Living Out Critical Legal Theory

by Victor Davis Hanson

It may not have been the aim of Missouri Highway Patrol captain Ron Johnson to outsource security responsibilities to someone affiliated with the New Black Panthers and a legal activist group, but that is the impression that one receives from listening to his exchange with and praise of Malik Shabazz. If this is the same Malik Shabazz who has a long history of virulent racist and inflammatory anti-Semitic statements, then there has been at least a partial erosion of legal authority in Ferguson. 

Unfortunately, three diametrically opposed forces are now in play:

1) the more complaints against the so-called militarization of the police, the more some radical groups seem to have been empowered to commit violence; 

2) the angrier the demands are for quick justice and punishment of the officer in question, the more videos, first-hand accounts, and the autopsy reports suggest complexity and ambiguity about the train of events that led to Mr. Brown’s death; 

3) the more the canonization of Ron Johnson, the more problematic his leadership appears in restoring order, staying neutral as a police officer charged with quelling violence, and protecting the property of innocents who had nothing to do with either the shooting or the responses to the shooting.

Apparently what will now stop the violence is not state authority and Mr. Johnson’s empathetic racial editorializing, but either bad weather, popular justice meted out to the police officer in question, or eventual ennui and exhaustion on the part of satiated looters and rioters — or all three.

In some sense, Ferguson is emblematic of our times in which the sanctity of established law exists only to the degree that it is considered useful in promoting a more egalitarian agenda. In the matter of the recent influx at the southern border, we were told that the crisis atmosphere, and the perceived just cause of impoverished foreign nationals seeking to cross the border, made existing immigration enforcement either unfair or irrelevant. A new policy of open borders then emerged with the power of law and the resources of federal enforcement to give it effect.

So we live now, I think, in service to critical legal theory: Legal statutes are seen as constructs that legitimize the prejudices of the wealthy and the privileged of society. Our so-called legislatures and judiciaries use the law as means of coercion to ensure their own position in a most unfair hierarchy. In response, the proverbial people, whether in Ferguson or at the border certainly, or, yes, at the Obama Department of Justice, have the moral right to ignore these constructs and instead to fashion their own sort of higher justice, which deserves to be canonized as legal and binding.

And so we get the disreputable Malik Shabazz as a Robespierre-like street arbitrator of calm or violence in Ferguson, various ethnic pressure groups as de facto legislators adjudicating who will be granted access to the United States, and the current administration able to pick and choose which particular existing federal law is deemed fair and useful and which discriminatory and counter-productive — and rendered therefore null and void.

In all these cases, any particular law at any particular moment can be judged obsolete and an impediment to social justice — and so it can be replaced immediately by a sort of revolutionary justice with the full backing of the administrative state. 

In that sense, even the old racial warhorses Al Sharpton and Jesse Jackson have become passé, as we’ve evolved now well beyond the misinformation and racialist politics of the Tawana Brawley carnival, the Duke Lacrosse caper, and the Trayvon Martin controversy. And so what was once written off as street theater has now been elevated to revolutionary jurisprudence — a lasting legacy of the Obama administration in general, and in particular the Holder Justice Department.

I think all that is what the confident Mr. Shabazz was trying to encapsulate to a receptive but somewhat baffled Mr. Johnson at the press conference on Saturday.