Democracy v Justice A government of laws?

LOUIS CLAIBORNE

Some two years ago in Washington. (whence I come very fresh) three British journalists

(including the present editor of this paper) sat in enforced silence listening to an argu- ment I was making to the American Supreme Court. In tail coat and striped trousers, indicating somewhat antiquely my representation of the federal government, I was supporting the cause of Nellie Hunter of Akron, Ohio, who had been turned down as

the tenant of an apartment when it was discovered she was black. She was invoking a

local ordinance which forbade this sort of discrimination, but the rub was that the ordinance, enacted by the city council sometime earlier, had been superseded by the action of the good people of Akron who had recently amended their municipal charter to reserve to themselves—as opposed to their representatives on the city coun- cil—the decision whether to ban race discrimination in the sale or rental of hous- ing. I was urging the Court to rule that this return to plebiscitarian democracy was a nullity, not for any technical reason, but

because it offended the principle of equality embodied in the federal Constitution. If J was

right, the previous ordinance would still be in effect and Mrs Hunter would get her apartment.

On the other side, it was stressed that the voters of Akron had not ordained residential segregation, nor even urged homeowners to discriminate on racial lines; they had simply determined that the question whether private decisions about selling or letting houses and apartments ought to be regulated by law was an important and delicate matter which should not be resolved except by a vote of the entire adult citizenry of the town. While acknowledging all this, I responded that Akron's new charter provision prejudiced the chances of enacting a 'fair housing' law by singling out that subject for the burdensome popular referendum procedure and thereby impermissibly weighted the scales against those minorities whose members were the victims of race discrimination in housing transactions.

My British friends were aghast—and so, indeed,. were some of the judges who later dissented from the" ruling in favour of Mrs Hunter. But we need not pursue the case itself. It is a useful introduction only because the prevailing argument and the objections raised (or which might have been raised) reveal vastly differing views of the proper role of law. And, of course, there is a minor convenience from my point of vantage in choosing an illustration where my side won.

For present purposes, it does not in the least matter what any particular member of my audience actually thought (if it matters to them, they will doubtless be heard from). And, so, I will freely attribute to them cer- tain attitudes. I suppose the dominant response of my English listeners—shared by many Americans—was that I was attempting to push the law too far in this case. Some, no doubt, were of the view that law cannot suc- cessfully cope, at least by frontal assault,

with race discrimination in 'private' behaviour. For all I know, a few may have believed law ought not to interfere even if it

could effectively do so. Others who would accept a statute which outlawed these discriminatory practices did not see how a court properly could, in the name of a .'highee law, overturn the democratic decision of the people of a community to postpone any enactment on the subject. And still another group in my audience, although willing to recognise the primacy of the Con- stitution over popular votes, were offended that the Supreme Court was being asked to

give a novel construction to an old con- stitutional text—to make new law—for the sake of achieving a 'good' result. In lawyer- like fashion, let me take each of these points in turn.

I have little patience and few words for the suggestion that the law is out of its depth when it 'meddles' in race relations. Perhaps that is because in America that argument is always suspect, usually emanating from the very people who supported compulsory segregation laws, forbidding blacks and whites to play together, go to school together, eat together, travel together, work together, live near each other, worship together, or God forbid, lie side by side, dead or alive. Besides, in America, law, beginning with slavery as a legal institution, is so much a cause of the problem that it is natural to look to it for the cure also. But, all this aside. I simply cannot see why law should not be asked to contribute to lessening race tensions within its capacity. Without debating here precisely where the lines should be drawn. I suppose everyone recognises that, in America at least, law can play a useful role in this area. If nothing else, legislating racial equality serves an educative function, on both sides of the colour line.

Jo my view, it is no reason to keep law out of the problem because, alone, it cannot solve it. The law is not 'sullied' by descen- ding into the mire. Nor should it always stand aside until it can be confident of absolute victory, for fear of losing its moral force by a temporary defeat. Of course, there must be hesitations and cautious movements, even abstentions and occasional retreats, in the interest of effectiveness. But, after all, law is no more than an instrument. a weapon: it does not suffer, it will not bleed. it cannot be despoiled. And a broken sword or shield Can be discarded and replaced if need be.

An instrument? Whose instrument? How does that characterisation jibe with the self- congratulatory boast traditionally heard in Fourth of July speeches in America, 'Ours is a government of laws, not of men'? That motto is supposed to make us feel secure against tyrants, by suggesting that no one is above the law. It is also supposed to connote equality and democracy, since laws, at least in the modern American image, are con- ceived as uniformly applicable to everyone in the jurisdiction, without regard to race, or religion, or wealth, or social class. So far, so good. And no doubt a necessary doctrine. But beyond this. I reject the implications of our motto, American as it is.

'A government of laws' sounds very impersonal, indeed. By definition, if one is to take the precept seriously, the government does not make the laws: they pre-exist, and

the men who administer the state merely carry out the laws as `servants'. One is not meant to think too precisely about the source of these laws: for the most part they are conceived as having silently emerged out of the brooding sky, preferably long ago. Even what law is written and dated is assumed to be the product of some sort of enlightened `consensus'. It would be demanding to label any law as merely 'man-made'. The great ad- vantage of such superhuman laws is that they are by hypothesis entitled to submissive respect. But, by a parity of reasoning, capital letter Law is not responsive to contemporary human needs. It is especially inhospitable to the underprivileged, like the law Anatole France chided for its 'majestic equality' which 'forbids both the rich and the poor to sleep under bridges'. So, also, laws which are 'looked up to' by men because they are 'above' them tend to be slow to reform by mere men—which is all to the good for.those concerned with the security of property and commercial transactions, but no boon to the rest of mankind.

What then? Should law be a mere reflec- tion of the whims of every transitory popular majority? Far from it. The most important law protects minorities against the op- pressions of majority rule. The `democratic' decision of the citizens of Akron to let race prejudice control the housing market had to be overturned, if a way could be found. In Britain it would be said that only Parliament could do that. In America, too, it might have been preferable if the national Congress had acted sooner. But, precisely because law is not a mere translation of the popular will of the moment, the absence of legislation was not the end of the matter. The law's obliga- tion to tackle the problem is not exhausted merely because the political climate is un- favourable or because politicians are busy with other things. The law must be at the service of men, in the sense that it is attuned to current human problems and strives for the best solution of those conflicts in the context of the times. But that does not mean that it must obey the Gallup poll, or the tally votes in the legislature.

Now in America, I am told, this is made easier by having a written Constitution which can be resorted to when all else fails and a Supreme Court which is free to in- terpret, and re-interpret, that document as occasion arises. Essentially, though, that is the proper function of courts everywhere. Merely applying existing law to a given case is surely not what great judges do : they make exceptions, or make new law, as justice requires. And I do not readily appreciate why British courts cannot 'discover' the con- stitutional principle that all persons within the jurisdiction must be accorded 'the equal protection of the laws'—the only text on which our Akron decision and a thousand others are based—and make of it what our Supreme Court has.

Which brings me to the last point—that, through the agency of the courts, the law Ought to be renewed, remade, to achieve the right result. This is, to be sure, a dangerous doctrine when that power is concentrated in the hands of nine men, as in the case of the Supreme Court of the United States. But the opposite—courts without authority to over-

rule even their own—wrong decisions and always subject to being overruled by the legislature---seems to me very unsatisfactory in anything but a homogeneous and almost static society. Such courts would be useless in modern America. Indeed, my only criticism of our Supreme Court is that it has

- moved the law too hesitantly, too slowly. The law is in crisis today in the United States, and perhaps throughout the Western world. The attacks come from all directions, but the assault that ultimately matters is from the younger generation, white and black in America. Their demands cannot be satisfied, and ought not to be. Yet those of us who believe in the law as a civilising force must reform it before it is overthrown. We must quicken its pace and we must bring it down to earth. To be an effective moral force, the law must be seen to work justly. Attorney-General Mitchell to the contrary notwithstanding, the role of law is to attempt to achieve social justice. Law ought not to be a protectionist wall around established in- terests guarded by overpriced lawyers and underpaid policemen.

I have said law should be an instrument of social justice. That is rather vague. Of course it will not result from the nice balancing act performed by the familiar blindfolded figure with the scales. She would never have noticed that Mrs Hunter was denied a dwelling on account of colour. Nor am I suggesting fidelity to any fixed set of principles, much less any particular political system of creed. The goals cannot be stated in advance. But, surprisingly often, in my experience, the

right result in a given instance is perfectly clear, if only preconceived attitudes about law do not stand in the way. Thus, everyone, Enoch Powell included, would, I suppose, agree that Mrs Hunter 'ought not' to have been refused an apartment on the sole ground of race, that it `was a shame'. Then, I say, let the law correct this 'injustice'.

My point, I know, has been stated bluntly. The law cannot be quite so candid. Some of the mystery, some of the aura, must be preserved, else the law will be no more effec- tive than the actual compulsive power of its enforcers, who, short of the police state. will never be sufficient to the job. Lawyers and judges may continue to cite precedents—indeed, who could stop them? There must be solemnity and continuity and even an appearance of inevitability. Yet, everyone—especially, but not only, those engaged in the business—must know that the law is man's servant, not his master. It is not an easy thing to carry off. That is why, in the end, it is fitting that the task should be left to wise old men in black robes urged on by bright young men in striped trousers.

What say my British friends? Still aghast?

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