A Response to the clayboyn Thesis titled "The Illusion of Legality."

clayboyn writes:

"while many people believe the legal system is built to protect you, it's actually put in place to control you and offers you no actual protection" (2017.)

The Law
The thesis offered by clayboyn is often debated in some version of the question by sophomore sociology and anthropology students that usually ends in stalemates. First year law students, in similar debates, tend to develop positive conclusions about legal systems, or what one might interchangeably refer to as the law. Seminary students consider the law, particularly, the Mosaic Law of Abrahamic religions, a fundamental basis of a moral society. Perhaps, evolutionists might argue that the law is a behavioral characteristics of most human societies, elaborated by the development of writing, that leads to fitness of the group. The various explanations and justifications for the law that varies from culture to culture based upon the prevailing beliefs, mythological systems, and common social narratives, are merely cognitive exhaust unrelated to social regulation that enhances survival. However, all primates living in groups develop rules and regulations that control individual behavior for the benefit of group cohesion and survival . Humans differ in that they label this behavior. The notion that our human legal systems should benefit individuals over the collective welfare of the group is an idea that is exclusively a characteristic of behaviorally modern humans of the Anthropocene.

The Majority
The force of the law is located in the common knowledge and belief in the law, such that a sufficient majority of people are willing to act against an individual or smaller group in the name of the law. To this extent, clayboyn is correct, the law is serving the society over the individual or the majority over the minority. Yet, when the society succeeds, this tends to be a benefit to the individual. If you don't believe this, simply examine nations that have failed and the attending social disorganization that follows the absence of the rule of law. Observe the individual's welfare in a chaotic society. The great African author Chinua Achebe details a significant case in point in his 1958 book titled, Things Fall Apart.

Democracy
One of the extensive debates of the ancient Greeks is the matter of democracy versus monarchy. Athenian democracy was practiced until the Greeks developed an alternative common narrative: hereditary kingship served the society more efficiently than rulership by the majority. Because we are social animals, as individuals we tend to feel that we, as individuals, cannot succeed unless the society is functioning well. Thus, from the Code of Hamarabi forward, a legal system's primary action is the regulation of society such that the probability of individual protection under the law is increased, although not absolutely guaranteed.

The Individual
It is in the Enlightenment that the six great ideas: truth, beauty, and goodness; justice, equality, and liberty are significantly re-examined, as a matter of enhancing legal systems, to better protect the individual over the collective interests of the state.

American Justice
Those of us educated in the American system, should have some understanding of the U.S. Constitution as a document that reflects the ideals of the Enlightenment and the practical compromises of its application that led to a civil war. The protection of the society versus the protection of the individual, to this day, is in litigation. Because of the American legal system, the very essence of the question clayboyn considers in his thesis is routinely examined across courts at every level throughout the U.S. For example, on July 1, 2017, the ACLU filed suit in the U.S. District Court, titled Salim v Mitchell, wherein on behalf of three plaintiffs, the ACLU is seeking relief for torture inflicted upon detained individuals by programs of the United States government. From this perspective of torture, clayboyn's thesis is well supported; however, I would point out that while the law did not protect these individuals in the first instant because the violations of law against these individuals were committed in secrecy, the law will most likely favor the concerns of the individual over the concerns of the state because the laws against torture are a common accepted narrative of the American people.

Oligarchs
As I examine clayboyn's blog, I am reminded of a quote from Finis Germania by the very erudite thinker Rolf Peter Sieferle:

“There are un-tragic peoples whom history pearls off of like water from a well-polished boot.”

This highly metaphorical quote, taken out of context seems obscure, however, it refers to British and American societies that believe in the common narrative that we, anglophone civilizations, are the modern model of democracy, when in Sieferle's view, we are nothing more than oligarchies. And in this context, Sieferle supports clayboyn's thesis, the law is here to control you and offers little or no protection whatsoever.

Protection Under the Law
From my perspective, the modern American legal system is certainly more dynamic than the Code of Hamarabi. And because our modern legal system is dynamic, it offers more opportunity to the individual to receive protection under the law, rather than being merely a target of control by the law. Thus inequality under the law arises as a function of other factors rather than a built-in intent of the legal system. Thus I would modify clayboyn's thesis:

"while many people believe the legal system is built to protect you, it[] actually . . . "

often fails, unless one has access to expert legal knowledge and the facility to competently and powerfully interact with the law as an equal peer of the system.

Technology
Currently, seeking the protection of the law is generally a time consuming and expensive decision to make because the demand for expert knowledge of the law is greater than the supply. Thus, equal access to the legal system is limited by its systemic capacity to attend to the demands of each member of the society seeking redress. The future of robotics and artificial intelligence, as recently demonstrated by IBM's Watson in medicine, suggest a future where the expertise of our finest lawyers might be downloaded into our local computing space to provide legal council at a scale and cost that will fundamentally alter the distribution of justice and equality in our society.