Archive for February, 2012

The Law, She is Simple

Law, along with economics and politics, is a relatively comprehensible subject about which the ruled are systematically kept ignorant. It’s an intuitive subject made ridiculously and artificially complex.

Here’s a necessary axiom of any civilized legal system: if there’s no victim and/or nobody complaining, nobody can be charged with a crime. To put it positively, if an action doesn’t hurt anybody else, it can’t be illegal.

That leaves room for complexity–situations where there it’s hard to tie together bad actors and victims, like, for example polluters or financial criminals.[1]But let’s put those aside for the moment and talk about the cases in which there is clearly, inarguably no victim at all.

If we were to go prisoner-by-prisoner and ask everyone in the country: “Did this person ever harm you in any way? If not, we’re letting them go,” somewhere north of 80% of people would walk free.

Those 1.5+ million people are typically in cages for one of two reasons. Most frequently, they’ve done something that is “wrong” in someone’s opinion, usually to do with buying or selling non-patented drugs. The second category of prisoner are those who someone (usually the same someones from the first case) thinks might engage in an actual crime with actual victims in the future–usually poor people with BAC higher than .08 or those who don’t enthusiastically follow orders from a cop.

That’s over 1.5 million people in cages in the US because nobody–at least not enough people–understand the most basic legal premise: no victim, no crime. I’ve never had a discussion with a lawyer about this subject that made any sense to me[2] That in itself doesn’t disqualify the legal-system-that-is as being something that does make sense, of course–I don’t understand quantum physics or space-time either. I feel like I’m willing to admit what I don’t know.

But when an expert in the field tries to help me get my mind around 4 dimensions or particle physics, I can see–usually via analogy or some simplification–the gist of what they’re trying to convey. It also helps that their explanations start with universal principles that are veritably true, or at least are very probably true.

When a legal expert attempts to explain why actions without victims (again, putting aside fringe cases) are crimes, things get absurd very quickly. There is no analogy or model or motivating example that leads to even a glimmer of sense. Yet every lawyer, every judge, and most politicians are trained in this way of thinking; this notion of the law as opinion given violent force. If you manage to stay in the conversation long enough, the rationale usually disolves down to: “it’s the law,” or some twist on the social contract–a fantastic unseen document that seems to under-gird most of the gawdawful things that rulers do to everyone else

And so, men, women and children are locked up. Their lives are destroyed based on legal principles that can’t be clearly explained other than to say that they exist because they do or because magic.

Not unrelated, but for another post: most of the people whose actions *do* have thousands or millions of victims–bailed out bankers, polluters, violent cops, “private abusers”/rapists, mercenary/imperial armies, etc.–are never held accountable. And so the law as we experience it is sort of the opposite of how law is supposed to function, which is kind of a pattern you may have noticed around other apologies for violence.

I am optimistic that 10 or 20 years from now, and increasingly as I age, I’ll be able to talk about law with people who weren’t raised with physical punishment or by parent who thought “because I said so” was a reason for anything. With more and more children being raised in safe, sane and loving households the nonsense that currently passes for a legal system doesn’t stand a chance.

  1. [1] two crimes with tons of victims and almost no one held legally accountable are polluting of the environment and financial fraud.
  2. [2] Granted, I don’t hang out with lawyers that often.

The Straw Man of Collective Guilt

In response to a previous post:

“Women are oppressed by men” is so large and grandiose and vague as to be useless.

That may be true, but then so are: “taxation is theft,” “The police have always been thugs who protect the moneyed,” or “Any unarmed people are slaves, or are subject to slavery at any given moment.”

Most taxpayers self-report as willing; most police want to serve the public and very few unarmed people (in the United States) feel like slaves. To note the abstract relationship isn’t to express a universal as expressed by each and every individual, it’s to highlight the fundamental dynamic. The core truth of taxation is that, if one were to resist it, one would find oneself mugged. Any policeman who wants to be a thug won’t likely be stopped and anyone who attacks the infrastructure of wealth will find themselves fighting police. Unarmed people every day find themselves fighting heavily armed state agents and are forced into an obedient role (or find themselves dead).

Most men don’t rape women, many men may not ever use their physical presence to dominate a woman. The fundamental reality of sex, however, is that almost any man can physically overwhelm almost any woman at any time. Importantly to the day-to-day reality of women, that worst-case scenario plays out more frequently than the federal take-down of tax resisters, instances of police brutality, or the rounding up of disarmed civilians.

Show indicia of THIS MAN oppressing THAT WOMAN and you begin to show clarity.
I’m not shouldering blame for what some other man did to a woman I don’t know.

Indicia? You have furthered my education with your comment, sir! This is, I think, the crux of the issue. The conversation about the realities of existing power dynamics does not damn or entitle any individual. We’ve been conditioned to believe:

Wherever human beings engage in direct discourse with one another about their mutual rights and responsibilities, there is a politics. I mean politics in the sense of the public sphere in which discourse over rights and responsibilities is carried on, much in the way Hannah Arendt discusses it. …. The force of public opinion, like that of markets, is not best conceived as a concentrated will representing the public, but as the distributed influence of political discourses throughout society.
Johnson and Long, Libertarian Feminism: Can This Marriage Be Saved?

That refusal doesn’t make me a co-oppressor.
It merely makes me someone who will accept blame when it is accurately placed


Certainly no one should be blamed for the actions of a third party and refusing to “shoulder the blame for what some man did to a woman I don’t know” is absurd. In discussions about the crimes of government, kindergarten teachers aren’t widely considered to be co-oppressors. The state can be the object of critique without everyone who is in some way connected to state power feeling the need to come screaming in to stop the discussion. The same should be true of critiques of other power disparities.

At issue is not the need for collective guilt, but rather to honor the subjective experience of people giving their account of oppression. To return to the parallel, anarchists bristle when their subjective accounts of state oppression are dismissed and when they are chided to remain within the cultural confines of “their place in society” in order to remain unmolested by state agents. We, of all people, should stand in solidarity with others whose experiences are similarly dismissed–those who are told to fit sex, gender, and any other social norm in order to remain unmolested by whoever claims the authority to trespass against them. That solidarity should be extended no matter who the claimed oppressor is, even if it’s not the state.

The State and Other Oppressors

I’ve said it before, and I doubt you’ll be spared me saying it many times again: for most people on this planet, the state isn’t the primary impediment to their freedom and happiness.

Not to downplay the millions of victims on the receiving end of US “foreign policy,” or caged in global or domestic gulags–the withering away of the state will mean life instead of death or imprisonment and that is, of course, a very good thing.

A component of that withering, both underestimated and inestimable, is the recognition and dismantling of systems of oppression besides those enshrined in state institutions.

While the parallels between the violent nature of the state and the violent nature of other power structures are striking, they’re hard to address because, like state violence, their pervasiveness makes them difficult to identify. Highlighting the true nature of these systems to someone who has grown up within them is nearly impossible. Enlightenment, if and when it happens, usually comes when the “violence inherent in the system” manifests itself on the soon-to-be-enlightened, or perhaps a loved one thereof.

The other path to seeing the previously unseen is repeated exposure to the idea that the system is based on violence, founded on inequality. This requires profound patience on the part of all involved and a waiting out of the bluster and bombast and whatever other defense mechanisms are in place to prevent one seeing what is in front of one’s nose.

Anarchists get that the state relationship is based on violence: not just the wars and the prisons, but every law. The proof of this is trivial and it’s an axiom, literally, of all post-highschool political science, yet most Americans refuse to see the violence in the system. They believe that they are voluntary participants in institutions necessary for civilization when the truth is actually the opposite.

Outside of the persistent targets of state violence: immigrants, the poor, and racial minorities, only the disobedient get a taste (or more, depending on how quickly they relent) of what stands behind every law, every ordinance, every statute.

I have some rudimentary insight into a particular non-state parallel that I’ve written about before. Prepare to detect in yourself the defense mechanisms that will attempt to force your mind away from a very clear and obvious truth: women are oppressed, not primarily by the state, but by men.

Yes, there are exceptions; yes, the state historically supported the dominance of me; no, not all men are violent oppressors; no, not all women are victims of physical violence. Neither are all citizens victims of state violence and neither are all state agents perpetrators of violence. As Charles Johnson and Roderick Long point out in their must-read paper, Libertarian Feminism: Can This Marriage Be Saved? regarding a common non-feminist reaction to the claim that we live in a rape culture:

Libertarians rightly recognize that legally enacted violence is the means by which all rulers keep all citizens in a state of fear, even though not all government functionaries personally beat, kill, or imprison anybody, and even though not all citizens are beaten, killed, or imprisoned; the same interpretive charity towards the radical feminist analysis of rape is not too much to ask.

The analogy I’ve used is the experience of being approached by a policeman. In a given encounter, it’s very unlikely that the cop will beat, cage or kill you. The anarchist analysis, felt in the gut of virtually everyone even if it can’t be put into words, is that the policemen could beat, cage or kill you and would almost certainly get away with it.

If he wants your name or ID or for you to disclose the contents of your pockets, it’s considered by most to be a normal social interaction. Your resistance to his desires is considered unnatural and potentially risky. Anything that happens to you if decide to break with the social norm is going to be seen by most people as your own fault, by one twisted rationale or another.

Women are in an analogous position vis-à-vis an encounter with a man. A woman is expected to make conversation and be cordial if approached and can reasonably be asked her name, phone number, and what she’s doing this weekend. None of this is considered socially invasive. It place in a context where violence could very well be the result of refusing to participate. In most cases, barring sufficiently enlightened witnesses, alot of people will bend over backwards to blame the woman for whatever ills visit her as a result of the encounter.

Denying that this is the case, especially denying it to people who have had that very subjective experience, is, well, fucked up.

I’ve got alot more to say about this, but in the interest of actually posting something, I’ll break it off here. This feels rambly anyway, so I’d be happy if somebody focused my thinking on some aspect of the above.