Law, Equity and Systemic Discrimination
There is a great deal to be said for living one’s life according to certain generalized or universal moral principles. Thus, the demand not to commit murder, lie, steal from others, or the principle that we should treat others with respect appear as reasonable and necessary. These latter universal edicts have a normative hold on us because they help us to live peaceably and without fear. However, it can sometimes happen that following a universal rule or moral precept leads to injustice in the particular. We all know that in most cases it is reasonable to follow the injunction not to lie. We also know there are cases where telling the truth can be much more damaging—if our neighbour or friend asks to borrow a handgun that we assume, with good reason, he or she will use to harm themselves or someone else, it would be appropriate to lie and say 'Sorry, I sold it or gave it away'. This point is also amply underscored in law. In other words, it is sometimes the case that the very generality of laws can be a source of difficulty in human affairs. In the context of human finitude and fallibility—of that which can be, and often is, ‘otherwise’—literalism or following the letter of law can get in the way of just or reasonable outcomes.
One thinks here of the Inspector Javert in Victor Hugo's Les Misérables, who simply had no room in his conscience for equity or empathy, but instead tenaciously and fanatically held to the ‘letter of the law’ in his pursuit of Jean Valjean—a man who stole a loaf of bread to feed his sister’s children and initially was sentenced to five years in prison. Excessive and cruel punishment for petty crime has its modern counterpart in tough on crime policies, three strikes laws, broken windows policing, mandatory minimum sentences and the like, all of which end in the mass incarceration of poor, Indigenous, black and brown people.
Is there a way to attenuate or lessen the severity of law—a way to open up the application of general laws so that they are more sensitive to extenuating or particular contexts or circumstances? At least one traditional means used to bring in circumstances not originally contemplated in the crafting of laws is through the concept of ‘equity’. I speak here not so much about particular acts or courts of equity, but more generally about the concept of equity sometimes described as the conscience of a common law system. Equity is often contrasted with equality. In most cases we might think it is right to treat all individuals equally. But in some cases, this may lead to injustice. For example, if we treated a group or a person that was historically discriminated against as if they were equal to those who were not subject to such discrimination, then we would be repeating the original wrong precisely because we took no account of the fact that they were repeatedly discriminated against in the past.
Equity is, therefore, a corrective to the absolute character of laws and principles. It is what you might think of as judgement involving practical reasoning and empathy. It presumes, rightly, that because we are not omniscient as lawmakers we are unable to say, once and for all, how things will be. Our lack of omniscience regarding the future means that from time to time the abstract universal law might have to be slightly revised, amended, broadened or deepened, in light of many unforeseen or unimaginable situations. Over time, and in light of new understandings or newly raised consciousness about ourselves and the world we are pressed to continuously re-examine our laws through the exercise of judgment as equity.
If equity can be understood as a kind of discriminating or empathetic judgment in situations where a universal rule or law might be unjust when applied ‘to the letter’ then equity, put simply, is means for restoring justice to law. If the letter of the law is adhered to without exception, then law inevitably becomes hegemonic and blind to the realities on the ground. When this occurs, the voice of the particular, the unique human context or situation is silenced. The capacity to exercise good judgment with respect to some situation we have not encountered before is a matter of understanding that this particular situation cannot be subsumed under some general rule, without losing something important. Equity is, therefore, a determination to discover the right or just ‘fit’ between the general and the particular. The judge who is unjust is the judge who has no discriminating sympathy, and intentionally ignores the distinctiveness of the particular situation which calls for a correction, broadening or deepening of the general rule. The application of law, owing to the variability of human affairs, is always an unfinished project.
When the jurist or judge restrains the law through equity considerations this does not mean that he or she diminishes the law. It means instead that the latter’s judgement encompasses a richer, more nuanced understanding of the law. Applying a broader vision and a more nuanced response to the complexities and historical situatedness of the ‘case’ at hand, is the mark of wise or prudent judgement. In the spirit of Aristotle, the 20th century German philosopher Hans-Georg Gadamer relates that “…the law is always deficient, not because it is imperfect in itself, but because human reality is necessarily imperfect in comparison to the ordered world of the law, and hence allows of no simple application of the law” (Truth and Method p.328). That is why in addition to enacted law there needs to be judgement in situ—judgement that simultaneously involves understanding, interpretation and application of universal law under the demand of equity in the particular case.
In a crucial sense, when empathy and sympathetic judgment are realized through a notion of equity the jurist is allowed to surrender the ‘letter of the law’ in order to bring the legal meaning of law to its fulfillment in human contexts that are ever-changing. In more modern language equity is associated with notions of restorative justice, rehabilitation and reconciliation—it is, to use a modern expression, judgment from the bottom-up, rather than the top-down. Importantly, the reasoning involved in practical judgments based on equity is not straight-forwardly ‘logical’, but rather grounded on the notion that we humans can think and imagine the pain, adversity, historical or cultural disadvantage, hardship or suffering that others might have gone through.
But now, what if the law itself is the problem? Or, broadly put, what if behind the law, within the social and political institutions of a given polity there existed a level of historical, racial and economic discrimination that became invisible over time because it was ‘normalized’ and bureaucratized on an everyday basis? In male dominated, white-dominated or religious theocracies whole systems of laws have been created that privilege certain groups and exclude others. What sort of equity response could there be to colonial laws like the Doctrine of Discovery that are grounded on the expropriation of indigenous lands and are intended to protect the property of white people, or policing policies that do not make vulnerable people safer but, in fact, less safe by exposing them to arbitrary search, arrest, detention and death?
What happens when an entire system of law has been woven into a capitalist economic system intentionally designed to privilege white people and discriminate against poor people and people of colour? What about the extractive, expropriating and industrial system that arose and could only have flourished through white settler colonialist laws that enabled the enslavement of black people, and the genocide of indigenous peoples? Forced assimilation, Jim Crow laws and Black Codes were specifically designed to segregate the races, deny legal voting rights and insure wage penury of black people. It created a policing system first and foremost to protect the property and privilege of white people. Indeed, one could reasonably claim that capitalism, both historically and in the present, is not only associated with racism but actually makes racism and apartheid regimes necessary—the logic of capitalism itself is inseparable from its racist history of expropriation, extractivism and colonialism, and the subsequent marginalizing, disenfranchising and exploiting of indigenous people and people of colour. In this sense, the Trumpian call to ‘make America great again’ is an unapologetically racist call rooted in the economic profit imperative of privileged white America over black people and immigrants.
In such a systemically unjust and racist polity the conscience of politicians, judges and prosecutors is formed, shaped and narrowed by a system of law, politics and economics that is fundamentally oriented toward maintaining white privilege. The discretionary powers of judges are therefore reflected in rulings that are more narrowed and circumscribed by this same prejudice. It also follows that the resulting apartheid legal system and its corollaries in the social and economic spheres, are much more vulnerable to institutional arrangements and political ideologies oriented by reactionary extremes including fascism. That is precisely where I think America, and to a lesser extent, Canada, stand at this point in history—and precisely why groups like Black Lives Matter are calling for fundamental change. Many would ask whether such radical solutions are practical or even possible. They would contend that gradual reform rather than revolution would eventually bring about the kind of changes needed.
The fact that white privilege has for so long become immune to radical systematic change is only too apparent in the many attempts at policing and judicial reform that actually end up further embedding discriminatory practices and perspectives. Equity considerations cannot help much here either. When an entire justice system is discriminatory any attempt to bring in equity considerations often ends up making things worse. The textbook example here is conditional sentencing provisions (limited to sentences under two years.) As a consequence of excessive rates of incarceration, (mostly of Indigenous peoples) it was decided that some offenders might serve sentences in communities—under something like “house arrest” where they could serve their sentence and still continue to work or attend school. Indigenous people make up only about five per cent of Canada’s population, but more than 30% of inmates in Canadian prisons are Indigenous men while 42% of women inmates in Canadian prisons are Indigenous.
Many judges (not to mention the public) assumed that the lenience afforded to offenders through conditional sentencing could be justified only through the imposition of stringent conditions. For people who come from privileged white middle class families and communities with all their attendant wealth and educational advantages, conditional sentences served in the community are obviously preferable to time spent in jail. The problem is that in a reservation system built on a settler colonialist racist foundation, where cultural alienation, and economic and educational disparity, alcoholism, drug abuse and sub-standard housing are the norm, where police surveillance is a constant, Indigenous people given ‘conditional’ sentences are put back into hopelessly dysfunctional, impoverished communities. Many end up violating sentencing conditions. When that occurs, they are re-routed back into the carceral system. In a systematically racist society Indigenous people are set up to fail. The result: incarceration and recidivism rates of Indigenous peoples have risen rather than fallen.
The fact is that justice as equity at a more systemic or structural level would demand a radical and revolutionary redesign of the legal, constitutional, economic and political system. It would require more than just police reform. Indeed, it would necessitate:
1. fundamental economic restructuring that would prioritize the allocation of resources into social, environmental, health and mental health systems.
2. the immediate reconstruction of the present criminal law away from separation and towards reintegration and rehabilitation
3. the abolishment of the plea-bargain system,
4. the decriminalization of all drugs and
5. the abolishment of the present carceral system, both public and private.
The video images of extreme police violence in the case of George Floyd and many others have demonstrated incontrovertibly that what is considered normal police practice is extreme brutality—an extension of much more systemic forms of institutionalized racism. This state of affairs will not be rectified by piecemeal efforts such as more cameras or laws prohibiting choke holds. In other words, considerations that introduce equity into the law or into police practices will not help if at a broader institutional level police are permitted by the courts and under the guise of existing law to rationalize extreme violence and even murder of black (or Indigenous) people. What is then required is not equity as a series of patchwork or intermittent reforms that keep the status quo intact, but equity at a structural level—equity which presupposes systemic revolutionary change in the very way that society as a whole is ordered. This means building in economic stability and egalitarian principles, by providing liveable housing and a living wage; it means creating a free health and mental health system that responds to human needs; it means an education system free and available to all—an education system that inspires children to realize their potential and young people to become educated in civic virtues and critical thinking; it means designing environmentally friendly public infrastructure and spaces for youth to play in and adults to enjoy the company of friends and neighbors.
Think here of the picture often used to distinguish equality from equity:
What is required is not equally distributed or higher benches here and there but tearing down the entire fence—the structure that prevents those who are poor, black, brown or Indigenous from seeing and experiencing what white people take for granted.
It is really past time that we abolished our present barbaric system of policing, and with it the capitalist economic and legal system that permits it to indiscriminately assault and murder the most vulnerable among us.