I have a problem with the Ferguson decision, but its not the problem you think. One way to inflect the Grand Jury’s decision not to press charges against a police officer who shoots and kills an unarmed young man is to say that it is a miscarriage of justice; that no one should ever lose her or his life to the use of force by police. And, did the laws on the books agree with you, then every lethal use of force by armed police would, by definition, constitute a miscarriage of justice.
Nevertheless, as we know or should know, this is not how the law reads; not in the United States and not in most states. Justice, it is held, can well be served even when a police officer uses lethal force against a civilian, even when that civilian is unarmed, even when that civilian is a youth. And in this case I would contend that the law governing the case is wrong and needs to be overturned. In this case we would direct our attention toward those making the law and challenge their authority to make laws that are so shaped as to allow police officers to legally shoot and kill unarmed youth.
A Facebook post shows two Saint Louis police officers, one an African American, the other a European American. One used non-lethal force, doesn’t arrest the suspect, doesn’t file a report, ends up driving the suspect home. The other uses lethal force and doesn’t file a report. Dawon Gore, the African American is charged with assault and is suspended without pay; Darren Wilson, the European American is suspended with pay no charges are filed, and he is exonerated by a Grand Jury.
But, again, so long as the law is written in such a way as to leave room for both of these outcomes, we need not conclude that either is a miscarriage of justice. Rather, we might instead conclude that the laws need to be changed.
Laws are written, debated, and passed (or defeated) by legislators. To be sure, they are then subject to rulings that may conclude that these laws violate a state’s or even the federal Constitution. But even these appellate rulings are issued by men and women appointed and approved by governors, legislators, and presidents.
Laws are social things. They bend to and are molded by men and women who are interested in their content and in how this content will likely shape the world in which they live. When a law exonerates a European American or condemns an African American we must therefore not jump to the conclusion that it was the Grand Jury or the State Prosecutor who are at fault. For, so long as the legal system itself permits (even demands) this outcome, or so long as the laws leave open such a wide range of outcomes, it is not the individuals who adjudicate these laws who deserve our attention (or at least not them alone), but the laws themselves or, more particularly, their social construction.
Laws acquire their legitimacy from our collective belief that their enforcement yields something like justice. When we collectively deprive laws of this legitimacy, we are in effect announcing our conviction that they should not be enforced — a conviction that will, eventually, find expression in who we elect to approve and enforce our laws.
Thus law is not only social, it is also political. Of course, we knew this already by the treatment President Obama’s nominees for various offices, including judicial offices, have received at the hands of the Republican leadership. In their treatment of the President’s nominees, the Republican leadership is not only challenging the legitimacy of his selections, but is also challenging the social, political, and economic consequences they believe would follow should the President’s nominees be approved.
Still, more than every once in a while, we may be inclined to forget that law is a social, political, and economic creature. Precisely in its most objective, most disinterested, and blind-folded form, the law is always already social, political and economic; and its enforcement is designed to help some while harming others. But his means that when we focus our animus on the individuals who enforce these laws or the systems of justice that apply them, we are liable to overlook the overall systemic character of the injustices they embody; whereas we ought instead to direct our attention to the social, political, and economic character of the system itself.
But, again, our aim would not be to attempt to remove politics or society or economics from the system; as though the only legitimate judge would be something closer to a computer than a human being. Rather would we want to ensure that the politics, society, and economics served by the law also served the interests of the people. Put differently, laws that permit (or guarantee) that so large a percentage of our communities are poorly educated, poorly cared for, poorly housed, poorly clothed, without voices and without hope; such laws are already unjust without having to prove this fact by exonerating the killers of unarmed youth.