                           20050626.00

                     Law, Crime, Justice (1)

     The question: What is law? is of importance not only to
legislators, prosecuting attorneys, judges, and lawyers, is of
significance not only to professors who presume to provide
definitive, or at least preliminary answers to such questions,
but is of importance to individuals like myself, who find it
uncongenial, impractical and uneconomic simply to endorse what
appears to be a public consensus on this question and to
subscribe to the conventional wisdom which purports to provide
the answwer.

     When I grew up in the American South, I became aware of how
justice worked.  If your house was burglarized, if you were
robbed of your wallet, if your were assaulted by a stranger, or
by an acquaintance, or by a friend, or by a member of your
immediate family, you called the sheriff.  And when the sheriff
arrived, the neighbors watching the scene said: "Here comes the
law," because they had no other concept of law than the
person of the sheriff.  The law was what the sheriff considered
the right thing to do; and the sheriff, of course considered
the right thing to do what the neighbors expected of him. 
Consequently, individuals of whom the sheriff did not approve,
whom he thought undesirable, such as Northerners, Catholics,
Jews, Blacks, and, heaven help them, homosexuals, incurred
some risk in summoning the sheriff, the risk of being arrested
at minimum for disturbing the peace, and if the complainant
were unfortunate, for whatever more serious offence the
sheriff's intuition told him that his constituents longed to
see punished, to the extent that the charge would pass muster
with a sympathetic circuit court judge.

     The smaller, the more isolated and the more homogeneous
the community, the more direct and immediate the effect of
public sentiment. The centrifugal forces of individuation
that erode family solidarity similarly attenuate community
sentiment. The larger the community, the more diverse its
members, the more remote becomes the unanimity on which the
sheriff might rely, until in the urban, and ultimately in the
cosmopolitan setting, the tolerance of individual peculiarities
reached a maximum. As has often been noted: "Stadtluft macht
frei."

     Law is invented to mediate between the intuitions of
diverse indiviuals, by linking them into a verbal formula
that is purported to have an identical meaning for all who
are affected by it. That idealization has obvious limits:
the same diversity that required to be compromised by verbal
statement now expresses itself in diverse, and often
contradictory interpretations of these formulas. At the same
time, the very process of internalizing the formulas, the
study of law, serves to modify the conceptualizations, the
thoughts and the feelings of the diverse participants so that
they become more uniform in substance and in function. Such
is the law whose uniformity constitutes the foundation and
the framework of society.

     The law, abstractly, is the sum of all that society deems
permissible.  And all that is not permissible is against the
law and is considered a crime. The definition of crime is the
manner in which a society stipulates not only what is prohibited,
but also what is acceptable behavior. Thus, from its legal code,
a society's ethical standards may be inferred. For me, the issue
of what is legal and what is illegal not only concerns the
question of what I may or may not do; but of equal, and almost
always of greater importance: the question of what my fellow
human beings are permitted to do to me, both under color of and
with the permission of the law.

     Unfortunately it is not an uncommon experience to feel
strongly that a certain action should be prevented or punished as
a matter of law, only to realize that the public officials
responsible for enforcing the law refuse to do so, or worse even,
that the conduct so objectionable to me, is officially
sanctioned.  Then I feel alienated, feel cut off from the society
of which I am willingly or otherwise, a part and on which I
depend for survival.  I strongly suspect that I am not alone.

     More than a little frightening in this context is the
presumption of legal idealists that the law, even as it is
embodied in and represented by the red-neck sheriff, should be
the expression of universal norms, however veiled and obscure
they might seem in any given situation.  This, of course, is the
import of Immanuel Kant's ethics as articulated in his Metaphysik
der Sitten and in his Kritik der praktischen Vernunft.  I find it
remarkable that a doctrine so patently contrary to fact and
experience should achieve any credence at all, but at the same
time, I remember and must confess, how impressed I was with the
logical elegance of his argument, and how many years of
disappointment and frustration were required to convince me of
the futility, if not of the absurdity, the disingenuousness, the
dishonesty of it all.

     I think I see now quite clearly, that law, being a written
text, is unavoidably afflicted with all the uncertainties that
beset written communication, that the need in some way to act in
the face of these uncertainties has spawned and continues to
spawn the legal profession. Which is not to imply that the lawyer
should intend to remedy, or should even recognize the antinomy of
the law. The lawyer mediates between the naive expectations of
his otherwise helpless client, and the incongruities generated by
an unavoidably idealistic text in an inescapably pragmatic world.
The dialectic between the ideal of legality and the exigencies of
reality obtains on all levels: from the implicit santioning by
the Supreme Court of arbitrary detention and torture, not to
speak of the determination of the executive to institute them; to
the incongruity of speed limit laws which are unenforced and
unenforcible: the 55 mile an hour speed limit on Route 128, which
if applied at 4:30 p.m. might precipitate traffic paralysis;
while if enforced at 4:30 a.m. would provide a welcome
enhancement of the revenue flow of the State Police.  Of course
all government officers are mandated by law and by their oaths to
enforce _all_ laws, which is an impossible task.  But there is no
provision for feasibility, so in the end, - or more accurately,
at the inception, those who enforce the law must break it. Those
who enforce, apply or declare the law break it when they take
their oath to do because they are required to swear to do the
impossible, unless it be that an oath to do the impossible is
meaningless and that a meaningless oath is not susceptible to
being broken.

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