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UMass Amherst LEGAL 250 - LEGAL 250 Notes

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Access to the law and legal system is the ability to shape it, both in its meaning andunderstanding. While the factors that usually determine the power to shape law are not static, ingeneral, access to law has been held by specific groups of people: the wealthy, males, whites,and religious authorities. In constructing the law, these specific groups have traditionally usedtheir power to reinforce their dominant position and impede the ability of powerless groups tofurther their interests. It is this position of advantage that allows the prevailing groups tomaintain a system of inequality fortified by the law that protects their prosperity while forcingthe disadvantaged to appeal to problematic methods to promote their well-being as a result oftheir lack of access.In his speech, “Address to the Prisoners in Cook County Jail,” Clarence Darrow defineslaw as a creation of the rich, who, because of their wealth, own and control most of the propertyand institutions of society (Darrow 229). The access that comes with their wealth then grantsthem the power to construct the law in a way that sustains their elite position. For Darrow, as aconsequence of this system of power, the unprivileged individuals are forced to seek out other,often criminal means of living in order to survive. He explains this by stating, “The more that istaken from the poor by the rich, who have the chance to take it, the more poor people there arewho are compelled to resort to these means for a livelihood” (227). By wielding their power, therich have been able to consistently thwart the ability of the poor to access legitimateopportunities, often leading them to participate in activities such as robbery and burglary in orderto obtain money. Thus, according to Darrow, the individuals in prison are not there on accountof any inherent criminality, but because they live in a system where the only way to ensure thattheir interests and needs are served is to “break the rules of the game” (229). As long as there isan unequal distribution of the power that allows individuals to shape the law, there willconsequently be a system that perpetuates criminal activity as a direct result of this imbalance. Inthe eyes of Darrow, the only way to prevent the poor from pursuing illegitimate means ofsurvival is to create a system of equality, in which the power to construct the law is not restrictedto the wealthy, thereby allowing for the promotion of all interests (230).Similar to Darrow, Peter Kropoktin, in his article “Law and Authority,” discusses how aclass of individuals, in this instance religious authorities, acquired the power to shape the law. Associety became more divided and autonomous over time, Kropoktin claims that priests werecompelled to institute laws that reinforced their control of society. Because the power to shapethe law was vested in religious authorities, respect for the law came to be seen as moral behavior,and thus a blind obedience to authority began (Kropoktin 161-162). According to Kropoktin, itwas this forced respect for those in power that led society into a state of rebellion. He states,“Rebels are everywhere to be found who no longer wish to obey the law without knowingwhence it comes, what are its uses, and whither arises the obligation to submit to it, and thereverence with which it is encompassed” (160). Kropoktin conveys the idea that a system of lawfounded solely with the intent of perpetuating the position of those in power is inherentlyproblematic, as it forces individuals into a state of contempt for the law, and this undermines thevery purpose for which the law was instituted. Because religious authorities implemented asystem of law that was intended to serve their authority instead of the interests of society,individuals were compelled to question law, its origins, and above all its creators.Marc Galanter, in his article, “Why the Haves Come Out Ahead,” implies that proximityto the law and the legal system grants individuals the power to frame the law to serve theirinterests. Galanter focuses on the role of repeat players, or generally large units constantlyinvolved in litigation that usually have the advantages of experience, expertise, and resources topromote their long-term interests. A significant advantage of these units is their ability to choosewhich cases to adjudicate because of their constant involvement in the legal system (Galanter82). This allows them to subtly shift the law over time in a way that will best promote theirinterests, thereby continually reinforcing their advantageous position. Galanter notes, “…thosewith other advantages tend to occupy this position of advantage and to have other advantagesreinforced and augmented thereby” (83). The ability to affect the law reflects power; those in theinferior position are then forced to become involved in a system in which they benefit the mostby having the least influence on the law. As a result, one-shotters, or units who infrequentlybecome involved in the legal system, are generally compelled to prefer a settlement in order tomaximize their tangible gain (82). One-shotters often lack the access to the legal system and theresources necessary to have the same relative power in constructing the law as the repeat players.This unequal distribution of advantage is problematic because the law becomes slowly skewedtowards the interests of the more powerful, most often the repeat players. Although the one-shotters are compelled to prefer the options that will maximize their immediate gain, they willsimultaneously maintain a system of law that reflects the position of the more powerful.Galanter claims that in order to equalize the advantage of both parties involved, access to thesystem and the necessary resources must be made available to those who have not had them, thusallowing repeat players and one-shotters alike to shape a law that encompasses all interests.In her speech, “A Rally Against Rape,” Catherine MacKinnon understands rape as anissue of both sexism and racism, as she describes a cultural perception of rape that protects theposition of white men. Historically, the white male in American society has held more powerculturally, socially and economically, and their superior position has given them the ability toshape the law to protect themselves. With regards to rape, this is most clearly seen in the societalmisunderstanding of rape. As MacKinnon notes, the kind of


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