In ancient societies, in feudal society, there were no clear rules, written in statute books, accompanied by constitutions. Everyone was subject to the whims of powerful men, whether the feudal lord, the tribal chief, or the king.
But as societies evolved modern times brought big cities, international trade, widespread literacy, and parliamentary government. With all that came the rule of law, no longer personal and arbitrary, but written down. It claimed to be impersonal, neutral, apply equally to all, and, therefore, democratic.
We profess great reverence for certain symbols of the modern rule of law: the Magna Carta, which set forth what are men's rights as against the king; the American Constitution, which is supposed to limit the powers of government and provide a Bill of Rights; the Napoleonic Code, which introduced uniformity into the French legal system. But we might get uneasy about the connection between law and democracy when we read the comment of two historians (Robert Palmer and Joel Colton) on Napoleon: "Man on horseback though he was, he believed firmly in the rule of Iaw."
I don't want to deny the benefits of the modern era: the advance of science, the improvements in health, the spread of literacy and art beyond tiny elites, and the value of even an imperfect representative system over a monarchy. But those advantages lead us to overlook the fact that the modern era, replacing the arbitrary rule of men with the impartial rule of law, has not brought any fundamental change in the facts of unequal wealth and unequal power. What was done before - exploiting the poor, sending the young to war, and putting troublesome people in dungeons - is still done, except that this no longer seems to be the arbitrary action of the feudal lord or the king; it now has the authority of neutral, impersonal law.
The law appears impersonal. It is on paper, and who can trace it back to what men? And because it has the look of neutrality, its injustices are made legitimate. It was not easy to hold onto the "divine right" of kings-everyone could see that kings and queens were human beings. A code of law is more easily deified than a flesh-and-blood ruler.
Under the rule of men, the oppressor was identifiable, and so peasant rebels hunted down the lords, slaves killed plantation owners, and revolutionaries assassinated monarchs. In the era of the corporate bureaucracies, representative assemblies, and the rule of law, the enemy is elusive and unidentifiable. In John Steinbeck's depression - era novel The Grapes of Wrath a farmer having his land taken away from him confronts the tractor driver who is knocking down his house. He aims a gun at him, but is confused when the driver tells him that he takes his orders from a banker in Oklahoma City, who takes his orders from a banker in New York. The farmer cries out: "Then who can I shoot?"
The rule of law does not do away with the unequal distribution of wealth and power, but reinforces that inequality with the authority of law. It allocates wealth and poverty (through taxes and appropriations) but in such complicated and indirect ways as to leave the victim bewildered.
Exploitation was obvious when the peasant gave half his produce to th lord. It still exists, but inside the complexity of a market society and enforced by a library of statutes. A mine owner in Appalachia was asked, some years ago, why the coal companies paid so little taxes and kept so much of the wealth from the coal fields, while local people starved. The owner replied: "I pay exactly what the law asks me to pay."
The modern system of the rule of law is something like roulette. Sometimes you win and sometimes you lose. No one can predict in any one instance whether the little ball will fall into the red or the black, and no one is really responsible. You win, you lose. But as in roulette, in the end you almost always lose. In roulette the results are fixed by the structure of the wheel, the laws of mathematical probability, and the rules o the house." In society, the rich and strong get what they want by the law of contract, the rules of the market, and the power of the authorities to change the rules or violate them at will. What is the structure of society's roulette wheel that ensures you will , in the end, lose? It is, first of all, the great disparities in wealth that give a tremendous advantage to those who can buy and sell industries, buy and sell people's labor and services, buy and sell the means of communi- cation, subsidize the educational system, and buy and sell the political candidates themselves. Second, it is the system of "checks and balances," in which bold new reforms (try free medical care for all or sweeping protections of the environment) can be buried in committee, vetoed by one legislative chamber or by the president, interpreted to death by the Supreme Court, or passed by Congress and unenforced by the presi- dent. In this system, the occasional victories may ease some of the pain of economic injustice. They also reveal the usefulness of protest and pres- sure, suggest even greater possibilities for the future. And they keep you in the game, giving you the feeling of fairness, preventing you from getting angry and upsetting the wheel. It is a system ingeniously devised for maintaining things as they are, while allowing for limited reform.
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