I was reading Robert Scheer article posted on Truthdig. And I thought that I would write back... and so I sent the following email.
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I note that you don't want or need more political commentary so I won't attempt to write anything for submission. I wanted to offer a comment on Robert Scheer's comments. I am a fan of his and wanted to point out that he needs to think more about what he means by "regulation". What I will suggest is that sadly, there cannot be an easy re-regulation of the banking (food, employment or whatever) because the basic structure of the 'rule of law' is missing. What is needed is political will to fix the legal system - the problem is that no one seems to notice that it is broken.
Your response may well be that I am just another 'nutter' running around saying that the sky is falling in. If so, my comment is that your response proves my point. Following on from HLA Hart and other neo positivist legal scholars and the idea of a rule of law as a system, what is critical in ensuring that the system 'works' is not so much the basic norms or principle (although these are important) but the consensus among the insiders (the lawyers, judges, police, sheriffs and so on) as to these basic principles. For 20 years legal talent has been told to find the money - not justice, not fairness - just money. The legal system has come to be understood as an instrument of private (and at time public policy). The metaphor these days is that the law is a hammer or screw driver rather than the a 'tree' or other living organism, an image which informed the law for many in the 1920's and '30's.
I am a Canadian - but 'even in Canada' there are very few lawyers, judges police etc who believe in the system. Criminal and administrative legal processes have been so grossly underfunded that the justice produced has become arbitrary and, at times, grotesque. What happens depends on who the decision maker is - are you lucky today and get a 'good' judge? If not, well, suck it up. So for everyone who says 'we need regulation' - I ask and just 'who and what' are going to be able to provide this - of course assuming that the regulation you mean has something to do with fairness, justice and maybe the rule of law? But if you mean by regulation, throw all of those greedy bankers (you know the ones who took the bonuses and lost the money) into jail, then by all means - go for it. Of course, it will be nice if all the ones who end up in jail are not just there because they are hispanic, jewish or over 6' tall.
Oh I suppose that the US Justice Department is hiring more investigators and maybe even there will be more lawyers and accountants trained in the fine art of forensic accounting, but is anyone looking at how one can make the ruling class accountable using the system made by and for this mercantile class? Surely the case of Bush v. Gore must give those who think that the courts can fix politics pause.
I will stop here.
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Now I have to admit that I sent this email in the hopes of being read - in the hope that someone, would notice me and so on and so forth. But I wrote it because I am beginning to understand what is happening and from this understanding to develop an analysis and sense of what may happen next.
I stopped where I did because I am trying to write shorter pieces. Of course, in order to defend my comments, I need more words. Many people would challenge my description of the legal system but I stand by my opinion that very few people who work 'in the system', believe that it is 'good'. Administrative law is in a particularly bad place. The thing is that if the law is seen as a legal system, then it always is in a 'bad place' - the issue has always been how to make the system better. The only problem now is that the only guiding light is money - better has been for a long time 'more efficient'. But efficiency is not a goal - money for the sake of money is silly...
