Untitled

-- By EricaSelig - 26 Feb 2010

INTRO: LANGUAGE OF THE COURTS OF CONQUEST

In 1392, Antonio de Nebrija wrote Gramática, the first modern grammar book of its kind. Upon presenting his work to the Queen of Spain, Nebrija allegedly quipped that, “language...is the perfect instrument of empire.” Indeed, the manipulation of language and its application to political thought and legal theory served as a mechanism for legitimizing colonization, conquest, remediation and the eventual genocide of the native peoples of the New World. The emergence of the rule of law, from its inception in the medieval papal discourses to its eventual manifestation in American jurisprudence, was largely a reflection of the bare will to power of the imperial state.

A foundational property case, Johnson v. M’Intosh, clearly illustrates this nexus between law and the violent state apparatus: “Conquest gives a title which the Courts of the conqueror cannot deny.” This doctrine of discovery, while no longer a prevalent legal framework, nonetheless has ramifications on how exactly today’s legal system affects and shapes the lives of the disenfranchised. This class began with the proposition that lawyering is making things happen in society with words. But certainly making things happen that aren’t oriented towards the status quo or the powers that be is significantly more challenging and perhaps untenable.

This essay will explore the reasons why the common law in its American iteration tends to be especially conservative, in the Burkean sense of the term. Further, it will highlight two perspectives on how the legal system can be harnessed to protect and advance human rights, even of those same groups that it originally dispossessed.

STASIS: DISCONTENT AND MIDDLE CLASS APATHY

Law is difficult to understand without the help of a practitioner. This point is perhaps a truism, but also a source of potentially deep-seated mistrust and victimization vis-à-vis the government. A man flew himself into a building and wrote: “Here we have a system that is, by far, too complicated for the brightest of the master scholars to understand. Yet, it mercilessly ‘holds accountable’ its victims, claiming that they’re responsible for fully complying with laws not even the experts understand.” Giving up hope in the courts and the fabric of government, this man instead decided to jar middle class consciousness with an act of terrorism.

He is not alone in thinking that the government continually fails to fully protect the bulk of its citizens. The abolitionist philosopher Henry David Thoreau asserted in Civil Disobedience that the government “does not keep the country free...does not educate.” This idea that government is unresponsive to the true needs of the people is partially grounded in historical reality; the courts, with some exceptions, have responded to the demands of extending the franchise and civil rights only after successful social movements have made it impolitic not to.

Nonetheless, this populist idea that government cannot be trusted to effectively promote the public welfare is a self-fulfilling prophecy, with tragic implications. Even if the impetus for change comes from grassroots and local communities, courts must be utilized as legitimating devices for enforcement purposes and for actualizing long-term progressive strategies.

CHANGE: RECONFIGURING INTERNATIONAL LAW

Is the scope of political action available to those pursuing legal reform limited to incrementalist change that merely reinforces the current system? The legal realist Felix Cohen writes: “What courts are actually doing…is to create and distribute a new source of economic wealth or power.” Of course courts wield immense power over the disputing parties and the particulars of their relationships to the state and to each other, but do courts really have the agency to create power where it isn’t already entrenched?

Two activists look to institutions of international law to find mechanisms of long-lasting social change. In Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America, the legal historian Robert Williams offers several interesting solutions to what he sees as an often unconscious racial bias against Indians in the current legal system. None of these solutions involve a nineteenth-century reading of the Constitution: “I set out an axiom at the beginning of this book: ‘A winning courtroom strategy’ for protecting Indian rights cannot be organized around nineteenth-century racist legal precedents and an accompanying form of legal discourse that stereotypes tribal Indians as lawless, uncivilized savages.” Instead, he suggests that the inter-American system for the protection of human rights, under the aegis of the Organization of American States (OAS), is a viable institution to handle conflicts between sovereign states and indigenous peoples. At the very least, the OAS continues to generate new legal frameworks and recourse for indigenous peoples. Further, Williams praises parts of the international law community: “Lawyers and advocates, NGOS, government representatives, and international diplomats all contribute to this complex process of transnational jurisgenesis....[new frameworks] aim towards...the prescriptive articulation of the expectations and values of the human constituents of the world community.”

Pathologies of Power: Health, Human Rights, and the New War on the Poor offers a physician’s perspective on the state of international law and its impact on the poor. Co-opting legal terms to advance his cause, Dr. Farmer posits that, “a truly committed quest for the high-quality care for the destitute sick starts from the perspective that health is a fundamental human right...access to the fruits of science and medicine should not be determined by passports, but rather need. The 'health care for all' movement in the United States will never be morally robust until it truly means 'all.'” While ever critical of the state of increasing structural violence in the modern global world, nonetheless, his conception of health as an affirmative right seems a viable way to legitimize universal healthcare in the American context and also to make healthcare more robust in the international setting.

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