Category Archives: Politics

Winding Down: Law and Society in Review (or, on the Unnaturalness of the State and Citizenship)

As the year winds its way to a close…

who are we kidding? Second semesters end with a crash and a bang, and we’re not winding down so much as rapidly deteriorating as we frantically write term papers and prepare (read: cram) for finals.

But I digress.

Ahem. As this year of CAP (and my sanity) disintegrates, ending abruptly as it does, I’ve been thinking about all that we’ve learned about law and the society it creates, or rather, society and the laws it constructs in order to determine itself.

The idea that has stood out to me most prominently, in all of our classes, has been that society, politics, history, and the socio-political norms that govern our day to day lives don’t really hold up to much scrutiny. As anthropology has worked to make us consider our own culture as foreign it has become increasingly easy for me to see how contrived our rules for living, or our cultural knowledge is. In these last few weeks, reading Brand’s novel and watching the beginning of Dirty Pretty Things in ASTU and watching the documentary Opre Roma in ANTH have further confirmed for me the theory I’ve been slowly developing this year:

Our societies are constructed on the basis of very tenuous principles and rules. We collectively choose to follow and impose these rules not because they are the most logical or the best, but because they have worked in the past and continue to serve the purpose we want them to: they grant stability and provide easy guidelines for how we will lead our lives. But the principles that govern our lives, often enshrined in the laws that we make and preserve, are not necessarily right. They are not unquestionable, and often, perpetuating them means perpetuating the mistakes that we and our ancestors have been making for centuries. Sometimes, the rules that we enshrine in law are unjust.

Justice and Law have an interesting relationship. On paper, the laws we have are intended to bring about justice. In reality, we run into murkier shades of right and wrong. One of the cases in which I think there is a massive disconnect between law and justice is that of the state and state determined citizenship.

As we discussed in our most recent class, it is nearly impossible to have a state without having outsiders— we often define citizenship in terms of what it is not. The creation of a state complete with citizens is predicated on the exclusion of outsiders, or foreign nationals. This dichotomy (citizens and foreigners) also often leaves room for a third category of people, those somewhere between foreigner and citizen, in the process of gaining citizenship in a new country.

It is easy to slip into believing that these divisions between citizen and foreigner or local and immigrant are natural, that they have always been and therefore will always be means of categorizing ourselves. But the state is, to begin with, a contrived entity. It doesn’t need to exist, it exists because we will it to. The arbitrary distinctions between those with citizenship and those without are as justifiable as the existence of states, but the question should not simply be “can we defend the existence of these categories?” but also “are these categories doing more constructive good than they do harm?”

When considering the issues that the state and its exclusions create that we’ve studied in this CAP stream, I’m inclined to believe that our rigid definitions of citizenship should be either heavily amended or dispensed with altogether. But I’ve yet to fully consider, of course, what such a change might look like.

What Happens When Laws are Just but Unconstitutional?

When Martin Luther King penned his Letter From The Birmingham Jail there was little question on anybodies mind as to the inequality of people of colour and Caucasian individuals in the United States.  There were those in favour of the inequality and those opposed to it, but no one would call into question that the country discriminated against non-whites.  Race disparity was plainly visible in the world the Americans of the cold-war era found themselves in, from schools and drinking fountains to the courts and the voting booths.

So when the Voting Rights Act was instated, as the first legislation of the American government that focused on amending the effect of the prior laws regarding voting rather than changing their intent it made sense in its social context.  Though the bill was uncommon in form and intent as well as uncommon in that it was a legislation on voting made at the federal level rather than at the state level, it served an incontestable purpose: ensuring that the inalienable American right of equality was preserved at the voting booths.

This past June, a section of the Voting Rights Act was overturned.  The section in question required that election changes in nine states (including Louisiana and Texas) gain approval by the American Justice Department prior to enactment.  Chief Justice John Roberts, among others, suggests that due to recent voter turnout statistics in these states showing that a larger percentage of ethnic minorities attending the voting booths, these states can no longer be subjected to extra scrutiny under the VRA.  Any claims and complaints issued by individual members of these states against the state government will be dealt with on a case by case basis by the courts.

My opinions are fairly divided on the matter.  Intellectually, I understand that there are several legitimate claims that can be made against the VRA, not the least of which is its outdated status.  If recent statistics show that voter turn out has improved in states in the south, then they cannot possibly be held to the current level of scrutiny they are under.  The amount of power this lends to the federal government in a federation such as the USA is unconstitutional.

I recognise, of course, that it is no small thing to call the constitution of a great nation into question.  But one (perhaps heretical) question has plagued me since I began regarding law and society at the start of this school year: if laws are unconstitutional but just, then what is wrong?  Is the law wrong and the constitution to be followed?  Or is the constitution inherently flawed and therefore deserving abandonment?  Though the power of a constitution is perhaps not worth calling into question over one law, how many laws must challenge its authority before it falls?  I am willing to respect a constitution so long as it upholds the justice of the people it serves.  But when it no longer serves even that simple purpose, it no longer serves any purpose worth serving.  Order, safety, and even democracy are petty things to consider when the equality of human beings is at stake.  For true democracy cannot exist in an unequal society, and when democracy crumbles, safety and order are never far in its wake.

Fighting a constitution with a long history of upholding injustice may be an uphill battle, but in the words of Atticus Finch, in Harper Lee’s To Kill A Mockingbird: “Simply because we were licked a hundred years before we started, doesn’t mean we shouldn’t try to win.”