Let’s Start Thinking About "Law" in a Whole New Way

Paul Cienfuegos’ January 13th, 2015 Commentary on KBOO Evening News

(His weekly commentaries are broadcast every Tuesday evening. You can view or listen to them all at PaulCienfuegos.com, CommunityRightsPDX.org, or subscribe via ITunes. This particular commentary can be heard HERE.)

Today I want to talk about law. For most Americans, law is that scary thing that police and the courts use to cause you great suffering, either in prison or with massive fines that most of us cannot afford – and more often than not for crimes that are victimless – where no one was hurt – like being caught with a small amount of marijuana. A huge percentage of Americans are sitting in prison today for such crimes, which is an obscenity in my opinion. And in states where the courts have been granted the outrageous Three Strikes and You’re Out, additional massive numbers of Americans are in prison with long sentences, or even life sentences, because their third and final crime was sometimes nothing more serious than stealing a slice of pizza. Yes, we certainly are a nation of laws, but what kind of a nation of laws are we? We are a nation of unjust laws. We are a nation of selectively enforced laws. We are a nation of unquestioned and unchallenged laws.

There’s a quote I love, by Anatole France, a French poet, journalist and novelist, who was born in 1844. Here’s the quote: “How noble the law, in its majestic equality, that both the rich and poor are equally prohibited from peeing in the streets, sleeping under bridges, and stealing bread!”

Ally Fogg, a British writer and journalist describes the Anatole France quote perfectly, when he writes, “To treat rich and poor alike is to treat them entirely differently.” What an interesting thing to try to get your head around.

Imagine living in a society where there were no extremes of rich and poor. In such a society, it’s likely that very few people would steal from other people because everyone would have enough of what they needed, to thrive, so laws about theft would likely only rarely if ever be used.

In May of 2014, I met an extraordinary legal scholar from Victoria, Canada at a conference. Her name is Val Napoleon. She’s an indigenous woman who teaches law at the University of Victoria in British Columbia, and is the director of the Indigenous Law Research Unit. Val Napoleon taught me something that blew my mind. In our western culture, activists tend to refer to laws that are unfair or oppressive as “unjust laws” or “illegitimate laws”, and they work hard to get rid of these laws.

It turns out that in historical Indigenous societies, laws that were unjust or illegitimate were not even considered law at all. In fact, there were eight legal requirements that a law must meet for it to be considered a law at all within an Indigenous community. Indigenous people were non-state, decentralized societies, so law did not come from formal, central state processes. Instead, law originated from the Indigenous citizens themselves – it was about relational commitments – it had to fulfill specific needs or requirements of that community. Val Napoleon and her colleagues are working with many Indigenous communities across Canada to restate and rebuild historical legal understandings back into what I call background normal.

Try to imagine what your community might look like, might feel like, if the only laws that existed there were ones that the entire community had had an active role in creating or at least approving. Imagine living in a community where laws that oppressed certain classes of people would not even exist as law because they wouldn’t even meet the definition of what a law is. I do a lot of teaching of some very bold and ambitious ideas about democracy and law, all across this country, and it’s hard even for me to imagine what my community would look and feel like in that situation.

In most if not all cities in this country, if you want to buy a standard lot, and build a whole bunch of micro-homes there for you and your friends to live in community together, you would be breaking the law. If you wanted to take responsibility by keeping your poop out of the water supply and instead compost it on-site, you would be breaking the law. If you and your neighbors wanted to tear up the entire street in front of your homes and plant food gardens there instead, you would be breaking the law. If your neighborhood wanted to dismantle the existing centralized sewer system, and instead treat and use the graywater within the neighborhood, you would be breaking the law. If the residents of your town or city decided to dismantle the existing centralized electricity grid and replace it with a decentralized solar and wind system, you would be breaking the law. No wonder that very few of us ever seriously consider doing these sorts of activities, even though none of these activities would hurt anyone, and in fact would be an improvement in everyone’s lives.

In this country we take it for granted that laws are something we have almost no control over, and therefore very few of us ever imagine doing anything to overrule or overthrow an unjust law. Instead, we try to hide our own violations of existing laws, and we work hard to not get caught. That’s a pretty good definition right there of a people who feel powerless in their own communities. And we call this democracy?!

Why do we put up with laws that have been imposed upon us from above. Why do we allow laws to remain in place that do not serve us, and that were written by people who have been dead for a very long time?

Now, allow me to flip this question upside down.

Why is it totally legal, under our existing system of law, for a corporation to pour toxic and cancer-causing chemicals endlessly into the air and water as part of its manufacturing process? And at the same time, why is it illegal, under our existing system of law, for the people of a city or town to pass a law that bans (rather than regulates) the ongoing poisoning of our air and water by corporations? Or more generally, why are most ecologically sustainable practices illegal, and unsustainable practices not only legal but required by law? Would it not make a heckuva lot more sense if those activities that were ecologically unsustainable, or were economically and socially unjust, were simply made illegal? One impressive group that’s tackling one aspect of this problem is called ReCode, and their website is RecodeNow.org.

I am involved as a teacher and community organizer in the Community Rights movement because I am convinced that the time has arrived for We the People to get ourselves organized and mobilized to oppose and dismantle unjust and illegitimate laws that violate our inherent right to govern ourselves. We are starting these efforts at the local level, but our ultimate goal is to dismantle unjust structures of law at all levels of the society, so that the law serves all of us, rather than just a tiny percentage of us.

Imagine your community ten years from now, where people have joined together to redefine law itself, where the only laws that still exist are those that meet everyone’s needs. Now that’s something I’ll bet we could all get excited about!