The creation and maintenance of a state is an ongoing exercise in force. Without the force the state will not continue. There are many societies throughout history that existed quite well without one, and recently I’ve been thinking about how each of experiences the force of the state differently, now that virtually all people live in them. I recently read that no group of hunters and gatherers or pastoralists has ever willingly transitioned to settled life, because it makes them easier to control and tax [1], and there is a vivid description of the violence and political machinations required to assert governance on others during creation of the Zulu kingdom in South Africa in Kent Flannery and Joyce Marcus’ book The Creation of Inequality [2].

Nevertheless, for some the state doesn’t intrude too greatly, and, outside of income tax season, it mostly just clears the way—making sure other people aren’t too excessively poor and sending assistance if there is an emergency while they’re on vacation. For others, it descends regularly with penalties for minor infractions that are impossible to discharge and an obfuscating barrier of impenetrable language and official process that is indistinguishable from a conspiracy.

A small number of people, such as police officers, judges, and prosecutors, take on the role of enforcing the power of the state. I imagine being called to the bench and feeling the weight of the state as one takes on the responsibility of becoming the personification of the force of law in the courtroom.

The courts convey their power through imposing architecture and official robes, which can seem comfortingly traditional or alienating depending on the audience. Over time, we have removed some of these elements to make the courts feel more inclusive, but I worry there is danger in hiding the reality of what’s happening. Putting on a special outfit and sitting in a special room signals that judges are separating themselves from the rest of society while issuing judgement, which has the purpose of signalling that it is not personal but state power the judge is exercising. This is why I find it shocking when I hear stories about judicial appointees who are expected to fulfill the political goals of prime ministers or presidents.

The black cap, which English judges wore when sentencing a person to death, is an excellent example of this. I imagine the solemnity of the moment of pulling out the cap, and the terrible responsibility of making the decision that the state will end someone’s life. Though the death penalty is no longer imposed in England, the cap is still part of a judge’s official regalia and carried as part of full ceremonial dress: the power of the courts over life and death is still implied.

Many people don’t get as far as speaking with a judge, or perhaps even a lawyer, and suits, long complex documents, registry desks, and law offices, are as imposing a barrier of signaled power and exclusion as a judge’s robes for many people who become involved in the legal system.

They are stuck in the registry office trying to get help filling in their forms and in the library trying to get help with understanding what they need to do. The staff they interact with in these places become the courts’ gatekeepers, though they may perceive themselves to have very little power. Many of the people trying to navigate the legal system don’t have the wherewithal to interact with the state at a level that would allow them to get past that barrier.

Their experience of the state is indistinguishable from that of people confronting a secret society with absolute power over their lives.

This is the experience of people who start movements like Black Lives Matter and Idle No More. They understand that not everyone experiences the benevolent state that provides clean drinking water, quality education, and sends in the army to rescue them if a situation is bad enough.

This is also where conspiracy theories come from: people go to people they know and trust to find information to make sense of a system that they understand as oppression. They speak to each other and try to work out their rights and how they can navigate a system they don’t understand. Then when untrusted official sources tell them things that conflict with what they have worked out together, they don’t change their minds.

For people who interact with the public, this is an important thing to consider. In the lives of those people you have immense power to move their matters along, to explain things they don’t understand, and to help their lives go more smoothly. In some ways, you have as much power over this person’s life as the judge this person may get to stand before and make his or her case.

I have a friend who told me about working as a manager in a public library and being called to ask a drunk person to leave. She described taking on the role of state authority, how that authority was recognized, and how strange it was for her. Everyone in the justice system who interacts with the public takes on some of that power for someone.

References

[1] James C. Scott, Against the Grain (New Haven, CT: Yale University Press, 2017) at 8.

[2] Kent Flannery and Joyce Marcus, The Creation of Inequality: How Our Prehistoric Ancestors Set the Stage for Monarchy, Slavery, and Empire (Cambridge, MA: Harvard University Press, 2012) at 348-54.