Law in Contemporary Society

Underneath the Mythology

The affluence of the rich excites the indignation of the poor

Our Institutions

The Yes Men are culture jammers who, posing as World Trade Organization officials, presented the “WTO’s plan” for global trade to a roomful of academics. It involved recycling food products in order to reuse their nutrients, and in a simple process convert the waste back into food for third world countries. One woman said she was from a so-called third world country, and she was offended. Another man said, “You’re talking about recycling sh-t.”

On the twentieth anniversary of the Bhopal Disaster, the Yes Men appeared on BBC World News, posing as representatives of Dow Chemical. After accepting full responsibility for the disaster, they promised that Dow would invest $12 billion to pay for medical care for those affected, clean up the site, and fund research to look into the hazards of other Dow products and prevent similar accidents. The real Dow Chemical rushed out a press release within hours, denying the statements.

In "culture jamming," the basic idea is to shock the unconscious thought process one undergoes while receiving an institutional message, such as authority programming, logos and advertisements, and other branding messages. The Dow Chemical idea works because it forces us to confront our ideas about how institutions could or should function, and how they actually do. What do we expect from our institutions, and what could we? The WTO piece shows us how far authority can go. Deftly aping officialspeak, the performers slowly push the audience farther and farther, revealing increasingly outlandish perspectives on humanity, until finally, the people cry foul.

I thought it was actually just a bunch of desperate comedians ripping off Jonathan Swift. I guess 21st century "culture jamming" is 18th century pamphleteering with more jargon and less literature.


What can we expect

Folklore of the American Celebrity

The Founding Fathers were the first American Celebrities,

I don't think that's a very insightful approach to early national culture. You might want to look at the first chapter of Robert Ferguson's Law and Letters in American Culture, Michael Kammen's Machine That Would Go Of Itself and Gordon Wood's Radicalism of the American Revolution for three very different approaches to making some better and more productive conceptions.

and their images and personas continue to move units in the commercial and political spheres today. Inseparable from them are pre-Manifest Destiny era ideas of self-righteousness and entitlement,

Is that "Federalism" or something else? I don't understand.

Self-righteousness >> that they could be the mouthpiece for all men, Entitlement >> that they had any claim to North American land whatsoever

and institutionalized racism, which both permeated the roots of American property law and the Constitution.

I think you mean "and slavery".
No I meant institutionalized racism, because slavery in the U.S. was just one example of it.

In 1915, the American Celebrity had changed. Early that year, The Birth of a Nation debuted to soaring reviews and box office records. Arnold would say Americans look to a single event, a sudden birth of a nation. Perhaps, but surely new heroes are born. In 1915, industry was transforming the world, and men like Thomas Edison and Henry Ford were public figures of the day. Teddy Roosevelt’s U.S. didn’t want conflict hurting production, and it would take two years after the sinking of the Lusitania for the U.S. to enter the war.

This makes it sound as though Theodore Roosevelt was in favor of peace in order to maintain production. That's wrong. TR left office in March 1909, and in 1912 he sought reelection to the Presidency against his own chosen successor, WH Taft, and Woodrow Wilson, as the candidate of the Bull Moose Party. He was not, needless to say, the winner. From the moment Germany invaded France and Belgium in 1914, TR began screaming for war, using it as an issue against Wilson, but more deeply from his inherent militarism and belief in society at its highest mobilized and ordered around by its government. Leaders like TR became altogether too common later in the 20th century: he was a man before his time. Wilson, on the other hand, fought his reelection campaign in 1916 on a peace platform, then immediately committed America to the war effort once the campaign was over.

Conflict persisted domestically, in large part spurred on by proliferations of new ideologies, but still underpinned with old ones. The film, Birth of a Nation, was a veritable celebration of violence, racism and supremacism.


Give us your poor, your tired

Without institutional support, racism is bad for business. Business owners don’t want their train conductors wasting time checking people’s race if they don’t have to.

I don't understand this comment. You think Jim Crow was a system of burdensome expense to railroad companies, all that having to separate the white people from the Negroes? You seem to be assuming that separation was created solely in a bureaucratic way, by passport-checking.

Yes I'm saying Jim Crow was a burdensome system that created overlap and waste. I'm not saying that separation was created solely in a bureaucratic way but simply that besides other types of cost, bureaucratic enforcement has monetary costs, and unless you believe in its goals, or in appeasement of those who do, there doesn't seem to be much reason to pay those costs.

But that doesn’t mean people can or will forget about it. Arnold says new organizations rise to fill the gaps left by an older order. Hyper-exploitation today “happens” to be racist; 40% of Hispanics over 25 do not have a high school diploma, and the same percentage of prisoners in the U.S. are Black. But that’s a coincidence.

It isn't a coincidence, but you haven't said what it is.

Sorry, guess I should reorganize it a bit, I meant to at least imply its caused by ingrained racism within our institutions (the part you said doesn't relate to anything below).

New York recently raised $260 million by requiring citizens to purchase new license plates, which were made by prisoners paid $0.42 an hour.

But the traditional objectors to prison industries are unions, which believe that convict competition shouldn't be allowed to drive down wages. That's pointless in an economy were NY might otherwise buy license plates made in China by people who, as free workers, make about the same.

The overlap of crime, poverty, education deprivation and lack of job opportunities with race isn’t inevitable. It’s the clear result of actions spurred by words and propelled by ideologies ingrained within the institutions of our country.

Undoubtedly. But what relates that to the surrounding argument?

The Taney court was and is very much vilified, and probably with good reason. But perhaps Taney the individual is really a victim, merely the personification of an institution charged with jealously guarding a mythological power structure.

Perhaps? Is this a speculation based on nothing whatever, or are you actually suggesting that Roger Brooke Taney the actual person is somehow a victim of personifying the Supreme Court? His biographer, Carl Brent Swisher, also the author of a ponderous but thoughtful volume of the Holmes Devise History of the Supreme Court on his term as Chief Justice, and of a book on Scott v. Sandford, might have been useful to consult. Look where you will, you find a vehement racist and no victim of anything. Among the most powerful and canny of the politicians around Jackson, more responsible than anyone other than Jackson for the Bank War, he stands before you in Scott as the intellectual center of proslavery Democracy.

Maybe he was indeed a vehement racist and not a victim of anything, but even if that's completely accurate, what if it wasn't? Isn't that just conventional wisdom, "things long past which come to us only in books"? Besides I want to know why we heap all the praise or villainy on someone like Taney who presents widely held viewpoints of the day. He didn't create those ideas he just had the institutional power behind him when he wrote about them. I don't think it makes any more sense to make him the "bad guy" even if he did believe in it. My concern is much more with the court as an institution that propagated many of those same views with or without Taney.

In Dred Scot, the Taney Court, after pages of exasperatingly explaining how Blacks are historically inferior, rests finally on the authority of the Constitution. Look, it says. Racism is part of our ethos, our creed, our mythology. Its in our courts, its in our laws, its in our constitution of nationhood. And he was right, it was. Racism is one of the pillars of early American property law. It and other types of status discrimination based on gender, material wealth, and political influence form an overlapping foundation for the law which facilitated the most fundamental wealth redistribution in North America, that is, the redistribution of land from native "occupiers" to wealthy white male land owners. This legacy's effect on contemporary societal structures should be self-evident*.

If your proposition is that something about the nature of the United States required either that Scott not be entitled to present his claim to freedom on his own behalf in the federal courts, or made the Missouri Compromise unconstitutional, what was that something? Racism? Are you seriously contending that another outcome of the legal issues in Scott was impossible because this was a racist empire? Then why was anybody dissenting? And what was the Republican Party complaining about? Not to mention John Brown and Henry David Thoreau?

Things long past which come to us only in books

Statesmen today, like priests of the past, search for universal truth

But racism is over. People will start declaring it soon.

Not very likely unless people are suddenly grown very stupid.

Look at Obama, Sotomayor. New heroes, new mythology. In the end, Arnold submits to the customs of the tribe. Progress cannot be made without a progression of the mythology. But there’s something deeper than creeds and folklore. It’s the same thing which, for Frank, will never allow the law to be free of legal magic. It’s the human element which both constrains and frees us.

This paragraph doesn't make any sense to me. I would appreciate a restatement of its point.

Arnold admits that new organizations fill old roles. Progression of mythology takes place atop a foundation of stable underpinnings. Old roots wither and break or grow and prosper as the cultural landscape of the nation shifts, but veritable trunks still exist. Archetypes present continuing motifs from which fresh perspectives can carve new ideas, but the tumultuousness of creeds and mythologies throughout history have more in common than not. An authority exercises control, while an institution that embodies it simultaneously provides justification. This is Rome, this is the Catholic Church, the British Empire. This is how the Native Americans lost their land and Blacks became slaves. Like Taney, the individual is lost in the unconsciousness of the institution, but can choose to perpetuate it or not. Humanity is always the common element, and it will continue to check authority and underpin the mythology. It should not be allowed, however, to be appropriated as the personification of a justifying institution, and therefore become malleable to authority, as has been done with Kings and other Chieftains in countless societies, and with Corporations, Courts and the People in our own.

I don't understand what this means. I think most of the beginning asserts the constancy of change in society. I don't know what the second part means, because the reference to Taney seems wrong to me and everything else in the list is supposedly like that and so it's all very confusing. Could you just put what you mean in a sentence?



"Wherever there is great property there is great inequality. For one very rich man there must be at least five hundred poor, and the affluence of the few supposes the indigence of the many. The affluence of the rich excites the indignation of the poor, who are often both driven by want, and prompted by envy, to invade his possessions ... The appropriation of herds and flocks which introduced an inequality of fortune was that which first gave rise to regular government. Till there be property there can be no government, the very end of which is to secure wealth, and to defend the rich from the poor" - Adam Smith

"The origins of property rights in the United States are rooted in racial domination... The hyper-exploitation of Black labor was accomplished by treating Black people themselves as objects of property. Race and property were thus conflated by establishing a form of property contingent on race -only Blacks were subjugated as slaves and treated as property. Similarly, the conquest, removal, and extermination of Native American life and culture were ratified by conferring and acknowledging the property rights of whites in Native American land. Only white possession and occupation of land was validated and therefore privileged as a basis for property rights." - Cheryl Harris

"Since every history book is a 'conjectural reconstruction of the past' Pirenne concludes that, due to the differences among historians, 'history is a conjectural science, or in other words, a subjective science.' 'How,' asked the English historian Froude, 'can we talk of a science in things long past which come to us only in books?'" - Jerome Frank


*If this is not self-evident to you, sorry. I don't have space in my word count to describe it here

This is all very cute, but you'd have space if you made a disciplined argument, which would require an outline which would actually show a structure instead of striking literary poses. You're trying for high style before the skeleton is roughed out. We need to back up a couple of steps and start with a clear expression of the idea to be communicated, the sequence necessary to explain what it is, the consequences that follow from it and the conclusion to which it brings us. That will make it possible, without losing much when we lose the wrong or misleading history, etc., to put some of the style here to work on a sounder footing.

Thanks for the feedback. I wish more profs did something like this.


Webs Webs

r9 - 13 Jan 2012 - 23:14:08 - IanSullivan
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