Michael E. Tigar seeks to demythologise the law so we can resist it and change it, finds Dragan Plavšić
Reading between the lines is a skill we all need. Justice, freedom, equality and other fine ideals are invoked daily, but what do they really mean? In the abstract, it is impossible to say, for it is only when they are used in concrete contexts that we can get some meaningful handle on them.
An important starting point to consider here is that the societies we live in are fatally fractured by class and other oppressions; inevitably, ideals are fractured by them too. Martin Luther King appealed to ‘freedom’ from Birmingham Jail, but so did George W. Bush when invading Iraq. It all depends, and we need to be alert to this contextual dependence.
Michael E. Tigar is an American lawyer and academic who has long practised in the field of human-rights law where equalities, freedoms and rights of multiple kinds abound beneath the umbrella ideal of justice. In this short, punchily written book, he calls ideals such as these ‘mythologies’ when they ‘mask an underlying reality’ of power and oppression.
To introduce his argument, Tigar draws our attention to the cry of ‘justice is done’ uttered by France’s executioner when the guillotine blade dropped. This cry, he argues, encapsulated two mythologies: it elevated ‘the act of killing into an acceptable and rational process’ and it stamped justice as ‘the exclusive property of the state’ (p.7). Such mythologies dominate the law because ideals are constantly being moulded and shaped by judges and legislators in order to serve ‘state power and private economic power’ (p.10). Tigar wants to ‘bust’ these mythologies, to show us that ‘the law is not what it says, but what it does’ (p.11), and thus to open the door to resisting it and changing it.
Resisting and changing the law
The first mythology Tigar is anxious to bust is the general tendency to reify and mystify the law, to make it into a thing that somehow develops of its own accord beyond our control. This tendency can be detected in expressions like ‘the law has evolved’ (p.11), from which any sense of human agency has been expunged. By contrast, recognising that ‘people’ make the law means recognising that ‘other people can resist it and change it’ (p.12).
Who are these ‘other people’? In the courtroom, of course, lawyers; but outside it, all of us, and not only because lawyers are generally speaking best placed to win progressive cases when public agitation challenges a resistant judiciary. Here Tigar cautions against a narrow focus on courtroom victories, because to think that fundamental social change can be secured by these means would be to embrace another ‘disabling and disempowering mythology’. Lawyers merely ‘provide outcomes, not solutions’ (p.14). Solutions will have to be provided by us all, or as Tigar puts it, ‘ultimately, people in motion will decide matters’ (p.13).
A racist equality?
Tigar writes about US law, so a key chapter in his book is about mythologies based on race. Here he traces how, from the 1890s, the Supreme Court, the highest US court, repeatedly invoked the ideal of equality - or the so-called ‘separate but equal’ doctrine - in order to uphold racial segregation. This was equality in racist form.
In 1892, Homer Plessy bought a train ticket in Louisiana, sat in the ‘whites-only’ car and refused to move. He was arrested and charged with breaking a new state law decreeing racial segregation on trains. When the case finally came before the Supreme Court four years later, it declared segregation lawful as long as train accommodation for blacks and whites was ‘substantially equal’; hence the ‘separate but equal’ rule. Segregation, it added, did ‘not necessarily imply the inferiority of either race to the other,’ nor did it stamp ‘the colored race with the badge of inferiority.’ Such erroneous claims only arose because ‘the colored race chooses to put that construction upon it’ (p.23). In other words, here was the rankest prejudice dressed up as its opposite.
In arguably the greatest victory of the National Association for the Advancement of Colored People (NAACP), whose lawyers had been fighting cases for African Americans since 1909, the Supreme Court effectively overruled the ‘separate but equal’ doctrine in 1954 when it declared segregated schools unconstitutional. This decision and its implications, together with violent white obstruction to its implementation, helped give rise to a civil-rights movement determined to enforce desegregation in all walks of southern life.
Here was an example, then, of lawyers providing an initial courtroom ‘outcome’ but a mass movement from below driving that outcome to its wider political conclusions, much to Washington’s mounting concern. Nevertheless, a definitive ‘solution’ to racism remains elusive. This takes us to Tigar’s deeper point that a ‘people in motion’ will have to ‘decide matters’ by overturning the very ‘system of social relations’ (p.10), that law-makers are committed to upholding, but which is in fact daily feeding and nourishing racism.
Free speech in shopping malls?
In another intriguing chapter, Tigar charts how the right of free expression, though enshrined in the First Amendment to the US Constitution, has been periodically infringed and undermined by the ‘fear of the social change that free speech might engender’ (p.76).
State repression has been the direct means of doing so of course, most notoriously during the McCarthyite years. Generally, it has been prompted by fears of working-class self-organisation. When farm labourers were prosecuted for organising in California in the 1930s, the Hearst newspapers (the Murdoch newspapers of their day) hired so-called experts to testify that ‘dangerous speech’ was being ‘dictated by foreign ideologies’. Tigar quotes this farcical courtroom exchange with one of them:
‘Q: You are familiar with the teachings of Karl Marx?
Q: Can you define “dialectical materialism”?
A: Well (pausing), you have to take it one word at a time. “Dialect” - that’s the way foreigners talk. And “materialism,” that means going after money. So “dialectical materialism” is a bunch of foreigners who are trying to take our money’ (p.76).
But assaults on free expression have also taken more insidious forms. Tigar surveys a string of cases involving union and anti-war activists who organised workplace and other pickets inside America’s shopping malls, only to be unceremoniously removed from them on the grounds that shopping malls were ‘private property’ not public spaces. Mall owners claimed that they could lawfully deny free speech on their property, a claim activists challenged in the courts on the basis of their First-Amendment rights.
The activists won in some states but lost in others because, as one court bluntly held, the ‘constitutional guarantee of free expression has no part to play in a case such as this’ (p.84). So today, following a decision in 1999, no right of free expression exists in Minnesota’s Mall of America, the largest floor-space shopping mall in the US, visited by 42 million customers a year. It has an amusement park, a theatre, an aquarium, restaurants, a transit station, and multiple retail stores, but ‘no marketplace of ideas’ (p.86). Picket there at your peril.
The axis upon which modern society spins is the relationship between employers and workers. It is this society’s strength (where profits are made) but also its weakest link (when workers withdraw their labour). Employers are well aware of this weakness, which is why their interest can always be kindled by the opportunity to limit and restrict workers from organising.
In his chapter about workers’ rights, Tigar cites an English case from 1721 to illustrate how an attempt by workers to band together into unions to get employers to raise wages, for example, was early criminalised as the offence of ‘conspiracy in restraint of trade’. This offence was ‘elaborated to justify a claim that employers were being coerced to consent to raising wages’ (p.116).
Thus, two freedoms clashed: the freedom to organise and the freedom to trade. They clashed in 1721 just as they have ever since, with the outcome of these clashes determined at any given point by the comparative strengths of employers and workers, not by lawyers arguing in a courtroom. Tigar charts how the ‘conspiracy in restraint of trade mythology’ was used time and again in the US to hammer unions and imprison leaders and socialists like Eugene Debs, until its use was finally ended in the 1930s with the passing of two federal acts that gave workers the right to union recognition and to strike.
All this is not of merely historical interest, however. Tigar narrates it because the spirit of this repressive history lives on in more recent attempts by US employers to block union recognition. In 2008, Smithfield’s, the world’s largest pork and turkey processing company, sued the food workers’ union for ‘extortion’ (demanding money when none is due) because ‘the union [was] trying to influence people to pressure Smithfield to recognize the union and sign a collective bargaining agreement that would raise worker pay and improve working conditions.’ Smithfield claimed ‘at least in excess of $5,900,000’ plus an injunction to force the union to shut down its community campaign for recognition (p.112).
Others have tried this on too, in particular Prime Healthcare Services, a company that makes its profits by running forty-five hospitals in fourteen states with a ‘largely non-union’ workforce (p.125). Taking the example set by Smithfield to yet another level of absurdity, Prime didn’t just sue the union seeking recognition, it sued a healthcare competitor for having recognised the union on the basis that this represented ‘actionable harm to employers who are anti-union’ (p.126). All in all, more compelling reasons to defend the NHS from Trump, Farage and other predatory ultra-neoliberals.
Smithfield settled while Prime eventually abandoned its claim, both in the knowledge that they were unlikely to win. But the point is not that they were unsuccessful; it is rather that, as Tigar puts it, ‘one might have thought that in the twenty-first century workers’ rights would be so universally recognized that no employer would hire a bunch of very costly lawyers to bring a lawsuit like Smithfield’ (p.113).
The fact that workers’ rights are not universally recognised is in the end a reflection of one essential fact, that the US ruling class has been relatively successful in controlling workers and curbing unions. Lawyers cannot remedy this; only workers themselves can, by organising, by demanding recognition, by striking, by agitating for legally guaranteed rights and by working to secure their political independence.
In a society fractured by class and other oppressions, contradictions between those seeking to use ideals to counter state and corporate power and those incorporating them into the law so as to serve it are inevitable. These contradictions are the root source of law’s multiple mythologies.
It is the job of radical lawyers to bring progressive cases on behalf of their clients and thus help expose law’s mythologies. They will lose rather more than they win, but as the great American civil-liberties lawyer, Clarence Darrow, one of Tigar’s heroes, once laconically put it, ‘a lawyer who wins all his cases does not have many’ (p.118).
Win or lose, Tigar rightly stresses that radical lawyers will need to fight cases fully conscious of the modesty of their role, for they ‘do not stand at the center of events, but … assist those who are at the center or who are brought into conflict with the state’ (p.69). As resistance grows to anti-abortion laws passed by states across the US, this is an important message for lawyers and non-lawyers alike.
Dragan Plavšić is a member of Counterfire in London and of Marks21 in Serbia. He jointly edited The Balkan Socialist Tradition and the Balkan Federation 1871-1915 (2003).