of drugs, he answered: “Have you been to a jail? Those places are dangerous!’’’92
The truth is that inequality outside the confines of the courtroom eviscerates the equality within it. Steal a car and you end up in jail. Destroy the global economy and you are rewarded with billions of dollars. ‘Too big to fail’ becomes ‘too big to jail’. The reason is clear: banks, along with most large industries, spend millions of dollars lobbying and funding political parties. Roughly 3,000 lobbyists in Washington work on behalf of the financial sector. Since 1997, the banks have spent more than $3.6 billion lobbying the government. Over this period, bank profits have soared. In effect, the money spent on lobbying and campaign funding bought the deregulation that allowed the crisis to occur and, later, the influence to avoid paying for it. Perhaps even more significant is the revolving door between finance and politics. Executives from the financial sector are routinely granted top governmental roles as advisers, regulators and policy-makers while government officials are regularly given top jobs in the banking sector after leaving public office.
The influence we have over the formation of the law, the burden it places upon us, and our ability to defend ourselves from it, depend on the wealth and power we already possess. Large corporations routinely spend millions of dollars on political lobbying, the creation of think tanks, and the funding of political parties to induce governments to pass laws that protect their interests. In court, wealth continues to bring its advantages. It costs money to defend ourselves, and more money buys a better defence. Legal aid can go some way to levelling the playing field but it is often under-funded (particularly in the US), under attack, and is not available for all cases. Those with plenty of money can endure long and costly legal battles and, in some instances, escape criminal charges altogether by settling out of court. A standard strategy of corporations, when dealing with less wealthy opponents, is to offer a small sum by way of compensation and then threaten to engage in an expensive and drawn-out legal battle with an uncertain outcome if the offer is not accepted. Walmart has been accused of paying most of its staff less than $10 an hour, pressurising employees to work overtime for no extra pay and routinely locking them in warehouses overnight. Such treatment has led to at least sixty-three lawsuits in forty-two states, all of which Walmart chose to settle out of court for a tiny fraction of the wages it has saved.93 Moreover, because the law is complex and difficult to understand, wealth can buy the expert advice necessary to navigate it successfully and, wherever possible, to exploit its loopholes for personal gain – tax-avoidance being an obvious example.
Though laws may apply equally to all in theory, in practice there is little equality. Prohibiting sleeping under public bridges has no impact on the millionaire but to the homeless traveller it could mean hypothermia and death. A law against stealing bread places no burden on the affluent but a heavy one on those struggling to feed their children. Some laws explicitly target the most vulnerable people. In Florida, for instance, citizens have been banned from sharing food with the homeless. Arnold S. Abbott, a ninety-year-old advocate for the homeless, defied the law and was arrested and threatened with a $500 fine and sixty days in jail.94
The sea of inequality on which the legal system floats makes a mockery of the principle of equal rights before the law. The notion that the law treats all people the same, regardless of race, gender, status or creed, is a much celebrated ideal but, in a society in which the distribution of wealth, power and opportunity are so profoundly unequal, equality before the law is itself unjust. The assumption made by many legal theorists that, with few exceptions, ‘the same rules may be applied to all’ is a fantasy that becomes less justifiable the more unequal society becomes. This was not lost on the third American president, Thomas Jefferson, who said ‘There is nothing more unequal than the equal treatment of unequal people.’95
Private law
Who decides what counts as a crime? Who decides which criminals are held accountable? In 2002, three twelve-year-old British children were playing in the street with plastic toy guns. The game abruptly ended when they were surrounded by police patrol cars: the children were arrested, finger-printed, forced to give DNA samples and reprimanded for possessing realistic fake weapons. While in 2015, £5.2 billion worth of arms export licences were approved by the British government for regimes on its own human rights blacklist.96
A legal framework functions primarily to advance the interests of those who shape it. It determines the rules of the game according to which everyone must play. Different rules favour different interests. Slaves do not write the laws that oppress them. Colonies do not pass the laws that exploit them. Trade unions do not formulate the laws that criminalise them. The laws defining marriage for most of Western history, which effectively made a wife the property of her husband, were not drafted by women. Those who fought to end slavery, improve working conditions, resist colonialism, expand voting rights, achieve gender and racial equality, stop wars and protect the environment, repeatedly clashed with the law out of necessity, enduring police violence and imprisonment in the process. In each case, the law defended the privileges and prejudices of those with power against the rights and interests of those without it.
Adam Smith, the father of modern economics, observed in 1776 that ‘Civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all.’97 To the extent that the law is shaped and interpreted by a narrow set of elite interests, it degenerates into a means of defending privilege. In fact, the word ‘privilege’ originally meant ‘private law’. The less accountable a legislative process is, the more law enforcers are reduced to the status of a private army, whose primary role is to serve and protect those already in possession of the privileges that accompany wealth and power. Indeed, many of the police departments in the US originated as patrols to help wealthy landowners capture and punish escaped slaves.
The rights people enjoy today were won by those who were prepared to challenge the ‘private law’ of their time, acting outside it when necessary. It is to them we owe a debt of thanks for the political freedoms we possess – not to those law-abiding citizens who did nothing to challenge the legally sanctioned slavery, patriarchy, racism, apartheid, child exploitation, torture, imperialism, crippling poverty and disenfranchisement of the past, nor to the police and courts who upheld this legally sanctioned oppression.
Punishment is ultimately about power. When the formulation of the law results from great inequalities of power, its implementation becomes not a neutral act, but a highly partisan one, privileging one set of interests over the rest. Martin Luther King captured the essence of the problem when he asked us, in his ‘Letter From Birmingham Jail’, never to ‘forget that everything Hitler did in Germany was legal’. King himself, like Gandhi and Nelson Mandela, was imprisoned for breaking the law. Mandela was branded a terrorist, not just by the South African government but by the political establishments of the US and UK. And, although he was elevated in popular culture to the status of a modern-day saint after his release from prison in 1990, he remained on the terrorist watch list in the US until 2008.
The ‘terrorist’ smear continues to be widely used. Canada categorises eco-activism as a form of terrorism and a ‘threat to national security’. Those profiting from the destruction of the environment remain undisturbed by the law. In the UK, laws that were passed ostensibly to combat terrorism and anti-social behaviour have been routinely applied to people engaged in legitimate and peaceful protest; spaces in which protests are permitted, specifically those around Parliament, have been heavily restricted; ‘stop and search’ powers, created under broader anti-terrorism legislation, have been used to harass peaceful demonstrators; advocacy groups, including environmental campaigners and anti-war protesters, have been classed as ‘domestic extremists’ and infiltrated by undercover policemen who go to extreme lengths (including marrying unsuspecting activists and fathering children with them) to maintain their cover.
In Canada, in 2010, thousands of protesters streamed on to the streets of Toronto as part of a peaceful
