Kafka's Law by Robert P. Burns;

Author:Robert P. Burns; [Burns, Robert P.]
Language: eng
Format: epub
Publisher: University of Chicago Press
Published: 2014-03-14T16:00:00+00:00

CHAPTER FOUR

Spaces of Freedom in American Law?

The jury is, above all, a political institution, and it must be regarded in this light in order to be appreciated. . . . He who punishes the criminal is the true master of society.

—Alexis de Tocqueville

We have the last remnant of active citizen participation in the juries.—Hannah Arendt

A Vast Unchanging Judicial Organism?

Huld the lawyer tells K. that imagining reforms in the system is a colossal waste of time, both futile and likely to “draw the attention of an always vengeful bureaucracy.” Huld describes the law as a “vast judicial organism” that remains “in a state of eternal equilibrium, and that if you change something on your own where you are, you can cut the ground out from under your own feet and fall, while the vast organism easily compensates for the minor disturbances at some other spot—after all, everything is interconnected—and remains unchanged, if not, which is likely, even more resolute, more vigilant, more severe, more malicious” (119). One might say we have institutionalized vengefulness: anyone who exercises his Sixth Amendment right to ask a jury of his peers to decide his guilt will, if convicted, be assessed a “trial tax” of additional years of imprisonment for interfering with the ordinary workings of the system. If you looked at our criminal justice system as it actually functions with the compassionate clear eyes of an artist, one might conclude that we were close to the world of The Trial.

Does our legal system have this unreformable quality? William Stuntz, for one, tells us that reforms are possible, but unlikely. Stephanos Bibas tells us that “the gap between historical ideals and criminal-justice reality has never been greater” such that “[r]eforming a system so broken seems hopeless.” He can only say that “I will not hold my breath” until the resources necessary to bring some sanity to the system become available and generally “[o]ne faces immense difficulty in beginning to reform a system as broken as our punishment factory.”1 These dark expectations are rooted in pessimism about the likelihood of action within what Arendt calls our “spaces of freedom”—here appellate courts and legislatures—that have not acted with real freedom in the recent past.

Of course, Kafka’s law emanates from mysterious heights over which those ruled have no control and were enacted “from the beginning” in the interests of the nobles who enforce them. The people can only hope without hope that the nobles really are deciding cases by interpreting the law, something that will not really be known for centuries. It is hoped as well that the day will come when “the law will belong to the people, and the nobility will vanish.” This is said without an animus against the nobility: “We are more inclined to hate ourselves for we have not yet shown ourselves worthy of being entrusted with the laws,” and as Kafka puts it so elusively, “it [the doctrine that there really is no law] unequivocally recognizes the nobility and its right to go on existing.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.