The governing philosophies that rule the legal system are: (a) “legal realism” by which is meant that the judge decides whom he wants to prevail (or who “should” prevail as the legal theorists would claim, not wanting to let the cat out of the bag that the judge is not a philosopher king and is likely to rule for his former law partner or for the utility companies); and (b) “critical legal studies” which is an basically a Marxist theory that mirrors “legal realism” but is even nastier because the criteria by which the judge is supposed to decide who should prevail is based on which litigant belongs to the “victim class” and which one belongs to the “oppressor class.”
These two philosophies work very well upon a foundation of the “common law system” which we in Anglo-Saxon countries “enjoy” as opposed to the code system most European countries use.
When I was in law school, the professors would tout the benefits of the common law system especially its “flexibility.”
What has happened is that on most issues there are contradictory so-called “precedents” from which the judge can choose much like an artist chooses which color to use from his palette.
I followed the cases of several White dissidents who were prosecuted in trumped up claims that they incited someone else to commit a crime. (The SPLC’s Morris Dees specializes in such cases and such claims.)
Some decades ago a White businessman won a lawsuit against the NAACP arising out of a boycott of White-owned stores in a small town in Mississippi. The local Blacks had ignored the NAACP’s calls for the boycott. Enraged by the failure of the brothers and sisters to obey instructions, the NAACP sent the brother of Medger Evans to speak in the local Black churches.
In his sermons Evans warned the local Blacks that the NAACP was going to be taking down the names of Blacks who shopped with White merchants and that they were “going to break your necks.”
Sure enough the houses of Blacks who didn’t obey were burned down.
This was the case of Claiburn Hardware vs. NAACP.
The U.S. Supreme Court indignantly overturned the judgment against the NAACP and said that the 1st Amendment protected such speech. In order for speech to constitute an incitement and to give rise to liability the speech had to be a direct and immediate incitement.
This “precedent” has been cited by attorneys defending White activists over and over again. Never has any Judge cited it or relied on it. Instead, the Judges have chosen other precedents and have allowed Dees to get judgments against White activists whose statements really did not threaten any violence at all. Dees and his witnesses were allowed to deconstruct the text of the statements and to explain to the jury that when a White racist tells an audience “we are non-violent” and things like this, that such statements are “code” for “go out and commit crimes.”
The fact that not one court has ever cited Claiborne Hardware vs. NAACP in cases brought against White activists even if only to distinguish it shows just how fixed the system is.
The icing on the cake is a little known “rule of court” in the federal courts which allows the Judges to make a ruling and include in the ruling a holding that the decision will not be precedent on any other case and to order that the decision never be published!
This was done in the Georgia case of Carver vs. State so the federal courts could uphold a kangaroo court conviction of a Klansman in which — among numerous other outrages in the conduct of the trial — the trial judge denied the defendant the right to subpoena evidence in violation of Mapp vs. Ohio and the Fourth Amendment.
Almost no lay Americans are aware of this unspeakable star chamber rule and the vast majority of lawyers don’t know about it either.
There was a proposal a few years ago to change this rule and the federal judges vehemently opposed taking their “discretion” away from them.
The American justice system is held in awe by its victims who haven’t got a clue about how it works. Its filth and corruption are made all the worse by its hypocrisy.
Obviously, there are many judges who are fine men and women and do follow the law.
But they are very much in the minority.
As Montesquieu said there is no crueler tyranny than one in which the forms of the law and justice are maintained without the reality.
Thorborne Richardson is an attorney.