But still, above all this, stealing stuff is still supposed to be a crime.
The same is true, of course, in bankruptcy. While corporate debtors* can pay pennies on the dollar on most other forms of debt -- bankruptcy courts can force all their creditors to take haircuts, so long as they abide by the laws of debt priority, of course -- individual debtors don't get the same benefit.
We can't, for example -- and depsite President Obama's profuse promises -- reduce our homeowner mortgages. And we can't, for example, reduce our student loan debts.
But, again, above all this, in both instances we're supposed to avoid the use of debtors' prison while apportioning debt-reduction fairly among creditors.
All I can say -- thank goodness we have one standard for important rights like free speech. Wait a mintue -- no, that's tiered too.
How do we get away with this stuff, operating under a single theory of what justice is supposed to look like, but then dividing up the nuts and bolts of it so unfairly?
Prof. Douglas Litowitz suggested the following, an argument that resonates:
For Marx, the law was similar to other cultural institutions in that it arose in a mediation of the underlying contradictions of the capitalist system, particularly the conflict between classes (bourgeois versus proletarian). To explain how class conflict played out within the legal system, Marx devoted an entire chapter of Capital to the legal battles over the length of the working day, which he described as “protracted civil war, more or less dissembled, between the capitalists and the working class.” In other words, this was a physical and material struggle over working hours and conditions, a struggle that might otherwise have been fought in the streets and factories, that was instead sublimated to a more abstract level and played out in the court system.
The underlying contradiction simmering beneath the surface (the poor want limits on the working day while capitalists do not) are then glossed over with the enactment of a single legislative decree that is wrapped in the mantle of universality and reason, cloaked with abstract rationalizations about freedom, autonomy, democracy, and equality. The resulting legislation does not, on the surface, bear the marks of a class struggle; to the contrary, it appears as the product of deliberation by a representative assembly in the finest tradition of democracy. In other words, the surface of legal doctrine gives no indication of its class bias.
Perhaps the best illustration of this is Anatole France's quip: “The majestic equality of the law . . . forbids the rich as well as the poor [from] sleep[ing] under bridges, to beg in the streets, and to steal bread” his point being that such laws are meant to apply only to the poor (since the rich have no need to sleep under bridges) but they are couched in universal terms as applying to all people rich and poor, since a law that too clearly betrays its class bias would offend the sensibilities of the ruling class. Therefore, the law is the product of mediation between classes, but this mediation is skewed by the imbalance of power between the classes and then camouflaged by the surface universalism of the law which seems to apply equally to all persons of all classes.So the overarching "theme" of the law (e.g., stealing is bad, debts should be forgiven while preventing moral hazard, free speech is important) is just a story. The reality is the nuts and bolts, the tiering. Just hopefully the public doesn't notice.
*Note that corporate debtors can do this without actually having to be insolvent. The blessings of Chapter 11.
