Laws and how they shape society are a complex process. I plan to examine to what extent our laws are rooted in bias and how it affects society’s future. The question I am going to answer is can laws be applied objectively, or will there always be some form of bias or prejudice? Why is this important to identify this and to what extent can it be monitored in order to preserve the rights of everyone? Our world has become too dependent on allowing laws to dictate to us what is right and what is not right. This is a relevant concept because it applies to everyone.
Laws do dictate our world and that is why it is up to the citizens to make sure those said laws are doing their job. I chose this topic because I’ve never questioned the origin of laws, I just followed them blindly assuming that because it was law it would be just and unbiased. I also found this topic interesting because it is applicable to everyday life because it is what shapes our society and way of thinking. The problem with laws is that it excludes large portions of people, the very same people who will have to adhere to those laws. This disparity in justice causes a divide in groups and creates an unequal society that focuses on dividing people on their differences instead of uniting them because of their differences.
The creation of laws is a subjective and unjust process due to the limited amount of input and perspectives provided from different groups of people, which in turn allows for the predation on individuals who do not fit into these doctrines. In order to lessen this disparity between groups, representation must occur in order for all perspectives to be heard so that future laws will be less subjective and more equal. I believe this is an important issue to identify because It is a difficult task to say all laws are just because to say that all laws are equal and applicable to everyone means that we are all the same.
I plan to analyze this thesis through various works such as John Locke’s “Second Treatise of Government”, Jackie Wang’s “Carceral Capitalism”, Biko Agozino’s “Counter-Colonial Criminology”, Raymond Wacks’s, “Philosophy of Law”, and Michelle Alexander’s, “The New Jim Crow- Mass Incarceration in the Age of Colorblindness”” These sources will help me with supporting my point as well as it will provide perspective and give different thought processes on how government rules and how we the people can change it by looking for possible bias or prejudice to secure that bureaucracy is doing the most for everyone.
I also plan to use various ideas proposed by philosophers that will help in proving my point such as ontology and law, legal positivism, social stratification, subjectivity versus objectivity, and legal rational legitimacy. It is a lot to cover but each concept, to me, provide logical feedback on what to look for and expect when creating and using laws in a society where it is important to treat everyone as fairly as possible.
The world is changing every day and in order for society to reflect these changes, the doctrines that dictate them must change in one way or another. Throughout history in the United States of America different systems that relied on objective and unbiased thinking were failed by leaders who were influenced by society’s stereotypes, resulting in unfair and unequal treatment of groups of people because they were different. Such as in Agozino’s “Counter-Colonial Criminology”, where the author discusses that conventional criminology is rooted in colonialism due to the fact that justice is not always equal.
Whether that is based off of class, economics, moral, or social. When justice is involved there will always be a certain group that is favored more than the other, especially when there are no checks or balances made. It is all great and wonderful when official documents are made in hopes of representing all equally but it’s different in real life especially when something that was promised is not always applied in the exact same way it was imagined. This was a trend seen during the colonial times that had an effect on conventional criminology; the distinction between treatment of slaves versus the wealthy class.
What was seen as just by the wealthy class was in fact unjust to the slave. The reasoning behind the cruel and evil treatment wasn’t able to be justified but continued because of absolute power. This unnecessary need to have things as clear cut; us versus them, black and white, any stratification of people into race, gender, class groups were a kept frame of mind because it maintained social structure. It’s important to recognize this social mindset because although it was seen as a necessary evil back then we should recognize when we start doing this to someone because it is not right. Instead of automatically putting someone into a group just to label them, then condemn them before they can be equally represented we must change this mindset to a more objective one.
And this is possible it is just difficult to control and maintain because humans are a product of their environment, that is why humans are biased because our past life experiences dictate how we see the world and how the world sees us. The world will never be able to be unbiased and objective simply because it is not in human nature. Humans view and understand their environment based off of personal experience so the only way to make decisions or accusations is by applying and interpreting one’s past experiences and perspectives. This is why it is very difficult to apply laws objectively because humans are innately biased so therefore anything created by man is rooted in bias as well.
This of course cannot be helped but should be taken into consideration when laws, that are created by a small group of individuals, are applied to everyone in that community because those very decisions that were determined just could be considered unjust to some. A method that could be used for prevention, I believe, depends on the future generation. I believe that our government is too corrupt at the moment to really care about what is happening to all of its citizens but if a shift in thinking occurs where representation of actual issues are brought forth by the appropriate representatives then the disparity of justice in laws will shrink over time. This of course takes time but is becoming more and more evident already in the mind-frame of the progressive new generation, the millennials; where their votes are making a difference for the future.
Looking towards the beginning of the development of modern governance, John Locke’s ontology about what human nature is that we first lived upon freedom and autonomy. Personal liberty and self-preservation were held in high regard, and it was only when an offender broke the rules of the state of nature that actions were taken. When someone intentionally went against reason and fairness then he must be punished because he is risking infringement on other people’s natural rights. These concepts were highlighted in Locke’s Second Treatise, as a means to convey that humans do not need to follow just God and his divine law or a sole leader because if we all lived and followed the natural law of reason then we’d be better off.
Locke did account for, however, that some humans would not follow the natural laws, so he adamantly wrote about having Civil government as a means of protecting our liberties and property. Locke believes the way politics ought to function is through limitations and only solely to protect our natural rights and property. And although humans are giving up certain rights it is for the overall good of the public as well as the preservation of man. Politics to Locke were seen more so as a means to an end, because politics itself was not important, it only was beneficial to have when it kept society in check by making sure humans are not infringing others natural rights. However, a concept that was not conceived was how the very people who are in charge of making sure others are not infringing other people’s rights could be in fact taking away other’s rights in order to gain more power or some other benefit.
That is why it is detrimental that citizens make representatives accountable when it comes to making or enforcing laws. An example where representatives were given too much authority over its citizens was the situation where in the United States, cases that involved police officers who used violence and brutality to handle situations; some resulting in death. There’s been many cases of this where the officer would say it was self defense when evidence showed that it was not but because it is an officer of the law, it is easier to not be held accountable for one’s actions simply because the police officers know the courts system and what to do to not be found guilty. This is of course a generalization but also a common theme in past records where police officers have not been convicted of murder.
This shows a problem with our laws because we rely on the laws too much to make decisions for us. This is an unjust way to go about governing society because it puts everyone into the same grouping, rather than looking at the individual cases. It creates a disparity between people. Of course, it would be unwise to not be consistent with laws, they are documents that set guidelines for people and how they should act in order to not infringe other’s rights, but other factors should be considered when someone is being convicted of something. A way this could be controlled is by making cases blind cases, make sure selected jury is not biased, and by adding diversity to cases by having representatives who come from various strata in order to make sure everyone has a chance at being represented.
In Michelle Alexander’s chapter of “The Color of Justice”, a point made by the author is that our law is supposed to be “colorblind”, meaning that judgements are made not depending on skin color but rather objectively on the act committed by that one person. However, it is statistically seen that African Americans are disproportionately affected by the criminal justice system even though there has been a shift in racial attitudes, where a majority of whites are in support of colorblind norms. So why is it that the percentage of incarcerated African Americans is still increasing? A reason for this could be the mechanics behind the concept of laws. Laws are unemotional and rational, but they will never be able to solve racial issues because of humans.
Throughout history and society there has always been certain attitudes and stigmas made about certain social groups, humans are naturally emotional and biased so how could a law that is unemotional and unbiased be expected to solve the disparity between groups. This is the problem with legal positivism; where law is seen as a social construct that depends on social facts rather than actual merits. It’s the concept of norms associated with laws that still affect the minority. An example of this is the Constitution, this document is deemed objective, so because of this it is supposed to withstand time.
But who is determining that this document is objective and fair to all of its citizens— the majority is determining this. Because of these faults the minority will always be affected. Just like how a majority of whites are determining that the law is now colorblind when just a few decades before it was not really. The purpose of the “Color of Justice” chapter was to highlight this lack of fairness and how the color of justice is white because it is white people who are now saying that everything is fair when in fact nothing has changed but the words used to justify the laws.
In Charles Mill argument in The Racial Contract he discusses how it is more conventional to call upon philosophers such as Hobbes and Kant to represent the social contracts moral and political theories even though these white philosophers only represent what they saw as just so their ability to be fair and neutral is limited to the thinking’s of privileged white men. Mill’s main argument is that the core of the social contract is racism because what is seen as justice by white people only pertains to their race while all other races are excluded. A way law comes in to play is through application.
Will everything be able to take care of itself as long as law is followed? How does purposefully excluding context and emotion solve social problems when that is what social problems are based from? That is the problem with law, it is so holistic and “just” (or as satisfactory just as the people who created it wanted it to be. As well as how its mechanics caters to that specific groups of people’s needs) that it would only be effective if everyone was the same. But that could never be, so why are our laws catered to certain groups of people or ideals when it isn’t applicable to everyone who must end up following those said laws; this therefore creates untrue justice.
Overall laws can never be just because it was created to be objective and for objective people; which humans will never be. We do use reason and logic but most times when it benefits us or fits into our lives. We are all independent thinkers with our own thoughts, opinions, and identity so no law will ever be able to be applicable to everyone. This is alright because it is natural. However, when it comes to governing society, the laws made to give everything order must be met with some form of speculation to make sure that everyone is treated as justly as possible simply because it is our civic duty to make sure everyone is equal.
What we do now, either as a society, or what our government does for us affects our present and future. Some steps that can be taken to ensure our laws are as just as possible is by creating a diverse group of representatives to make sure everyone’s voice is heard. When it comes to the legal system a way to reduce bias and prejudice can be by more blind cases, better jury selection, and diversity. Another way bias in laws can be decreased is by a change in mindset, where the newer generations will take more time to be selective in who represents the people.
- Locke, J. (1690). Second treatise of government.
- Agozino, B., & Pfohl, S. J. (2003). Counter-Colonial Criminology a Critique of Imperialist Reason. Londres: Pluto Press.
- Wacks, R. (2014). Philosophy of law: A very short introduction. Oxford, United Kingdom: Oxford University Press.
- Alexander, M. (2012). The New Jim Crow- Mass Incarceration in the Age of Colorblindness. New York: New Press.