“Mythologies of State and Monopoly Power” by Michael Tigar, 2018
If you’ve been wary of the ‘justice’ system in the U.S., so
is the author. And he’s a lawyer! Tigar
is a criminal defense and human rights attorney and also professor emeritus at
Duke and American University. This book concerns 5 areas of U.S. law: civil rights, criminal behavior, speech, labor
activity and international crime. His
focus is on how laws reflect backward ‘mythologies’ – borrowing this concept
from Roland Barthes – in every area. You
might also call them stereotypes, clichés, conspiracies, capitalist ‘realism’
or lies. He maintains that lawyers should deal with the facts, not mainly
procedure, precedent or assumptions. He doesn’t address the embedded class and
economic basis for law in the U.S. which colors all these issues, though he’s
aware of it. His angle is a rights’
argument only, based on specific cases, obvious history and judicial writings,
first inspired by Clarence Darrow.
Let’s look at the 5 areas of concern according to
Tigar. What is most interesting is that
unlike the liberal myth that everything is always getting better, Tigar shows
that U.S. law goes backwards in some areas and in others it never changes. Could
it be that the economic system requires this kind of stability or retrogression?
MYTH 1
The first area is the role of racism as a mythological
understanding which substitutes for actual knowledge. It’s a flawed shorthand
for actual thinking. In his time as a criminal
defense attorney he identifies these subtle versions of racist ‘dog whistles’
used in the judicial system: 1) Ethnic
Fear – Japanese Internment; 2) Separate But Equal; 3) Private property rights;
4) Free Association; 5) Neighborhood Schools; 6) Racism is Over: 7) Stand Your
Ground; 8) “To Protect and Serve” police slogan; 9) Honoring Confederate History. All of these attitudes are or have been used
as legal arguments to protect racist practices.
I’ll get back to the one on ‘private property’ because it unsurprisingly
pops up regularly.
MYTH 2
Mass incarceration is a form of social control exercised
over people of more color, but also on the working-class as a whole. The death penalty is justified by the courts
because of the alleged vast array of ‘rights’ given to defendants. Tigar eviscerates these rights as they are put
into practice. As he says, “Law is not what it says, but what it does.”
Myths are: 1) A fair trial; 2) Appointed
counsel; 3) Plea bargaining; 4) the existence of bail.
A great part of #2 are defense counsel appointees who are
incompetent, indifferent, overworked or sleeping. #3, plea deals, are notorious for basically
forcing a defendant to agree, even though they have to swear they were not
coerced in any way. Who can ignore the
heavy sentences hanging over them if convicted?
The ability to hire a qualified attorney, i.e. having money or property -
runs through the whole issue of indigent defendants. As Tigar notes, 3% of law
school grads go into public-interest law and every state spends millions more
on the incarceration system than the pittance on public defenders.
In discussing criminal myths, he references the book L’Étranger (The Stranger) by Albert Camus.
Instead of the standard view that this book is some kind of
‘existential’ look at a ‘deep,’ indifferent loner, it is about a Frenchman
named Meursault who kills an unarmed Algerian and shows no remorse. This is really based on his racism, not some
grand philosophy. Nor is it the behavior
of a so-called ‘stranger.’ This book was
another reactionary misstep by Camus. You
will note Tigar uses literary references when applicable.
MYTH 3
Tigar tracks free speech fights concerning the ‘marketplace
of ideas.’ If you spend a whole second
equating the idea of the ‘free market’ with this ‘marketplace’ it is obvious
oligopoly, monopoly and wealth rule both.
The Supreme Court has gone back and forth on this issue and has now
refuted the ‘fairness doctrine,’ given non-human corporations free speech
rights; sold the public airwaves for a pittance; treat information as property
and forbid political activity in ‘private’ spaces like socially-used malls. The latter is significant. At one time
because of their quasi-public nature, it was allowed but now property rights
rule. This relates to workplaces and factories
too, as Marxists have always claimed that workplaces, while ‘privately owned,’
are actually socially dominated by those who work there. This opens the door to sit-downs and
occupations of work sites…which in the U.S. are also illegal.
In the U.K. Burger King won a judgement for libel against
accurate claims by food and environmental campaigners. Greenpeace has been sued for ‘restraint of
trade’ for their environmentalist speech.
As can be seen private property is a keystone concept of capitalist laws
as represented by our Constitution, case law and courts, even related to speech.
MYTH 4
Tigar looks at lawsuits involving the CAFO giant Smithfield
Foods, which used a RICO claim to sue the UFCW for attempting to organize their
slaughter houses in North Carolina, mostly worked by new immigrants. Corporate
RICO and SLAPP charges against activists and unions like this, while eventually
denied, echo the 17th and 18th century claims that trade
unions or any labor ‘combination’ in British law was illegal because it damaged trade and profits. The real
purpose is to delay and bankrupt opponents with legal fees. In the same vein the
Sherman Act was used against rail strikers in the 1890s for ‘restraint of
trade.’ In the 1920s court injunctions
were issued more than a thousand times against labor action, though that was
blunted in the 1930s with the Norris-LaGuardia and Wagner acts. Yet recent lawsuits were filed against
corporate campaigns run by SEIU against CINTAS laundries, alleging a similar
claim, ‘extortion.’ One hospital chain,
Prime Healthcare, sued Kaiser Permanente and the SEIU for its partly
union-friendly policies as damaging to its
profits, using RICO again. RICO is the
new legal iteration about labor ‘conspiracies,’ carrying on the same legal
logic in the late 1700s in England.
MYTH 5
Tigar takes on legal cases with international reach against
Shell Oil in Nigeria and Mercedes Benz in Argentina. In the first case in 2013 Shell used thugs to
attack and kill opponents of their polluting oil operations along the Nigerian
coast. In the latter case, Mercedes Benz
fingered auto union activists for death by the Argentine junta and its
paramilitaries in the 1970s-‘80s.
Several laws, like the Alien Torts Claims Act and the Due Process clause
of the Constitution, narrowly specify what can be an international cause of
action in a U.S. court. The Supreme
Court has ruled that the U.S. ‘does not
rule the world,’ thus avoiding international lawsuits about corporations that
are domiciled or do business in the U.S. Liberals like Justice Ginsburg chimed in with
the same logic.
Given society is now a world economy and the U.S. military spans
national borders too, the increasing obsolescence of this form of
venue-blocking legalism is apparent.
Internationalism is the order of the day, not nationalism, even on the
legal front. Tigar lists his legal objections.
Regarding the property issue central to capital, socialists
are not intent on privatizing toothbrushes, beds, clothing or small assets like
houses or cars, etc. as the stereotype goes.
It relates to large property, to large capitalist and landlord
property. The myth of property rights as
prevailing over everything is the heart of libertarian and capitalist thinking
and law and can be seen in these 5 areas, even though each only deals with
‘rights.’ The social reality of capitalist
private property reflects the U.S. economic system, something upon which every
legal system, even in the past, has been based.
Large property has the most rights, period.
This short book is a good introduction to legal issues
surrounding real freedom in the U.S., i.e. freedom for the majority of people,
not the capitalists, bankers and large landowners. Not sure if the word ‘myth’ is appropriate
for everything here, but certainly it refers to basic, sometimes unsaid,
assumptions embedded in the law.
For prior blogspot reviews on this subject, use blog search
box in the upper left, using these terms to investigate our 17 year archive: “On the Line” (Pitkin); “The Cult of the
Constitution,” “The Prosecution of Professor Chandler Davis,” “Professional
Degrees in Recent Democratic Party Politics,” “With Liberty and Justice for
Some” (Greenwald); “Legal Logic Behind Raids,” “The Trial Before the Trial,” “Painkiller,”
“Junk Science and the Criminal Justice System,” “The Appeal” (Grisham); “Dirty
Waters,” “Missoula – Rape and Justice in a College Town” (Krakauer), “Goliath,”
“Slave States – the Practice of Kafala,” “The Making of the English Working
Class” (Thompson).
And I bought it at May Day Books!
Red Frog / September 18, 2024
No comments:
Post a Comment