Rico Altman Merino

On the Ethics of the Law, or, “Effective Government” Isn't Just for Wonks


ISSUE 2 | BREAKING THE LAW | MAR 2011

The target of this article is a particular attitude that has taken root, albeit in a number of divergent and often ill-defined forms, primarily among young and educated people in our society. The cynics among us have a tendency to recoil from the difficult and real circumstances of the world, with a sense that they are either too solid to be disturbed or too ephemeral to matter. Thus, there has been a collective failure to approach the issues of our day with even a gesture of seriousness. I am wagering that the reluctance on the part of radicals of our generation to engage in politics on the level of the state or the law is essentially an effect of what I will term liberationism—the implicit or explicit belief that the abolition of relations of domination is both necessary and sufficient to achieve positive social change. A corollary to liberationism is a certain anarchic tendency to restrict the law itself to dominating roles. Viewed in this way, any number of social problems can seem unsolvable when no such dominating relation appears to be at work. I propose that adherence to these notions is a premature surrender to reactionary forces.

My philosophical basis for alleviating this condition is a modified version of Foucault’s views on the care of the self. In Ethics: Subjectivity and Truth (1984), he distinguishes between processes of liberation (libération) and practices of freedom (la liberté). Liberation is the cancellation of a relation of domination, the unconditional control of the slave by the master or the colonized by the colonizer. But liberation does not specify how a person’s existence will thereby become fruitful because it does not define “acceptable forms of existence or political society.” Thus, the political efficacy of a project of liberation rests on “the idea that there exists a human nature or base that, as a consequence of certain historical, economic, and social processes, has been concealed, alienated, or imprisoned in and by mechanisms of repression.” If liberation can defeat relations of domination, it is perhaps a prelude to something rich and positive. But by merely canceling a relation of domination, nothing concrete is achieved. Freedom must be practiced rather than possessed.

I contend that our federal government is actually the site of a potentially positive relationship between law as a social institution and freedom as a political technique. In the United States, the sphere of the state’s involvement has, since the second half of the nineteenth century, increasingly melded with the sphere occupied by institutions of social control. That historical moment produced the Freedmen’s Bureau, the Interstate Commerce Commission, the Pure Food and Drug Act. The scope and membership of labor unions increased dramatically. Such events gave institutional legitimacy to the connection between the political process and conditions of social existence (e.g. labor and capital, the use of resources, the use of urban spaces, public health). That legitimacy has only multiplied in the last century. The policy benefits of this change are obviously debatable, but the shift in the very nature of state action is unmistakable. The legitimacy of these institutional efforts feeds the play of power that produces federal policy, and in turn, that play of power renders the conditions of social existence increasingly movable and modifiable. Never before, and in no other nation, has law been the site of such painstaking negotiations, contested turfs, and shifting games of war than in the United States today.

In this context, members of the Tea Party are the uncompromising liberationists of our time. They interpret all government power relations as relations of domination. Public health care can only lead to Nazi eugenics. Public education can only lead to Stalinesque brainwashing. Today’s right-wing anti-government rhetoric, with its paranoid attitude toward forms of social control, clearly borrows from left-wing anti-institutionalist rhetoric, which in turn is the product of a misreading of Foucault’s account of schools, asylums, hospitals and prisons. My hope is that the reactionary vigor of the Tea Party movement will awaken us to the error that some leftists have made in denouncing all forms of “power.”

We must realize the irony of the fact that the history of “emancipation,” unlike the history of subjugation, has nearly always, but especially in the past century, occurred at the level of the law and state politics. For example, the affirmative action movement is a product of the fact that racist conditions of inequality still exist despite legal rights that were realized during the civil rights movement in the 1950s and ‘60s. But although the enemy of progressive racial politics is no longer the same as it was, we have continued to formulate inequality as a problem of emancipation, invoking the rhetoric of barriers, prison cells, and oppressive laws to describe race relations in our society. (This is almost an error of language as much as it is an error of political strategy.) Of course, relations of domination still exist, and in those cases, liberation is the correct rhetorical and institutional strategy to pursue. But when we approach a persistent social problem, we tend to move the goalposts in order to continue defining our agenda as emancipatory. We explain the persistence of such problems as a result of the refinement of technologies of domination. But there is no reason to believe that all conditions which we oppose—of injustice or inequality or suffering—can be addressed in terms of liberation. School integration in the South could not have been achieved simply by repealing segregationist laws; Brown v. Board of Education did not define acceptable practices in civil society. Students had to be brought to school on federally mandated buses, protected from harassment by National Guard units. The political reality of integration was not consistent with the rhetoric of liberation that accompanied it.

In our society, any real, practicable freedom entails the capacity to participate autonomously in public matters, a capacity which has yet to be fully and universally realized. Again, processes of liberation alone fail this standard. Traveling in and around the Hyde Park neighborhood of Chicago, for instance, is often complicated by the geographic layout of the neighborhood. Many streets either end in a “T” and then pick up again a couple of blocks later, or are blocked by parks or buildings. It is a widespread belief, and apparently true, that this layout was put in place in the middle of last century to make it more difficult for poor and/or black residents of the surrounding neighborhoods to enter the whiter and more middle-class Hyde Park. This, to me, is an instance of oppression that could theoretically be ameliorated by quite literally removing the barriers. But even if the barriers were removed, I imagine the liberationist argument would respond that the autonomy of the underclass pedestrian is still denied (repressed, imprisoned, blocked) by the gaze of the Hyde Park pedestrian. That may or may not be true, but can’t we agree that once the original object of protest has folded, the problem must be re-assessed? How can any person expect to exercise autonomy when they’re constantly trying to locate an invisible master to whom they’re enslaved?

Even laws whose technical function is to place restraints can actually cause the proliferation of desirable practices. For example, we have anti-discrimination laws that govern all entities that operate in the public square, regardless of ownership. The left-wing critique of liberal anti-discrimination policies is concerned with the themes of repression and imprisonment, which only serve to make race, class, gender and any other identity into pathologies. It proposes no solution at all. The right-wing critique of anti-discrimination laws, that it imposes a burden on communities that should be allowed to resolve their problems organically, makes a different liberationist error. It assumes that social and political practices are an expression of cultural values, rather than potentially a means of producing or changing those values. The juridical code imposed by such laws demands that we imagine egalitarianism. By asserting their effectiveness, I am in a sense defending the notion of “abstract equality,” which has been criticized as a barrier to real equality. But why can’t a discourse of equality be part of egalitarian practices? Indeed, anti-discrimination can serve as an incitement both for the dominant culture to form links with countercultures, and for subcultures to develop their own communal infrastructures and cultural identities, along with mastery of the sphere in which social and political capital circulate. These goals are just a handful of many possible routes that freedom could take; the point is that none of them can be achieved within a solely emancipatory political strategy.

Admittedly, it is much more difficult to schematize or theorize these routes to freedom in the way that liberationism has schematized politics, because for freedom, the goal must inform the tactic. Unfortunately I cannot give a definitive statement of any such theory, but I will use the balance of my article to point us in what I believe to be right direction. This will take the form of an ethics of the law, a deliberate system of action by an individual to influence the course of politics.

Liberationism denounces barriers, but it limits itself to combating those barriers only by blocking their exercise or expression. Canonical U.S. history teaches us that the 1787 Constitution placed fewer constraints on the powers of the central government than the earlier Articles of Confederation. In its day, the Constitution was roundly denounced by more than a few as merely a new kind of tyranny. (To a critic of leftist liberationism, this logic rings eerily familiar.) But today’s conservatives hold up the Constitution as the embodiment of limited government. Thus, the language of liberation/domination—limit, preservation, oppression, repression, imprisonment, tyranny, checks and balances—runs up against a glaring inconsistency when it bases political action on abolishing constraint, but can only answer it with opposing forms of constraint.

To properly practice freedom, we must formulate a political ethic that can actually produce desired effects autonomously, that is, without constant reference to its opponent. Both right-wing constitutionalism and the left-wing retreat from state politics conceptualize a passive public of immobile subjects. Any discourse that opposes “the state” and “the people” assumes that individuals have a minimal impact on the course of their own government and must be protected by the state. An attentive conception of the law requires, first, a new conception of this subject. To state the obvious, a powerful government cannot rule over free people unless the people are free to control the course of the government. The Constitution clearly intends for us to practice that freedom, and it identifies the circumstances of its exercise. Policy debates often take up the question of how our electoral process can better reflect the public interest. But elections are merely one rather feeble way in which a conscious citizen practices political freedom. The supreme ethical program available to the political subject is the manipulation of the legal infrastructure under which state affairs are conducted. Currently, lawyers are the only full practitioners of that ethical program. The professional practice of the law, which trains individuals not to extract underlying truths from a text, nor to unveil the collective psyche, but to use text as a tool in the pursuit of a juridical outcome, ought to be the model for the actions of all citizenry.

Our generation is disenfranchised by our own disdain for national politics as such, for the Democratic Party, for liberal policymakers, liberal organizers, and union bosses. All of their efforts seem to serve only as their own eventual downfall and so we have withdrawn from those spheres. Although the conduct and professional mindset of a lawyer are stereotyped by our culture as crudely opportunistic, we ought to embrace the potential that those stereotypes hold: despite our disdain, as a generation, for state politics, we are remarkably well-attuned to the value of disciplined attention to the consequences of our actions. We have the ideological conviction, the advanced technology (in the general sense of tools) and the social training to enact such a deliberate system of action. This is as far as I am prepared to take us at the moment, but I ask you to imagine what might be possible if every citizen were also a lawyer.