Thursday, August 27, 2009

Brown and the Rule of Law

I have always been astounded that a significant number of legal academics suggest that the Brown v. Board of Education decision was somehow contrary to the rule of law.

As Brian Tamanaha states in his excellent text On the Rule of Law the case "plagues mainstream legal theory to this day." Tamanaha quotes Raz: "The law. . .may institute slavery without violating the rule of law."

I posit this: the ultimate lawlessness is the wanton and pervasive destruction of human potential implicit in all forms of oppression, particularly racial oppression, which we know is an irrational basis for classifying individuals. The suggestion that slavery or Jim Crow segregation is somehow consistent with the rule of law renders that concept useless. If law fails to constrain those with power from the destruction of human dignity and potential then it both unjust and economically pernicious. In other words, it is evil and self-destructive all at once.

The rule of law thankfully began to end American apartheid on May 17, 1954. Prior to that date the American legal system was marked by deep seated lawlessness where individuals were unconstrained by law to irrationally destroy the potential of others. Brown strengthened the rule of law in America.

Either the law appropriately restrains power or it does not. That is the ultimate test of a well-functioning rule of law.

What does this have to do with corporate justice?

The consolidation of economic power at the apex of corporate America has also become unjust and economically pernicious.

The answer is the imposition of a rule of law to constrain the currently unbridled exercise of economic power through the domination of the public corporation by a small hyper-elite.

Politically the separation of powers implicit in the US Constitution created the possibility of the rule of law prevailing in the political sphere. We need an economic constitution that fragments corporate power far beyond the capabilities of Delaware and the current system of politicized corporate governance.

Whatever term is used, the law must operate to constrain those with economic and political power from abusing their power by profiting through the domination of the legal system. Individuals must be disempowered from imposing huge costs on society generally in order to achieve personal ill-gotten gains; gains that frequently are much less than the cost to society. If law fails to adequately constrain power, then it cannot be operating as the rule of law.


  1. Well stated. I agree that the rule of law is lacking in corporate America.

  2. You are so totally right dude.

  3. I thought this was an interesting analogy. It does seem that big corporations are using the lack of governance to their advantage. Even when a large corporation does something wrong, there are too many defenses to make any one person liable for the result. As far as the corporations are concerned, they will do whatever it takes to make the most profit and if doing so means manipulating the regulations in place, it's alright because no one person will have to be held liable.