Law in Contemporary Society
-- NonaFarahnik - 05 Feb 2010 A few years ago, I read an Anatole France quote that challenged me: "La majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts." Rough translation-- "The law, in its majestic equality, makes no distinction between rich and poor; both are forbidden to sleep under the bridges [of Paris]." By defining the class that commands power as "the owners," our focus remains on the acquisition of wealth and property as the means of control. The France quote reflects the concept that the powerful class manipulates our institutional and legal structures to favor themselves. Examples in our society today abound. Is Eben's "owner" distinction too limiting? We can always have policy arguments about why we might forbid sleeping under bridges, but to what extent do our laws reflect power's goal of maintaining perpetual inequality?

I think that's a great quote. If I understand you correctly, you're making the point that power in our society is not just based on ownership of wealth, but also comes from an ability to manipulate institutions. I think that's true, but that ability to manipulate institutions is often associated with and enhanced by wealth. Not always, though. To paraphrase Marshall Ganz, David sometimes wins. Brown v. Board is an example.

Some other thoughts on the France quote...

I think France’s line is definitely a bon mot, and it highlights how equality before the law can be rendered meaningless by economic inequalities. In Civ Pro last semester, we discussed how disparities between litigants’ resources can affect trial outcomes, despite both sides having the same procedural rules.

But from a functionalist view, I think the law, even if textually majestically equal, is rarely equal in its application. To use Holmes’ terms, I would not predict the public force to fall with equal vigor against rich and poor violators of this or other laws.

An example comes to mind, from our coverage of the Reconstruction amendments in Con Law. Preston Brooks walked up to Charles Sumner, in the US Senate building, and beat him with a cane until he was unconscious. Sumner was injured so badly he couldn't return to the Senate for three years, and Brooks was never arrested. I think a similar assault by a less privileged member of society probably would have been met with significant public force.

Nona, when I read your quote, I immediately thought of this article that I read in the New York Times a few months ago:

Jim Dwyer, Whites Smoke Pot, but Blacks Are Arrested, New York Times, December 22, 2009

While the law may make "no distinction between rich and poor", those who enforce it definitely do. I think you bring up some fascinating questions, and think that in analyzing them, it is important to separate out two distinct groups: (1) those who write the laws and (2) those who enforce them. Both groups have huge impacts on the power structure, and each can cancel the other out - legislators can decriminalize certain offenses and take away the power of law enforcement to use them as an excuse to lock up the poor, or law enforcement can disproportionately enforce laws that apply to the entire population (as in the above article).

Just some food for thought - you brought up some great questions and I'm looking forward to more discussion on this topic.


David, I think that article makes the point well, especially with respect to the role of those tasked with enforcing the law. On the legislative side, a close parallel would be the crack/powder cocaine sentencing disparities. With respect to the enforcers: over the course of law school, I hope to spend time working on the issue of individual prerogative in law enforcement. When I was a sophomore at Duke, two athletes who lived on my floor were indicted for rape. Most people know this story as the Duke Lacrosse Case. The accused were at the mercy of a police force and a prosecutor hell-bent on continuing a case with little justification. In this case, the players were able to hire top-notch counsel, the prosecutor was disbarred, and North Carolina's Attorney General took the unprecedented step of declaring the accused innocent. This case and the attention it garnered was the exception. How many of the people who make up the public force can be checked for unwieldy use of the prerogative our system grants them? For those without money, what is the bulwark against this prerogative?

-- NonaFarahnik - 07 Feb 2010



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r8 - 17 Apr 2010 - 19:05:40 - NonaFarahnik
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