The Radical Center
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The Radical Center

Law, Legislation and Hate

The law is often seen as some idolized concept. Such is not the case; it reflects the values and views of the general public. The law is not blind, it never has been, it sees through human eyes.

In the 1996 film A Time to Kill a Southern lawyer, Jake Brigance defends a Black father, Carl Lee Hailey for murder. Hailey’s 10-year-old daughter was raped and violently assaulted by two bigots and Hailey waited for them inside a local government building to take the opportunity to shoot them dead.

In his summation to the jury he says something I consider important, and in addition, well written:

I set out to prove a black man could receive a fair trial in the south, that we are all equal in the eyes of the law. That’s not the truth, because the eyes of the law are human eyes — yours and mine — and until we can see each other as equals, justice is never going to be evenhanded. It will remain nothing more than a reflection of our own prejudices, so until that day we have a duty under God to seek the truth, not with our eyes and not with our minds where fear and hate turn commonality into prejudice, but with our hearts — where we don’t know better.

I don’t buy into the idea of a dichotomy between our “minds” and our “hearts,” but I thought what this script said about law is important. The law always reflects our own values, but it often reflects a set of moral values from a past consensus; it rarely represents the present consensus but usually some past consensus. Attitudes change long before laws change to reflect that consensus.

I well remember South Africa when I lived there, enmeshed in a cobweb of legislation intended to keep the races apart residentially and occupationally. In reality apartheid was already dead. I moved to an apartment on the 21st floor of a building in the Hillbrow section of Johannesburg, with views all the way to Pretoria.

But the building was integrated; the whole neighborhood was mixed, as were the neighboring sections of the city. Laws intended to keep black workers in the rural areas as cheap labor for Afrikaner farmers had failed miserably. The urban areas were filled with migrants from the poverty of the platteland seeking opportunity.

By the time the South African government officially repealed their experiment in racial segregation it was long dead and buried in reality. The law simply eventually caught up with reality. It caught up with a consensus among the people.

Our laws segregating same-sex couples to third-class legal status died officially on June 26th, 2015. They had died in the hearts and minds of the public well before that. The law caught up with the moral evolution of the people.

Laws, in a democratic society, reflect the values of the people, even when they reflect values the people have given up. Law often moves slower than the evolution of values themselves.

This is one of the reasons that fake libertarians out of Auburn are so full of B.S. They want to argue individuals can be racists but as long as the law isn’t racist it’s just fine and dandy — an argument they make in order to exonerate their own hateful attitudes. But, law is a mirror reflecting the values of a society.

It is simple naïve at best, dishonest at worst, to argue the law will not eventually catch up with the social consensus.

The man who proudly claims, “I am a racist” is contributing to that consensus. His attitudes are like a virus and the weaker in the herd catch the disease and spread it as well. If enough of them buy into this hate, the hate will eventually appear in law.

You simply can’t have a legal system protecting individual rights when the general consensus is one of collectivist prejudice. If you believe all Jews are conspirators, and all blacks are criminals — or have tendencies in that direction, unlike your own race or religion — and if enough people accept those ideas the laws eventually impose such beliefs coercively.

They take life in the legal system. It may be seen in many different ways. Cops may be more likely to stop, arrest, or even kill members of the despised group. Juries may find it easier to convict them. The primitive regions of the country, which routinely execute people may find it easier to sentence the victims of prejudice to death. Bigotry starts in the mind but it ends in actions.

I have argued hate is an imperialistic emotion because it eventually seeks to act. Bigotry breaks out into violent actions because it must. It’s a psychological itch that has to be scratched. It is not satisfied with just quietly hating others, it wants to do more and it will do more given half a chance to do so.

The quiet haters are waiting for someone to give them permission to act. Those who are vocal about their hate, who proudly admit it, are the ones who signal to others that acting on hate is fine and good. Whether they protest that is their intention or not, it is what they do. It is the role they play in this sick drama.

To a libertarian it doesn’t matter who is violating rights. Contrary to the insane delusions of Gary North, when private society attacks the rights of people, it is unlibertarian. Libertarianism was once proud of promoting the idea that governments must be held to the same stands of the private individual. If it’s wrong for you to violate rights, it is wrong for government to do so.

Now we have people who seem to think it’s permissable for private individuals to act against the rights of others, just wrong to have the government do it. Gary North literally gushed about how wonderful it would be for a “free society” to stone gays to death. Yet any society that acted that barbarically is hardly a free one.

I haven’t given up the old principle. It is wrong for anyone, government or private citizen, to violate the life, liberty or property of another. Hate, when voiced, ultimately acts and hate is the antithesis of libertarian values. We libertarians still cling to the idea each individual should be free and equal before the law. We still believe individuals are judged on their actions, not on some inconsequential collective trait they share with others: race, skin color, religion, sexual orientation, etc. We are individualists not collectivists and every bigot is our enemy, even if they smear the name of some great classical liberal as a cover for their hate.

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James Peron

James Peron

James Peron is the president of the Moorfield Storey Institute, was the founding editor of Esteem a LGBT publication in South Africa under apartheid.