Since going to law school, I’ve been told more times than I can count that I’m “too idealistic.”  My belief in “what the law should be” is considered by many to be unrealistic, primarily because I believe the law should be what it says it is.

Well that and, unlike Justices Scalia or Thomas, I’m actually an Originalist.

At times, this has lead me to disparage; at other times, to despair.

The fact is that there is a duality to the law that not enough, if any, ever see, let alone experience.

Brian Tannebaum of Miami writes about a recent California article titled “California Bar reviewing 130 prosecutors for possible disciplinary action.” He notes, almost certainly correctly, that little will come of this.  The reason, however, goes unspoken.

Scott Greenfield gets us a little closer to seeing the reason, when he references Radley Balko’s Reason article and riffs off a comment from Balko’s blog to give us “Not A Bug, But A Feature.”

But, ironically, it’s this article from The China Post that most clearly brings the point home:  What we have here are two different systems masquerading as one.  What we have here is one system for those in power and another system for those who are out of power.  The latter, naturally, includes those who challenge power, since they are almost always out of power, or they will be the moment their challenges “go too far.”

Again, the Wikileaks controversy provides the most clear-cut example.  Julian Assange, described as a founder of Wikileaks, is also described as being “on the run.”

You don’t cross those in power if you have any aspirations of living a peaceful life somewhere in the world they control. They operate, generally, outside the system.  Hell, they use the system as a tool to accomplish their goals.

Instrumentalism is the view of law as merely a technique or a means to implement policy goals.  To the instrumentalist, law is no more than just a particular technique.  It is a product of policy that is used in order to implement policy, in particular to achieve economic and social ends…. Consequently, the law can and must be changed at any moment to serve policy goals.  Existing law constantly needs revision in response to perceived societal needs.  The instrumentalist regards law as subservient to policy.  Law, especially statute law, is merely a device to steer society.  Central government uses legislation to determine the direction of society, and to implement policies. ^[1]Soeteman, ed., Pluralism and Law (2001) vol. 2 (State, Nation, Community, Civil Society), p. 34.

This instrumentalist view of law is different from the view upon which the United States of America was founded.  Our Founders said,

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…. ^[2]Declaration of Independence (1776), Preamble.

In other words, there is a body of Law — the capitalization was often used in order to emphasize this fact — which was independent of, and had primacy over, what those in power (e.g., governments) might want to do.

Even when the government was actually believed to be “we, the People,” and those were not just empty words meant to make us feel all warm and fuzzy, the societal goals of that government were limited.  Certain things were just off-limits.

Torture of individuals, for example, to achieve a greater good, as if anything good can truly come of debasing ourselves so.  Killing people, at least without Due Process of Law.  Allowing convictions because experts cops told the jury, “Yes, in my opinion, the person sitting over there by the defense attorney is guilty.” ^[3]They aren’t experts.  Experts don’t routinely create websites where everyone is posting questions saying, “Hey, I never heard of this thing.  Can someone help me come up with an explanation for what it means?”  Gang cops do, though: http://www.gangcopsonline.com/.  I particularly like the part where you have to join if you want to read the discussions.  ‘Cause experts always hide their work from the rest of the world.

Today, these things are routine.  Mundane.  Banal.

The legal system has become unmoored from the Law.  Instrumentalists reign supreme — and on the Supreme Courts of our once-great Nation.  The Nation of which it was once said “that in America the law is king.”

Thanks to the instrumentalists who have gained control of government, that king’s rule in America has become, as James Bovard noted, “a parody of what the Founding Fathers [sic] understood by that term.”

This is why “the law” can so easily change when it appears to apply to the wrong people.  This is why if two people on one occasion — or one person on two separate occasions — claiming to be members of the XYZ gang commit a crime, they can receive 24-year sentences for what are essentially fist-fights, but if five, six, or fifty people who happen to be members of the XYZ Police Department do the same thing, they can’t. ^[4]People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324 [109 Cal.Rptr.2d 851].  It’s only that way because the police — sanctioned by the courts — say so.

Can’t pay your bills?  Tough.  “The law” — actually a bank may move without even relying upon the law — requires that you lose your house.  The banks can’t pay their bills?  “The law” will change.  And, one way or another, you will pay for it. ^[5]And to think, it wouldn’t be that much harder if we just decided to pay off everyone’s mortgage, so we’d actually get something for it!  See http://www.bloomberg.com/apps/news?sid=aGq2B3XeGKok&pid=newsarchive. (Edit 01/2016: Link broken.

The Law, which was once meant “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,” no longer does any of that. ^[6]See the Preamble to the United States Constitution — and the whole darned Constitution! — here: http://www.archives.gov/exhibits/charters/constitution_transcript.html.

In its place, we have two separate and fairly distinct systems: one for those in power and one for everyone else.  The only time it works against those in power is when the instrumentalists can’t change things quickly enough.