Law and Prejudice

While slacking off temping…
  August 4, 2004

Martha Nussbaum:  “The law, most of us would agree, should be society's protection against prejudice.”  Not correct.  The law, on average, is the prevailing societal system of prejudices, codified to suppress other systems.  It reflects the society’s values, which stem from the society’s goals (which stem from the society’s values, and so on, in a chicken-and-egg dance).  In the USSR, the system nurtured totalitarian socialism; in the US, it supports democratic free enterprise; in the land of Theodoria, it fosters supramoralistic psychocracy.  Of course, the goals and values of a society are always in flux as history progresses.  Therefore the law must be constantly revised; it always plays catch-up to the society’s mission.

How the mission is formed is too big a topic to discuss here.  In brief, its development is akin to the course of a droplet of rain sliding down an uneven surface: there are certain given factors affecting the movement but the path is largely chaotic.  Hence divergence over time between societies starting out almost from the same point.  To complicate matters, dominant societies affect the paths of weaker ones; it’s as if some droplets could dictate where other droplets should go.

As a codified system of prejudice, the law protects only against prejudice not its own.

Afterthought:  An interesting tangent topic to explore may be the consequences of the causal primacy of social values over goals, or goals over values.  My hunch is that the first case (Bhutan, apparently, is a good current example) makes for a more harmonious and thus happier society than the second case (Stalin, Nazis).

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