Our general conception of “law” needs to be completely re-thought. Conventional wisdom espouses the belief that the legal process is neutral and objective. The sheer mentioning of law summons biblical images of Moses descending from the mountains with the Commandments. This narrative is complete garbage. Absent from such analyses is the fact that legislation is inherently biased and reflects the desires of those already in power (whites, the wealthy, men). Laws are little more than legitimized chicken-scratch on a napkin to protect the interests of the powerful. What is deemed “legal” is that which is desirable to those in power; what is deemed “illegal” is that which is undesirable to those in power.
There is a difference between what is legal and what is ethical or moral. Slavery was (and is) legal. Genocide of the Native Americans was (and is) legal. The Holocaust was legal. Japanese Internment was legal. Apartheid was (and is) legal. The invasion and occupation of Iraq was (and is) legal. The biggest atrocities in human history were legal, but they were and are not ethical or moral.
Consider the following hypothetical. Lets say I have a sex slave. I make it law that she strips naked for me. After a while, she decides to fight back by kicking me in the crotch. I call this a violation of law. After many fights, we negotiate and end up passing a new law that states she only has to strip naked every other night. She is happy that she has been included in the process. I am happy that she is less likely to rise up and kill me.
Lets apply Freud’s topology of the mind at a systemic level. There are three parts of the mind: the id, the superego, and the ego. Society has an id: the raw, hedonistic, unadulterated essence of being – with endless impulses seeking consumption and destruction (food, sex, violence). Children are born as pure id; they are governed by the pleasure principle. However, as it grows up, the desires of the id are repressed into the unconscious when they come in contact with the superego: the ideal image of who we should be and what we should act like. The superego is the “real world”, governed by the reality principle. The superego is a civilized society with a mandate for freedom, justice, and equality. The id and superego are always at odds with one another, and out of this confrontation comes the ego: the sense of “I” that we identify with, which serves as a conflicted referee between the two other parts of the mind.
The id is not destroyed by the superego, it is simply forced to adjust its method of fulfilling its desires to be more socially acceptable. As Anthony Farley points out:
The pleasure of white supremacy is unconscious.
The pleasure of wealth extraction is unconscious.
The pleasure of patriarchy is unconscious.
How does society find a way to fulfill these desires in a socially acceptable way? It becomes involved in a discourse on laws.
Laws are ego defense mechanisms for both the oppressor and the oppressed. Through law, the desires of the id are satisfied and the standards of the superego are satisfied. To apply Freud once more:
- The law is a form of rationalization because it provides oppressors with a justification for racism, classism, and sexism.
- The law is denial because it allows oppressors to pretend oppression is not happening at all.
- The law is an identification with the aggressor because the oppressed convince themselves that their oppression is beneficial and defend their oppressor.
- The law is a form of projection because it allows oppressors to blame the oppressed for their unacceptable actions/feelings.
- The law is a reaction formation because unacceptable impulses are fraudulently expressed as their opposite.
Under racism, classism, and sexism, the law protects the desires of the powerful – it does not disrupt the desires of the id. Instead of focusing on what is legal or illegal, and who is innocent or guilty, we need to focus on the unethical and immoral desires that animate the law itself. As Jared Sexton said “we need to focus on white people’s desires, because they will be law tomorrow.”