What's worse in the eyes of the law: oppression or arbitrary treatment?
The question seems obvious at first. Oppression is clearly worse; it makes violent the worst overreaches of tyranny and damages an entire class of people (however they are classified) at once. How could this even be a contest.
But I'm thinking, what law really seeks most is consistency. You could maybe even define law as the realm of social practice that seeks consistency within the society.
We know how important consistency is to humans. It's essential to psychic health, to planning (which includes investing of any sort, from picking where to plant crops to forecasting a tax burden) honestly even to the projection of oneself into the future. Consistency is possibly the indisposable rudiment of beauty, of all aesthetics, because it indicates a concept we will be able to grasp. Rhyming, monochrome colors, straight lines, story forms, an accurate likeness; all forms of consistency. Why? Because it indicates something under our current or potential control.
Out of the crooked timber of humanity, law is attempting to introduce consistency. We're very familiar with the idea that even if a law isn't just, it's at least got going for it that it introduces order. (The question of the political will of the people injured by the unjust law is different.) Way more fundamentally than it tries to improve the human condition, or whatever, law (as an artifact of social organization, not a cause of it) tries to impose order through consistency.
Well, oppression has a hint of consistency to it. A lot of times, the problem with oppression is precisely how consistent it is. It can be widespread and indelible. It can even be rooted in "legitimate" consensus, as is the case for, say, the prohibition against child predation. Our society's categorical opposition to people who feel that urge, or people who enjoy murdering, is a sanctioned form of oppression. The domestication of animals (not even counting their slaughter) is a form of sanctioned oppression. Even the modes of oppression that suck are in place because of at least some social legitimacy. It's basically impossible to have oppression that is not sanctioned by some body that holds political power. You could even make a relativist case that oppression is always legitimate.
So if the law is seeking consistency, oppression really isn't its opponent at all. I think a lot of the worst oppression are in place because of the law. The real enemy is arbitrariness.
Arbitrariness removes predictability, which offends us on a really basic level. (Is "fairness" another artifact of our need for consistency? It's definitely the ur-morality of any successfully scaling society.) The problem with the kinds of oppression we don't like, I think, is that it's arbitrary. The problem with discriminating against a racial group, in other words, is that they didn't do anything to deserve it --which is to say it follows from no discernible cause, which is to say it is arbitrary.
Basically, all I"m saying is that "law and order" are not separate things. The human endeavor towards law is really only a pursuit of consistency. (Kind of obvious now that I already wrote this all out. Shit!)
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