The Force of Law

Slavery Today

Kevin Bales & Becky Cornell

The Betrayal of Africa

Gerald Caplan

Sex for Guys

Manne Forssberg

Technology

Wayne Grady

Hip Hop World

Dalton Higgins

Democracy

James Laxer

Empire

James Laxer

Oil

James Laxer

Cities

John Lorinc

Pornography

Debbie Nathan

Being Muslim

Haroon Siddiqui

Genocide

Jane Springer

The News

Peter Steven

Gangs

Richard Swift

Climate Change

Shelley Tanaka

The Force of Law

Mariana Valverde

Series Editor

Jane Springer

Copyright © 2010 by Mariana Valverde

Published in Canada and the USA in 2010 by Groundwood Books

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, without the prior written consent of the publisher or a license from The Canadian Copyright Licensing Agency (Access Copyright). For an Access Copyright license, visit www.accesscopyright.ca or call toll free to 1-800-893-5777.

Groundwood Books / House of Anansi Press

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or c/o Publishers Group West

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We acknowledge for their financial support of our publishing program the Canada Council for the Arts, the Government of Canada through the Canada Book Fund (CBF) and the Ontario Arts Council.

Library and Archives Canada Cataloguing in Publication

Valverde, Mariana

The force of law / Mariana Valverde.

(Groundwork guides)

ISBN 978-0-88899-817-0 (bound).—ISBN 978-0-88899-818-7 (pbk.)

1. Law enforcement. 2. Law. 3. Police power. I. Title. II. Series: Groundwork guides

HV7921.V33 2010 363.2’3 C2009-906509-6

Design by Michael Solomon

Index by Gillian Watts

Contents

What Is the Law?

Kafka’s Challenge

Law and Culture, Law and Justice

Who Are the Police?

What Do Police Do?

Law’s Harms

The Politics of Policing in Democratic Societies

The Force of Law Timeline

For Further Information

Index

This book is dedicated to Nicolas, Ming, José Luis, Laura, Carolina and Kevin — in the hope that their generation will do a better job of working towards justice.

Chapter 1

What Is the Law?

What is the law? And why does it matter so much?

People talk about law in two quite different senses. Citizens often argue about whether specific laws are good or bad — as in public debates about whether marijuana should be legalized or whether women’s access to abortion should or should not be subject to legal limits. The specific laws that are in effect in a particular country at a particular time make up the law, in the sense of laws that actually exist.

But the law is also a term with a broader and loftier meaning. For centuries now, many people around the world have fought hard, even giving up their lives, for the sake of defending the rule of law in their country. In nineteenth-century Europe there were revolutions in France, in Germany, in Spain and in other countries that tried to replace the arbitrary rule of monarchs by a system in which no one would be above the law. More recently, the hundreds of lawyers and judges who risked their careers and their physical safety by participating in a street demonstration in Pakistan, in June 2008, to demand the reinstatement of Chief Justice Iftikhar Chaudhry and about sixty other judges summarily deposed by the president were not marching for or against a particular law. They were putting their lives on the line to defend lawfulness as such.

Specific laws come and go, and few citizens are willing to go to the wall to either defend or oppose a particular law. But law in general, the rule of law, is absolutely crucial. What does the phrase the rule of law mean?

The principles of the rule of law developed over time, as citizens became unhappy with being loyal subjects of absolute monarchs and undertook the tremendous task of devising forms of government that would be accountable to the people. Accountability is at the heart of the idea of the rule of law. Accountability (also known as responsibility) is a key political principle, much older than the right to vote, by which governments are obligated to act in the public interest and to give a satisfactory account of their actions and policies to their people.

Accountability and democracy are not the same thing. Indeed, the rule of law is not identified with any one system of government. Britain is still a monarchy, while most other advanced industrial countries are republics (or states without monarchs). Some countries have parliamentary governments that can fall if a few small parties organize a coalition against the ruling party; other systems are presidential, and rely on citizens directly electing their president at set times. But even though the most populous country in the world is ruled by a collective dictator (the central committee of the Communist Party of China), by and large, there is a great deal of agreement amongst the citizens of the world — including millions of Chinese citizens — on the principles of the rule of law, and accountability is a key such principle.

The rule of law also implies that rulers and government officials are all subject to the same laws as citizens — that is, nobody is above the law. When the Pakistani lawyers took to the streets, they did so because the president wanted to change the constitution so that he could serve a third term, and he knew the Pakistani high court would not approve this. Standing up for the fired chief justice was thus standing up for the principle that no person, even if elected president, can manipulate the legal system for his or her own benefit.

A closely related principle of the rule of law is that everyone is entitled to what US law calls the equal protection of the law. In other words, laws have to be applicable to everyone and be administered fairly, without favoring particular groups or individuals. When African Americans fought in the 1950s and 1960s against segregation, technically, they were fighting for equal protection. A school district that consigned black children to inferior, separate schools was a breach of the rule of law, it was argued, even if state legislatures had put the system in place by passing laws. The lawyers’ arguments had to try to find some text in the American Constitution to use as a weapon in the court cases. This was not easy since the Constitution had been ratified at a time when slavery was perfectly legal. But by using the same principles of fairness and accountability that people in other countries were using to attack unjust political and legal systems, they were able to persuade a sufficient number of judges and legislators that equal protection did not mean treating all African Americans equally, but rather treating all Americans equally. The basic principle here was fairness.

Fairness usually involves treating everyone equally, but sometimes fairness requires taking different needs and different resources into consideration. For example, income taxes are fairer than flat, arithmetically equal per-head taxes.

Together, accountability, fairness and the principle that nobody is above the law since the law applies to all equally make up the core of the rule of law. Citizens opposing government abuses of power care enough about the rule of law to put their bodies on the line for these seemingly abstract principles. From Alabama in the 1960s to Pakistan and Tibet in 2008, citizens really do care about the rule of law. And governments everywhere live in fear of being criticized by Amnesty International and other non-governmental organizations for human rights abuses and other breaches of the principles of law.

Why does the rule of law matter so much to so many people? It matters in part because injustice and oppression are all too common, all too visible, and most people know we need to be vigilant to oppose them or prevent their return. Even citizens of stable democracies, people who have not had to fight personally to establish accountable governments, can read in their history books about the dreadful injustices committed by their governments in the not-so-distant past — the genocide of aboriginal peoples in North America, for example, or the injustices wreaked on Africans and Asians by European colonial powers, with legal impunity, up until the 1960s.

But the rule of law also matters at a more personal, emotional level. Utopianism is not in fashion in the twenty-first century, but most people are moved not only by a dislike of nasty injustices but by a positive vision of just communities. We often experience fairness, accountability and justice only on a micro-scale — in a community group, in dealing with a government official who turns out to be surprisingly fair, or in other very small settings. But while citizens everywhere are skeptical about politicians and governments, law as such, the principles of law, still command not just respect but passion. Soldiers who are sent on peacekeeping missions do not die for any government. They die for the principles of fairness and accountability. Citizens who spend thousands of volunteer hours fighting to obtain laws that will preserve the environment are not fighting just for one specific law. They are fighting to make governments accountable to their people and for the broader principle of our responsibility to nature and to future generations.

That laws matter a great deal is fairly obvious, if only because all of us have to deal with parking tickets, misleading contracts, legal obligations to pay taxes, unpleasant officials, and any number of other embodiments of the laws of our country on an everyday basis. Each day every citizen living in a market economy interacts with law dozens of times. But few of these laws really go to the heart of what it is to live in a community. In the end, the citizens of the world care more about the rule of law than about particular laws — and rightly so. There are many crises that demand attention in today’s world, and all of them require some kind of law, some legal tools. From global climate change to the persistence of racial inequality, none of the world’s pressing problems will be adequately addressed unless governments are held accountable to their citizens by their citizens, and are made to pass laws that treat everyone