By: Isabel Niemer
Edited By: alexandra dickerman and emily yang
Many of the major issues in law can be traced back to the reason for its existence— human nature. Law is distinctly human, leading its problems to reflect the problems of humans on an individual and a group scale. In On the Genealogy of Morality, Nietzsche hypothesizes that human nature is oriented towards wanting power.[1] Nietzsche explains that the fulfillment of this innate desire is what separates the aristocrats of society from the common folk. Whether or not you believe that this desire for power is morally sound, the desire certainly exists for many. This unquenchable thirst for power and consequential separation of the powerful from the powerless can be seen in the inequality of the judgments of our laws. This unequal footing leads to our society falling short of justice, which I believe is the biggest legal issue of today.
The dichotomy of the powerful versus the powerless can be seen in both the social construction of race and interest convergence. The movement in and out of race categories corresponds with the changing of power dynamics. When certain people are grouped into a more powerful race, they enjoy the privileges of that race. In law, this could mean fewer convictions, more sympathy from jurors, or less surveillance. These advantages are what keep racism baked into society. The powerful are the only ones who can change the laws and systems, but they have disincentives to make these changes. Inequality is easy to brush over when power is at stake. Additionally, this racism that is prevalent in law has ramifications beyond individual judgments. Higher criminalization of Black men leads to higher surveillance of Black neighborhoods, and this pattern reinforces itself.[2] It destroys Black families and communities, which reinforces the power of white people in American society.
Racism can also impact justice through the juror selection process, which can be seen in the case of Andre Thomas.[3] Thomas, a Black man, killed his white wife and their two children in a schizophrenic break and subsequently gouged his eyes out and attempted to kill himself. Three of the selected jurors for Thomas’ case were openly against interracial marriage, and Thomas has been on death row since his conviction. As can be seen in this case and others, the presence of racist inclinations, which ultimately stem from power dynamics, can lead to the difference between life or death.
Another example of the unequal footing of law can be found in legal disputes involving big corporations and smaller entities. In theory, the courtroom should be an equal playing field for both parties involved. In practice, though, the party with the most power often has a much greater chance of winning these disputes.[4] With increased power comes increased intelligence, familiarity with the court system, and rules tailored to one’s particular needs. This inequality leads to judgments skewing heavily in favor of big corporations, further reinforcing their power and impeding justice.
For example, when Mattel’s toys were found to have lead in them, Mattel lobbied for Congress to impose expensive lead testing upon all toymakers.[5] While this seemed like a good deed, Mattel really wanted to push small toymakers out of the market. Congress then stipulated that these requirements would not apply to toymakers that make less than 7,500 toys per year. This stipulation protected small toymakers, but still ultimately helped Mattel by discouraging toymakers from growing their business and becoming serious competitors.
In situations where the legal system cannot adequately tackle injustice, power imbalances can become further normalized without reprimand. One example lies in sexual harassment cases; because there is not often sufficient evidence or incentive to file these cases, 99.8% of people who experience sexual harassment in the workplace never do.[6] This leads to little incentive for those in power to follow the law. The power imbalance between bosses and workers thus is often heightened to illegal levels, and as a result, justice will likely never be achieved until sexual harassment in the workforce is addressed properly.
Subjectivity is especially present in sexual harassment cases, where judges are often able to mold what is considered “severe and pervasive” and even throw out cases. For example, a court dismissed a sexual harassment case where a boss threatened to rape a worker multiple times and talked about his genitals.[7] The court reasoned because these comments occurred over a 10 day period, they could not classify the harassment as “pervasive.” We have to check the power of both bosses and judges to help those who have been sexually harassed get the justice they deserve.
To keep human nature in law, subjectivity is inevitable. This subjectivity allows for nuance in judgments, which is often necessary to come to the right conclusion in cases. However, many factors play a role in preventing objectivity, which is necessary for true justice, in judgments. Many of these hindrances to objectivity stem from imbalances of power. This power arises from human nature, so it would be massively overambitious to try to eliminate power dynamics altogether. But like us, law should attempt to right its wrongs, minimize missteps, and continuously strive for self-improvement.
Notes:
1. Friedrich Nietzsche, Kieth Ansell-Pearson, and Carol Diethe, ‘On the Genealogy of Morality’ and Other Writings, (Cambridge: Cambridge University Press, 2017).
2. William J. Chambliss, “Policing the Ghetto Underclass: The Politics of Law and Law Enforcement,” Social Problems 41, no. 2 (May 1994): 177-94.
3. Ella Wiley, “How Racism in the Courtroom Produces Wrongful Convictions and Mass Incarceration,” Legal Defense Fund, July 20, 2022, https://www.naacpldf.org/judicial-process-failures/.
4. Marc Galanter, “Why the ‘Haves’ Come out Ahead: Speculations on the Limits of Legal Change,” Law & Society Review 9, no. 1 (Autumn, 1974): 95-160.
5. John Stossel, “How Big Business Uses Big Government to Kill Competition,” Reason, July 7, 2021, https://reason.com/2021/07/07/how-big-business uses-big-government-to-kill-competition/.
6. Carly McCann, Donald Tomaskovic-Devey, & M.V. Lee Badgett, “Employer’s Responses to Sexual Harassment”, UMass Amherst, https://www.umass.edu/employmentequity/employers-responses-sexual-harassment.
7. Yuki Noguchi, “Sexual Harassment Cases Often Rejected by Courts,” NPR, November 28, 2017, https://www.npr.org/2017/11/28/565743374/sexual harassment-cases-often-rejected-by-courts.
BIBLIOGRAPHY:
Chambliss, William J. “Policing the Ghetto Underclass: The Politics of Law and Law Enforcement.” Social Problems 41, no. 2 (1994): 177–94. https://doi.org/10.2307/3096929.
Galanter, Marc. “Why the ‘Haves’ Come out Ahead: Speculations on the Limits of Legal Change.” Law & Society Review 9, no. 1 (1974): 95–160. https://doi.org/10.2307/3053023.
McCann, Carly, Donald Tomaskovic-Devey, and M.V. Lee Badgett. “Employer’s Responses to Sexual Harassment”, UMass Amherst, https://www.umass.edu/employmentequity/employers-responses-sexual-harassment.
Nietzsche, Friedrich, Keith Ansell-Pearson, and Carol Diethe. 'On the Genealogy of Morality' and Other Writings. Cambridge: Cambridge University Press, 2017.
Noguchi, Yuki. “Sexual Harassment Cases Often Rejected by Courts.” NPR, November 28, 2017. https://www.npr.org/2017/11/28/565743374/sexual-harassment-cases-often rejected-by-courts.
Stossel, John. “How Big Business Uses Big Government to Kill Competition.” Reason.com, July 7, 2021. https://reason.com/2021/07/07/how-big-business-uses-big-government-to-kill competition/.
Wiley, Ella. “How Racism in the Courtroom Produces Wrongful Convictions and Mass Incarceration.” Legal Defense Fund, November 22, 2022. https://www.naacpldf.org/ judicial-process-failures/.
