Joel Jacobsen

In 1929, a long-serving San Francisco police officer named Pete Fanning self-published Great Crimes of the West, telling the story of some of the more notorious crimes of the San Francisco Bay Area during the last decades of the nineteenth century.  While describing the highbinders who coalesced into Chinatown tongs, he mentions a secret tribunal established to settle disputes between gang members, saying it "was a sort of government which considered the government of the state secondary to itself."

Violence is always a type of government.  There are many reasons to object to Hobbes' definition of law (when "the command is a sufficient reason to move us to the action, then is that command called a LAW"), but when you look down a gun barrel, questions of political legitimacy aren't the most useful weapons of self-protection. 

The stunning memoir A Woman in Berlin: Eight Weeks in the Conquered City (the author chose to remain anonymous, for reasons that become obvious when you come to understand what she had to endure) reveals how quickly one law can be substituted for another.  For Berliners, there wasn't much point in telling the conquering Russians, "You can't do that.  It's not allowed."  The Russians could rape, and steal, and kill.  That was the new government, and it was up to the Berliners to adapt.

In peacetime, too, violence is a system of laws, displacing whatever laws might have existed previously.  A sociological companion piece to A Woman in Berlin is offered by Sudhir Alladi Venkatesh's American Project: The Rise and Fall of a Modern Ghetto.  The book shows with unsettling clarity that there was a government in charge of the Robert Taylor Homes.  But the government wasn't the City of Chicago, or the State of Illinois, or even the United States of America.  It was the gangs.

 A leading researcher estimates that about 1% of the population is psychopathic.  If the 99% are prevented from organizing themselves politically to obtain the police protection they want, the 1% fill the power vacuum.  Democracy - the "majoritarianism" so despised by judges (see post 54) - is replaced by the political system neatly summarized by The Clash in one of their best songs: "I have got the sharpest knife / So I cut the biggest slice." 

Presenting reality as a succession of stark choices can be an effective method of cross-examination.  ("Which do you prefer, governmental oppression or personal liberty?").   But it's no more than a bully's trick.  When judges allow themselves to believe that such phoney dichotomies are real (see post 70), they are mistaking forensic technique for thought.

Judicial decisions restricting the police haven't saved residents of the projects from governmental oppression.   But those decisions have helped to change the identity of the government doing the oppressing.