THE MYTH OF JUSTICE IN LAW

Some people recently asked me why is it that I don't intend to practice as a lawyer. There's amultitude of reasons why; I don't find the work to be stimulating enough (although the study of the law remains terribly interesting to me), I want to try something new, there's not much money in it, etc. However, tonight I think I've come up with another reason: I've actually lost faith in the law, at least the Western legal system, as a mechanism for achieving justice.

Some of you may know that I'm doing American Constitutional Law as my final unit. As I was reading through cases dealing with the post-Civil War amendments to the Constitution, something struck me. The majority of the judges in the Supreme Court were more concerned with upholding their conception of the federal-state relationship in a republican system of government than they were about the protection of the recently-emancipated African-Americans. For example, the Supreme Court in the "Civil Rights Cases" pronounced as unconstitutional an Act of Congress making it an offence for anyone to discriminate on the basis of race with regards to the use of public facilities such as inns and other places of public entertainment: the judges reasoned that Congress had no power to pass such an Act because the 14th Amendment, which was argued to be the clause empowering Congress to pass such an Act, only dealt with discrimination attributable to State action, and not private discrimination. In doing so, the Supreme Court effectively endorsed discriminatory action, so long as it remained a private matter.

This kind of hair-splitting arguments can also be seen in the case of Plessy v Ferguson, where the Supreme Court held that the equal treatment clause in the 14th Amendment did not impute a positive obligation to mix the two races together: the provision of separate but equal facilities is not an infringement of the 14th Amendment equal treatment clause. This decision allowed the states to relegate African-Americans to an inferior status, consistent with their then racist outlook. Thus the Amendments designed to secure the rights of the emancipated slaves were read in as strict a manner as possible, defeating their purpose.

Some may say, "The law is not about justice. It is about certainty." In relation to the Western legal system, this is true, but only to a certain extent. The law, as I see it, is not about achieving justice, nor is it about certainty, not all the time anyway. Sometimes, it is about preserving prejudices and promoting the views of the judges, regardless of the wider implications of their decision.

Somebody once wrote, "Judges are law students who mark their own exam answers". I concur completely.

Post-scriptum: the above views do not apply to Justice Harlan, whose dissenting opinion in the Civil Rights Cases and Plessy v Ferguson I whole-heartedly endorse.