Tuesday, July 16, 2013

Is the Law Still Hegemonic?

From Eugene Genovese's history of slavery and slaveholding Roll, Jordan, Roll:
The law acts hegemonically to assure people that their particular consciences can be subordinated—indeed, morally must be subordinated—to the collective judgment of society. It may compel conformity by granting each individual his right of private judgment, but it must deny him the right to take action based on that judgment when in conflict with the general will. Those who would act on their own judgment as against the collective judgment embodied in the law find themselves pressed from the moral question implicit in any particular law to the moral question of obedience to constituted authority. It appears mere egotism and antisocial behavior to attempt to go outside the law unless one is prepared to attack the entire legal system and therefore the consensual framework of the body politic.
The section from which this is taken is actually called "The Hegemonic Function of the Law." Genovese's point in this part of his analysis is to establish how ambiguous and dangerous a world the Old South was for slaves, because there were two systems of law set in place: the legal architecture of the state and the rules and customs of plantation law. "The southern legal system increasingly came to accept an implicit duality: a recognition of the rights of the state over individuals, slave or free, and a recognition of the rights of the slaveholders over their slaves." All well and good from a planter's perspective, except that slaves continually expressed their own humanity, which led to a dilemma: when should the state intervene to exercise its power over individuals and when should it let masters exercise their power over their property... and what if the actions taken in this dual system of laws came into conflict? In other words, what if the state said a slave should be treated in one manner but the slaveholder wished to treat their slave in another? (This ambiguity carried with it the tremendous irony that in the Old South, planters were the state—they comprised the vast majority of elected officials.) Here's what Genovese argued about this dilemma:
Confronted with these painful and contradictory necessities, the slaveholders chose to keep their options open. They erected a legal system the implications of which should have embarrassed them and sometimes did; and then they tried to hold it as a reserve. They repeatedly had to violate their own laws without feeling themselves lawbreakers.
Rereading that today, I am struck by the inversion of the law's function in the contemporary South. In the slave South, the law was established to place restrictions on the actions of individuals, including white masters, but they circumvented or stood outside the reach of the law. White planters made the laws and used them when convenient; they refused to subject themselves to the same laws.

In Florida and other "stand your ground," right wing states, the law now functions to facilitate, not restrict action. These laws no longer curtail the excesses of individual judgment by setting them against the general will—individual judgment and the general will are no longer distinguishable. That is one terrifying result of the Zimmerman case. The hypocrisy in the slave South was that whites operated in violation of the law whenever they chose with impunity. The hypocrisy now is that the aegis of the laws protects whites as they commit horrific acts without much evidence that it protects blacks.

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