In the West, we tend to locate our idea of perfect justice skywards. Hence the idea of Heaven. Below that we install priestly interpreters, Moses, Jesus in his human iteration, judges and other such arbiters sitting above us on the dais, but also the “reasonable person” or pater familias of civil law (the caring parent), the more perfect standard by which we judge human conduct. At level three is the ordinary world of experience, where most of us go about our business. At the bottom is the underworld, the locus of sin, crime, evil, and Hell.
As I outline in The Structures of Law and Literature, this is the basic Northrop Fryegian landscape of all our culture, including our law. Sometimes it gets turned on its head, which presumably is the subtext of what commentators are saying about the election of Donald Trump – the evil clown’s revenge, Berlusconi point two, with a bigger army – as U.S. president. The paradigm turns Orwellian, with darkness on top, the world of experience just below in the constant dusk, and so on. Language is twisted as a matter of politics so that the lie is normalized: Hate is love (with Trumpery, of country, of one’s race…), war is peace (as a supposed instrument of how we pacify), ignorance is strength. The populace is kept off-balance and under control by continuous fear-mongering and war, class versus class, peoples vs. peoples.
Of course there is shifting and blurring at the boundaries. The reasonable person, Moses, the human Christ, all have a foot in our daily world, in their own rarified realms, and they climb to that mountaintop interface between us and Heaven, to commune with perfect justice. (This is where justice is the end of law, where we move back to a perfected Eden in “the next world.” Martin Luther King, Jr., uses this idea, equating himself with Moses in his “I have been to the mountaintop” speech.). At the lower levels, we find the moral outlaw, such as Robin Hood or Quentin Tarentino’s “Inglorious Basterds,” TV’s “The Fonz,” Arlo Guthrie reporting to the military draft. These are self-appointed revolutionaries who work outside Establishment law to “fight the good fight” for smaller groups, the oppressed, against unjust establishments and often unjust laws. Sometimes they have a social point, but the smaller the group, the more the focus narrows toward the cult and away from social conscience.
Until we reach the charming rogues, selfish people who lack a moral compass or have a broken one but who can be rebelliously attractive. Generally, they do not wreak serious harm. A notorious example is Shakespeare’s Falstaff, and you find them a lot in popular culture and song (think, even, of Bonnie and Clyde). Toronto Mayor Rob Ford was charming-ish, sometimes (but only –ish), in this way. For many people, so is Mr. Trump, although given his calculation he is loathsome where Rob Ford was ignorant-pathetic and occasionally well-meaning. That is, Mr. Trump enjoys strolling on the dark side, deliberately casting a deep shadow over the mountaintop and any pretense of charm.* And now he has the office for it.
Probably even for supporters of these politicians, they are not so much charming as serviceable, a poke in the eye to the rest of us, who they believe lord it over them. So what will law and justice look like under this topsy-turvy Trump presidency? It seems already clear that Mr. Trump won’t be able to accomplish, or even want to accomplish, much of what he has provocatively promised (so as to exploit mass fear and loathing) – banning Muslims from travelling to the U.S., deporting 18,000 “aliens,” building a free wall across the southern border, prosecuting Hillary Clinton. His ravings on international relations mostly are non-starters, it seems, although he probably will succeed at trade protectionism and imperialistic militarism.
And there is a good chance he will manage to overturn Roe v. Wade, the basis for abortion-on-demand in U.S. law. The conservative element on the U.S. Supreme Court has had several bashes at this already, narrowing Roe’s impact but failing to overturn it mostly because Republican appointments such as Sandra Day O’Connor didn’t fall into line. It looks like, during the next few years, Trump will have as many as four opportunities to appoint high court justices sympathetic to his views on such matters. And that, as they say, will do the trick.
No doubt such a court will be similarly cool, at law, to LGBT interests. Black lives won’t matter as much as they should, which is to say I, for one, don’t see a brake pedal on the downhill bandwagon to militarize civilian police forces, materially and conceptually. And unionists likely will be sorry that they abandoned the Democrats, particularly in Wisconsin, with its own anti-labour government.
Of course it was a deeply cynical lie to claim that a Hillary Clinton administration could have repealed the second amendment (the right of militias to bear arms, interpreted irrationally in recent years to stretch to the individual right of possessing military-grade weapons), and beyond despicable to threaten her with “the second amendment people.” (How is it that many characterize this arguably criminal incitement, coupled with his regular endorsement of violence against his political opponents, as just another There he goes again?) But, after Sandy Hook, the Aurora and San Bernardino shootings, Columbine, the Trayvon Martin debacle, it is hard to see how the gun lobby can get much stronger, albeit its capacity for brutal lunacy seems infinite. Heaven help us, indeed.
When Barack Obama ran against Hillary Clinton in the primaries of 2008, I supported Ms. Clinton, writing (in The Lawyers Weekly) that Mr. Obama couldn’t possibly live up to his captivating rhetoric and the expectations it created. I amended his campaign slogan to “Yes, but can we?” And though I seem to have been right, for all he has been through (including his failings, such as not closing down the Guantanamo prison, failing to spur gun regulation), he is persistently a compassionate, intelligent, indeed lovable idealist. He’s a true pater familias of honour and principle, a role model who, more often than not, has done his country proud. President Obama’s light will shine all the more brightly in the days ahead, if only we can see it at the end of the tunnel
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