetry, mystery, and the sacred. (That said, I’d still rather live in a city with zoning ordinances.)

In The Law in Shambles — just published in the Prickly Paradigm series, distributed by the University of Chicago Press — Thomas Geoghegan offers an incisive criticism, from the left, of the idea that the expression “rule of law” is at all appropriate to the way we live now. His booklet is conversational, wide-ranging, and absolutely terrifying. It deserves a wide readership.

In saying that Geoghegan’s perspective comes “from the left,” I’ve made room for misunderstandings that should be cleared up right away. First of all, he’s not denouncing the whole concept of rule of law as a more or less streamlined way of carrying out the “golden rule” of capitalism, that he with the gold makes the rules. (That’s the paleo-Marxist position. Some of the International Socialist Organization activists on your campus might make this argument.) Nor is Geoghegan criticizing actually existing constitutional democracy (as we might call it) from the
vantage point of some “original position” of fairness, A Theory of Justice-style.

The author is a labor lawyer (though he has also been a fellow at the American Academy in Berlin). He’s arguing from his own court cases, and from perceived trends — not from first principles. He once loved the work of John Rawls, and the dream is not quite dead; but really, that was a long time ago. “Ever since he wrote that book,” Geoghegan says, “it’s as if someone with a voodoo doll put a hex on his whole approach.”

No, Geoghegan’s criticism is less abstract, more crunchy. It’s not just that respect for the awesome majesty of the law is now largely pro forma. Rather, in important regards the whole edifice has been gutted; before long, there won’t even be any nails holding the facade together.

The increasingly robust and strident contempt for the judiciary expressed by the American right is only part of it, if the most bewildering for anybody who remembers the old conservative motto of “law and order.” Now the emphasis is just on order, plain and simple. And not in the sense conveyed by Jack Webb’s no-nonsense demeanor on Dragnet. More like Joseph de Maistre’s rhapsody over the hangman’s role as cornerstone of civilization.

Which is worrisome, no doubt about it. But Geoghegan is more concerned about the low-key, day-to-day degradations of the rule of law. Consider, for example, the case of the rat turds.
Geoghegan worked on a brief on behalf of workers who had lost their jobs when a chicken-processing plant shut down — suing on their behalf under the Worker Adjustment and Retraining Notification (WARN) Act, which requires that a factory owner give employees 60 days notice that a plant will be shut down. To this, the chicken-processing guy had a ready answer: He had been shut down by the Department of Agriculture for health-code violations — an unforeseen contingency, he said.

He had an argument, says Geoghegan: “Yes, he may have done bad things, and let rats run wild, and let rats shit on the chicken meat. And yes, it is even true that the inspectors of the Department of Agriculture gave him ‘write-ups.’ But here is the issue: Was it reasonable for the owner to foresee that the DOA would enforce its own regulation?” After all, everybody
in the business knows that you get the write-up and pay the fine.

“That,” as Geoghegan says, “was his claim: DOA is more or less a joke. Under Bush I, then Clinton, and then Bush II, it’s gotten worse.... Now comes the ruling of the district judge, who is a liberal, a Clinton appointee: Yes, he says, it was unforeseeable. It was as if he took judicial notice that, as a matter of common knowledge, the government does not enforce the laws.... In other words, the application of the rule of law is the equivalent of an ‘act of God.’ Like a hurricane.”

Behind such incidents, the author sees at work an intricate play of mutually reinforcing tendencies. One is the weak and shrinking labor movement. Another is the long-term decline in voter turnout (thereby eroding any checks on wingnuttery that may exist within the ideological sphere). And then there is the systematic underfunding of enforcement for whatever regulations of the economic sphere are still on the books. The legal center of gravity of civil society shifts from contract (with its schedule of benefits and obligations) to tort (so that the only right that matters is the one to collect on damages).

Some of this is familiar, but ne’er so well expressed. Were there a serious movement in this country to challenge the present course of things, The Law in Shambles would be available in a grubby newsprint version selling for 10 cents, and distributed by the hundreds of thousands. Instead, you have to pay 10 bucks for it. This is not good.

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