Black Rage Confronts the Law. Paul Harris

fascinating about the law is that it incorporates the existing system of inequality, but then the law itself is used as a rationale for legitimating the very system that is imbedded within it. In other words, the law enforces rules as the natural order, when in fact those rules have already assumed one set of philosophical tenets and rejected any alternatives.

      The term real property refers to houses, buildings, and land, as contrasted to personal property, which includes most other things one owns. Real property law in the United States allows one to own all the houses, buildings, and land one can afford. A person can make a living sitting in his home and collecting money from other people living in their homes, which he owns. An individual can own a tree or a beach. This arrangement is called capitalism. If a lawyer brought a lawsuit in an American court on behalf of neighbors who wanted occasional access to a “private” beach, the lawsuit would be dismissed immediately. A judge would not allow legal arguments regarding the public nature of a beach and whether it should or should not be owned by an individual.

      This legal result is not common to all societies. Historically, among many Native American tribes land could not be owned by an individual. There was no proprietary interest in the environment. One could no more own a beach than one could own the ocean. People made fun of the Indians for allegedly selling the island of Manhattan for a few beads. But in Native American legal thought people could not own Manhattan Island, and therefore they could not sell it.

      In modern-day America a tenant cannot refuse to pay rent on the grounds that the landlord owns more homes than she needs. But in Cuba one could raise such an argument and win. The Cuban General Law on Housing adopted in 1988 provides as follows: “Personal property in housing must be understood . . . essentially as a right to enjoyment of the house by the owner and his/her family, without having to pay anything after paying its price, but in no case can this right of personal property in the house become a mechanism of enrichment or exploitation.” In her 1994 book on Cuban law and society, Revolution in the Balance, Debra Evenson notes that the official interpretation of the Housing Law is that a persons home is to live in, not to make a living from. Cuban citizens may own a primary residence and a vacation home, but no more.

      In the United States you have a Fourth Amendment constitutional right to have your home free from searches without a warrant. But you have no right to a home. Which right would the man sleeping under a Los Angeles freeway prefer? In Cuba, the Constitution states that the “socialist state strives to provide each family a comfortable place to live.” Decent housing for all is a goal of the society, and that goal is expressed in the Constitution as a legal obligation of the government. This would raise an interesting legal question if the Cuban state tried to prosecute a homeless person for sleeping in a park. That persons lawyer should be able to defend the case on the grounds that the state failed to strive to provide a decent place to live according to Article 8(c) of the Constitution. Actually, the parks and streets of Cuba are not filled with homeless people, even under its present economic crisis. But if they were, the legal system would provide a possible defense for the homeless.

      The result in America is totally different, because our legal reasoning presupposes that there is no legal obligation for a government to provide housing for its people. In fact, what is taking place in America is the criminalization of homelessness.

      There are many cases around the country dealing with homelessness. In 1995 the California Supreme Court ruled in Tobe v. City of Santa Ana that the city could prosecute and send to jail for six months any person who camps out or stores their personal belongings (a shopping cart for example) in a public park, street, or area. Justice Stanley Mosk, in dissent, angrily criticized the city for arresting persons “whose sole ‘crime’ was to cover themselves with a blanket and rest in a public area.” The decision noted the fact that the city provided shelters, but on any given night there were 2,500 more homeless people than there were beds in shelters. In Cuba, such a fact might be used as a defense, arguing that the government was failing to attempt in good faith to provide housing. But in the United States, this fact was considered legally irrelevant to the decision of the court. Is being poor legally irrelevant to a criminal defense? Is being black and suffering actual discrimination legally irrelevant to a criminal defense? These are the questions with which the black rage defense confronts the law. (This confrontation will be explored in following chapters).

      Another major factor in legal reasoning is the myth that the law is made up of neutral, fair rules. Rules are supposed to become evident to any educated and legally trained judge or lawyer who objectively analyzes the facts and the previous legal decisions. This myth was articulated perfectly by California Court of Appeals Judge Edward Wallin: “I am never troubled by making a decision. I just decide the way the law dictates.”

      The judge’s statement assumes that reason and logic determine judicial results. It denies the influence of the judge’s personal political views. The statement also carries the message that the “law” is just floating out there in space, majestically dictating the correct (fair and just) result. This denies the fact that judges must interpret conflicting arguments to arrive at a result, and that their interpretation is based on a myriad of factors that are rooted in present-day political conditions.

      Anyone who does not believe that judges are influenced by public pressure, social movements, and their own prejudices and opinions should read The Brethren by Scott Armstrong and Bob Woodward, the journalist who helped uncover the Watergate story. This was the first popular book to go behind the black-robed mystique of the United States Supreme Court and expose the myth that judges interpret the law based on objective, neutral principles untainted by politics and predisposition.

      One key legal concept supporting this myth is stare decisis, which says that judicial decisions flow from previous decisions, going back centuries to the beginning of English Common Law. Every lawyer searches musty old law books, or, these days, computer data bases, for “precedent”—that is, for judicial opinions that support her argument. Indeed, much of the skill of legal practice is taking those previous opinions and expanding or shrinking them to fit the facts of one’s present case. We spend an enormous amount of time in law school learning how to distinguish cases from each other, and how to analogize the facts or law of previous decisions to the facts of the case at hand. This prompts our friends and spouses to remark irritably that law students can only speak in analogies.