Notes

I recently subscribed to The Green Bag, subtitled “An Entertaining Journal of Law.” Having read through most of the Winter 2009 edition (the only one I’ve received so far), I’m not sure the word “entertaining” usefully describes this journal, but the contents are relatively light and they manifest a sense of wit that other journals lack. Reading a few more editions will probably make up my mind.

One of the more interesting parts of the Winter 2009 edition is its reproduction of the first issue of Journal of Law, published in Philadelphia, July 7, 1830. The first item in the Journal appears to have been an explanation for its publication, including the following paragraph:

It is always important that the inhabitants of a country should possess a general knowledge of the laws by which they are governed, and especially of those regulations which affect them in the pursuit and transaction of their ordinary business. In the United States, where the people exercise so controlling an influence on legislation, it is emphatically necessary that they should be, to the greatest attainable extent, instructed in the philosophy of general jurisprudence, and in the state and leading principles of our own. Unless such instruction be widely diffused, what is good in our system cannot be secure from innovation; what is evil cannot be properly amended.

After 179 years, we still have a need for greater public understanding of the law and the means of its creation, or “the philosophy of general jurisprudence.” Instead of a belief that this is a society ruled by law, which is by definition shared, consensual, and reciprocal, our culture seems to be dominated by a belief in what can probably only inaccurately be called “justice,” thought not in the universal sense. We like vengeance, retribution, comeuppance, and “payback.” We like “zero-sum games,” with spectacular conflicts resulting in both winners and losers. We like “good guys” and “bad guys,” where the bad guys are always bad and the good guys never have to think much about the consequences of their actions: if you’re a “good guy,” then whatever you do must be “good” by definition, right?

But recognizing the rule of law means understanding that actions, rules, and consequences—conduct, laws, and remedies—rely on broad if not universal consent to governance that benefits everyone, not just a few. Enforcement of law should not be an act of vengeance, but a manifestation of our disapproval of vengeance in favor of order. Criminal prosecution and punishment, for example, lie in the hands of the government precisely because we want to address disruptive conduct in an orderly way, without leaving citizens to their own retributive devices. Civil suits, when they happen, should remind us that both sides must consent to orderliness of the system before their submission to the court means anything.

Instead of this, however, we play the law like a game, a weapon whose “technicalities” and “loopholes” can be deployed against our enemies. Just look at the whole same-sex marriage battle here in California. The “people,” so the Legislature created “registered domestic partnership” and cleverly just referred to the provisions of the Family Code relating to marital property and dissolution. Then supporters of same-sex marriage said that violated equal protection and the California Supreme Court agreed. So opponents of same-sex marriage organized a campaign to amend the state constitution because an act of the “people” would, they hoped, go over the Court’s head, so to speak. Then the opponents filed a lawsuit and said the amendment was a revision and ought to be thrown out, while the state Attorney General said the amendment was itself unconstitutional. People chant in the streets, hold rallies, verbally and physically abuse each other, and generally act like a bunch of idiots. Opponents of same-sex marriage engage in what can fairly be called “fearmongering,” while supporters offer little improvement on the technique, sticking intead with repeated chants and slogans. What is missing from this process? How about a discussion of substantive issues? How about some reasoned discourse about the specific reasons why allowing same-sex couples to get married would or would not be good for the state, with specific reasons on both sides? How about something relating to legitimate issues of public policy, instead of personal feelings or beliefs, anecdotal heartstring-tugging, and soundbites?

And the talking heads and pundits get on the airwaves and use the dispute as an opportunity to give Californians a “civics lesson,” or some such nonsense. No, this is not a civics lesson. It is a lesson in gamesmanship. Californians on both sides have demonstrated that civics and law mean almost nothing to them, except that they can be re-purposed as clubs to beat each other over the head.

What will it take for people to learn their lessons?