The law has to live in functionality for it to live in flesh and blood. History knows that most ideas of governance and law are simply not livable. Consider the Constitution of the Soviet Union. Most modern Americans would call it enlightened. What happened? There were no checks and balances, no way for its people or government to live it, no evolutionary stability. Aspirational, yet dead and dusting as the paper it’s written on, dead as all of the other Communist-transformational notions. The same happened with the separate-but-equal legal principal of race-segregated African Americans in the south. It was never feasible to have two sets of civilization. And so the “equal” part inevitably became a travesty, overturned by the court as fiction a century after the North tried to impose race enlightenment on the South during reconstruction. For the French Revolution, “Liberty, Equality, Fraternity” could never be made functional. Liberty and equality are in conflict. Fraternity cannot live in the wreckage. The great terror was the end point of trying to bring the conflicting concepts to life. There cannot be rule of law in a country that pursues equality, since equality cannot be defined legally; the disaster of two centuries of trying still not testifying loudly enough against its despotism.
The American revolution had the “all men are created equal” principal (not equal outcomes; see how one word can create a functional evolution?). The principal has been partially betrayed in application, but legally applicable, remaining a stable legal philosophy, even as a work in progress, all these years later.
Like any other system, the law can fail in evolution if it’s too expensive, too complex; undefinable, idealistic.
Look at Hilary Clintons’ platform for 2016 to see that, aside from her positions calling for the equivalent of medical breakthroughs or new inventions, so many of her campaign promises would require ever-greater armies of lawyers to force into life. Imagine their application in the law in the world as it is today. Ask “how, exactly, would (say) greater fairness for the LGBT community work, what’s the clockwork of it, how do we measure success and failure?” Now imagine how you’d feel if you were served with a summons to court demanding you to answer to a fairness notion so hard to define, so subjective. The lawyers would, of course, be happy to charge breathtaking sums to try.
Historically, debates of fairness and inner prejudice were settled by family, community and clergy. From the outcome, it’s fair to say that when Americans sought to replace these institutions with the State, dysfunction has been the result. It now takes – well, only God knows how long – for a civil case to be adjudicated. Often, the social conditions the suit made necessary would have changed on their own long before resolution.
If we want the Government to solve issues of fairness and discrimination using the courts, then we urgently need reform of its functionality (to be covered in a subsequent posting). How much American resistance to these cultural hot button issues comes from the fear that their house may be forfeit if they misinterpret the rarified legal mystery? I, myself have sat in training classes on how to address ladies politely (as part of my job training, not dance school), in my institutions’ extraordinary efforts to shield themselves from ruinous liability. That time in class might have been used in teaching me new medical skills, just to name one distortion of God knows how many (this, in the face of a torrent of porn and affronts to women in the popular culture).
Is it even fair to require individuals pay for the general, much less abstract, goals of social change? Most of Europe has managed these goals without making losers on one side of a lawsuit and jackpot-lottery winners on the other (not to mention the entrenchment of an grievance industry looking to do it again, irrespective of the social progress).
It’s one thing to ask people for fairness; for many of the Lefts’ goals of fairness I am in complete agreement. But asking is not the same as coercing. The dysfunction in American courts now is that the process is the punishment. The fundamental question should be: how we can remain (I’d argue ever have been) a nation of the Rule of Law if the law is ruinous and dysfunctional in its actual use.
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