I've spent an hour trying to come up with a compelling intro to this piece, so to start, some advice from many lawyers whose time at the bar has been longer than my life so far:
Point first.
Let's start with the conclusion
If you want to fight for a better world, you're eventually going to have to learn at least a bit about the law as it actually, currently exists. Not necessarily a ton, but at least enough to dispel any severe misconceptions that, if maintained, will inevitably bite you in the future.
Why should I read this?
Because some basic awareness about jurisprudential theory; how history, economics, and politics affect the development and state of the law; and where law can be found; are critical for starting to understand the law as a political force that actually affects you.
And why is understanding the broadest strokes of the law important? Just as humans achieved the freedom to live through severe injuries by discovering that it was germs that killed us when we were undergoing surgery; and just as we achieved freedom from the ground by understanding gravity; freeing ourselves from capitalism, the colonialism that enabled it, and the imperialism it created to strengthen itself, requires that as a whole, we have an understanding of this system — and that none of us have dangerously misinformed analyses of it that will actively undermine our efforts.
The issue
I could frame this as just being "people don't get the law and that's annoying", but that is not the essence of the problem. Conversely, as someone with a law degree, who has read god knows how many pages of statutes and case law and lengthy schedules to regulations and treatises on international law and what not, the heart of the issue is:
The law as it stands is, in large part, a mechanism to regulate, and make predictable, the machinations of a cruel, bloodthirsty system that is intrinsically offensive to most people's senses of fairness and human decency.
The degree of obfuscation when it comes to critical pieces of understanding the law — say, the sheer expense involved in acquiring law textbooks or other such sources, which are vastly more efficient than hunting through case law and statutes without a clear sense of how to sift that information into a cohesive whole — is a substantial element. Understanding the law is not easy, even if it's less intractable than many people think. But the laws of capitalist states built on centuries of genocide, colonialism, and imperialism are fundamentally going to seem wrong to those with both kind hearts and any consciousness of how violent the current political/economic system is.
But how could this system even be legitimate? How could the law really be like this?
A brief bit of historical context
Coming from a common law perspective, the legal system we live under today has some degree of clear historical roots reaching back about 2,600 years. This has ranged from the Greek city-state paradigm from which the Solonian Constitution arose, to Roman law all the way from the Twelve Tables to the sprawling legal institutions of the 3rd Century, to the customary laws of Germanic migrants and settlers in Britain — and this only brings us to before the Normans arrived. The Normans brought their own laws; a blend of yet other Germanic nations' customs and that of the Roman Empire.
And this is where the story of The Common Law™ usually starts. William and his posse of noble failsons arrived in England, and took this opportunity to establish a new legal system from the ground up — uprooting the legal and social relations of everyone who was there before them.
This, in turn, created, much earlier than a lot of the rest of Europe, a highly unified, centralised government, with one hierarchy of command, all the way from God down to the lowliest peasant. And this context is where the common law, strictly, was born. These courts mostly sought to regulate the infighting of nobles; this is why property law has almost a millennium of technically "good" case law, whereas positive human rights enforceable against the government only arose within some of our parents' lifetimes. This remains a consistent theme throughout the history of the common law; the most rigidly defined structures are the ones intended to mediate disputes between the powerful, whereas the law's concessions to everyone else are more vibes-based and ephemeral.
Thus, the law existed to maintain the compliance of lower nobles with the king, and give the government enough ability to respond to the concerns of commoners to stave off an unsurvivable degree of insurrection.
Which has influenced every change in the law since. A long line of avaricious monarchs whose tyranny ended only when parliaments accountable to new ruling classes were ready to take over the task of dishing out violence; the "discovery" of the New World and thousands of subsequent, still-ongoing genocides; the Trans-Atlantic Slave Trade; Cromwell's theocratic zealotry and murderous campaign against the Irish; the advent of the joint stock company and thus capitalism strictly; the mass deportation of the peasantry to the cities by means of violent land enclosures; the United Kingdom's ascent as an imperialist power, adding the force of capital export to its already centuries-long tradition of bloody colonialism; the century and a half of horrors unleashed by the Scramble for Africa; the meaningless savagery of the First World War; the capitalists using limited socialist reforms to bribe white people into turning away from worker solidarity; the capitalists subsequently getting buyer's remorse as profitability cratered, and thus implementing neoliberalism to claw back promises they refused to keep — this is the provenance of the laws that govern us, and the ideologies and philosophies that buttress those laws.
However, to analyse the law as mechanically mediating the disputes of the haves and have-nots, devoid of any other factors, will also lead to incorrect understandings of it.
The nature of law
Before class struggle even gets involved in the creation of law, where do we even get law from?
We make it up. Well, that's putting it a bit unseriously; law is a social construct, in the same way as language, gender, and currency. It arises from our interactions with each other; it arises from our interactions with nature; it arises from our ability to observe, learn, and react.
But human minds aren't perfectly rational; in fact, we deeply rely on heuristics, prior assumptions, context, and even emotional preferences. So "natural law" theory, positing that there is precisely one True™ law that can be interpreted from nature (and which is often found in more pretentious, thoroughly-researched even if gravely ill-informed justifications of some of the most hideously reactionary policy proposals ever), is not an adequate framework here—
But at the same time, it is not hopeless. There is a reason that some societies can persevere through over ten millennia, whereas some others have a hard time going for a few centuries without facing existential threats. And there is a different, much worse reason that certain societies with a tendency toward catastrophe nonetheless manage to snuff out so much of their competition. Ultimately, the law that is; the law that still gets to be; is the law that survives, whether via maintaining a steady state adeptly, or through sheer determination, or through running roughshod over any perceived competition.
Notably, this variable is not particularly a function of the "correctness" of any laws, and in any case, has nothing to do with "legitimacy".
The (il)legitimacy of law
Many jurisprudential theorists will take issue with what I'm about to say, but:
"legitimacy" is just not a useful framing device for when you're trying to understand the law from a perspective of how to improve the world or otherwise conduct political action. This heuristic, a strong reflection of people's (often correct) innate senses of justice, can unfortunately be interpreted deeply incorrectly. Indeed, this is at least where I usually see people's understandings of the law going off the rails — where "legitimacy" gets brought in.
"what the law should be" is not "what is the law; as in, what is are the rules that dictate the behaviour of the normative, coercive, and violent structures that will respond to my behaviour". "should be" is critical; we can't hope to improve the world if we don't have a vision of what we want the world to be; but it's also not what we need to respond to right now.
And if you go too deep down the "legitimacy" rabbit hole, you get into "sovereign citizen" legal thought. Which is basically the legal equivalent of magical thinking. I have seen this from people with liberatory or even revolutionary political lines, and this is more dangerous than absolute ignorance as to the law. I feel the need to single this out, because when your understanding of the law is entirely fanfiction, you are going to be worse than ineffective in court. This is basically a foolproof way to speedrun being branded a vexatious litigant.
So what should we look at instead of legitimacy?
Well, for starters, the levers through which law is enforced. What enforces the law? Who does? In capitalist states: a complex combination of regulatory bodies, courts, tribunals, the police, other state agents with investigative if not law-enforcement powers, and private actors who can be compelled or coerced into helping the government out with upholding the law, if they don't just do it willingly or proactively.
Obviously, knowledge of psychology, sociology, logistics, social engineering, various hard sciences, information security, and even military tactics and strategy can be part of knowing how to respond to these projections of capital's power, but if you want to predict the behaviour of the legal system (both strictly and narrowly), one critical part is understanding the law as it is.
And what is that?
First of all: it's not your vibes and intuitions. Second of all: it's not something a friend of a friend heard from their buddy who's studying for the LSAT or whatever. It's actually usually much more public: statutes, regulations, executive orders, treaties, and case law.
What I want to stress here is that the law is knowable. Maybe not in all its breadth and depth for any single person, and there are definitely internal policies at police departments and prosecution services that aren't by default public, but a huge portion of the law that people usually end up having to navigate can be found, for free, right from the device you're using right now. (Though there're more expensive, or less legal, ways of acquiring textbooks and other such sources, that take all these sources of law and tie them into a much more accessible package. Just throwing that out there.)
But if it's both comprehensible and also so offensive to human decency and dignity, why is it still the way it is?
Justifying unjustifiable law
The part of the legal iceberg that is truly insufficiently documented is how each person implements it, which, ultimately, comes down to a question of theory of mind.
Who drafted the statutes in question? What were they thinking? What beliefs did the judges who interpreted those statutes into a clearer form bring to the bench when deliberating on the cases that defined those interpretations? What's going through the head of the cops standing around your protest? What's on the prosecutor's mind the day that they're ultimately either going to approve or reject the charges that the police have recommended against you? What life experience is informing the judge who will ultimately have to sift through every fact and bit of law pertinent to your case, determine of every element of the charged offences was proven past a reasonable doubt, and, if you are convicted, determine what sentence is fit?
Or conversely: who are you signing a contract with? What statutory regime does that contract exist in, and who drafted that? What does the person you're signing the contract with think you're thinking? What will a chambers judge think when presented with the notice of civil claim? What will yet another chambers judge think when presented with the pre-trial conference?
Law is powerless without broad acceptance or acquiescence by those who must follow it (or, in lieu of such, sufficient hard power to suppress inconvenient elements), sure, but law is nonexistent without minds to think it. What informs these minds, though? Life experience, of course, and also people's (awareness of their) cold, hard material interests, as well as their inner subjective senses of "right" or "fair" or "reasonable"?
Yes, all of those. Which, in turn, are all informed by, to put it simply, ideology.
The law; at its most brutal, or uncharacteristically merciful and caring, or laughably pedantic, or clearly fraught with the uneasy truces of hundreds of legislators; is written by people. To be clear, most of the directing minds in this process are either from amongst the ruling class, or they are aspiring members of said ruling class, or they are traitors against the rest of humanity, compelled to advance violent causes by various forces. But at every stage, this complex dance of cold, hard physical reality; the "bottom line" of every actor in the system; the beliefs that people bring into their handling of the law; and the way that people want to be seen; all influence what the law, practically, is.
So, ideology. Unfortunately, we still live in a society where many people sincerely buy into the entire script of capitalism, and where likely many more, despite realising that this system is untenable, still buy into the propaganda that has been peddled for two centuries to convince everyone that a better world is impossible.
And it's that ideology that lets average people become accomplices to a system vastly more violent and nasty than they themselves might be outside that systemic context. It's that ideology that lets so, so many people surrender to our current legislative and executive environment, in all its manifest unfairness. It's that ideology that ensures that most judges will never think twice about the violence that following the law dutifully can bring about, or which constrains even those who have second thoughts about following the dictates of cynical legislators or long-dead jurists.
Which is to say:
It's important to both be aware of the law on the books as it is, but it's just as critical to have a historically, materially grounded analysis of the various actors in the legal system, so you can actually understand the context of the law, the interpretive doctrines and approaches necessary to reach accurate predictions of how the legal system will handle any given dispute, and so that you can, via whatever means appropriate, keep yourself out of reach of the long arm of the law.
"the law" is only law insofar as it's understood and implemented, in the way in which it's understood. There are no secrets to "understanding" the law — the law is whatever the law is in practice, and there's no magical "more legitimate" source of law that will automatically trump "less legitimate" law.
If you've got better law than the existing legal order, well, that's what reform and revolution are for. Actual material steps to change the law, not just bare assertions based off of misunderstandings of someone else's legal order.
Where can I learn about the law?
I'm going to limit this to sources that:
- are available for free
- aren't some form of "piracy"
- aren't obvious, like searching up "(issue) wikipedia" or something along those lines.
Offline, generally
Aside from your local library branch, I'd suggest checking if your nearest courthouse has its own publicly available library, or if your nearest law school lets the general public browse around.
Canada
If you want to see case law, hands down, the best option is CanLII: https://www.canlii.org/en/. CanLII has a vast range of decisions from every court in the country, and has decisions from tribunals that even some subscription services don't bother to compile. CanLII does also have (mostly?) complete sets of statutes and regulations at the federal level and every province and territory. For statutes, I would also recommend checking out the relevant government's website on the subject — for example, BC's statutes/regulations search tools are a lot more powerful for that very specific area than what you've got on CanLII. But government websites also basically don't touch case law.
UK
I've never used this before, but BAILII looks more or less comparable to CanLII in functionality — https://www.bailii.org/. Also, on the right panel, there's a list of many other free legal information databases.
Common law jurisdictions generally
Another LII! http://www.commonlii.org/.
US
The Legal Information Institute, run by Cornell: http://www.commonlii.org/.
