THE GREENING OF AMERICA by CHARLES A. REICH

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5. LAW:  THE  INHUMAN  MEDIUM
Law is supposed to be a codification of those lasting human values which a people agree upon. "Thou shalt not kill" is such a law. The Corporate State is a distinctively legalistic society. It utilizes law for every facet of its activity--there has probably never been a society with so much law, or where law is so important. Thus it might be expected that law would represent a significant control over the power of the Corporate State, and a source of guidelines for it. But law in the Corporate State is something very different from a codification of values. The State has transformed it.  During the New Deal period the law was gradually changed from a medium which carried traditional values of its own to a value-free medium that could be adapted to serve "public policy," which became the "public interest" of the Corporate State. This produced law that fell in line with the requirements of organization and technology, and that supported the demands of administration rather than protecting the individual. Once law had assumed this role, there began a vast proliferation of laws, statutes, regulations, and decisions. For the law began to be employed to aid all of the work of the Corporate State by compelling obedience to the State's constantly increasing demands.  One area in which this can be demonstrated is the field of constitutional rights. The first point that must be made is that despite the vast growth of corporate power the courts, except in the area of racial discrimination, have failed to hold that corporations are subject to the Bill of Rights. A mere statement of this fact may not seem very significant; corporations, after all, are not supposed to exercise the governmental powers with which the Bill of Rights was concerned. But this has been radically changed by the emergence of the public-private state. Today private institutions do exercise government power; more, indeed, than "government" itself. They decide what will be produced and what will not be produced; they do our primary economic planning; they are the chief determinants of how resources are allocated. With respect to their own employees, members, or students, they act in an unmistakably governmental fashion; they punish conduct, deprive people of their positions within the organization, or decide on advancement. In a  sweeping way they influence the opinions, expression, associations, and behavior of all of us. Hence the fact that the Bill of Rights is inapplicable is of paramount importance; it means that these constitutional safeguards actually apply only to one part (and not the most significant part) of the power of the Corporate State.

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We have two governments in America, then----one under the Constitution and a much greater one not under the Constitution. Consider a right such as freedom of speech. "Government" is forbidden to interfere with free speech, but corporations can fire employees for free speech; private organizations can discriminate against those who exercise free speech; newspapers, television, and magazines can refuse to carry "radical" opinion. In short, the "inapplicability" of our Bill of Rights is one of the crucial facts of  American life today.  But does the Bill of Rights afford protection even where it directly applies?  The Supreme Court decisions of the last few decades are not reassuring. In its adjudications the Court gives heavy weight to the "interest of society."  It defers to what the legislature-executive-administrators have decided. The commands of the state are to be overturned only if there is no "rational" basis for them or if they contravene an express provision of the Constitution, and that provision is not outweighed by "the interest of society." The result over the years has been that virtually any policy in the field of economics, production, planning, or allocation, has been declared constitutional; that all sorts of decisions classifying people in different and unequal statuses for tax or benefit purposes have gone unquestioned; that peacetime selective service has been upheld; that free speech has been severely limited.

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A second area where law has been made to serve the state is that of federal regulation of economic activity. Here, if anywhere in the law, one might expect control to be exercised over corporate power. But the story is the same as the story of constitutional law. In the first place, most regulation is either very superficial or does what the regulated industry really wants to be done anyway. Regulation polices the outlaws, prevents unruly competition, limits entry into a field, and in effect rationalizes and stabilizes industry. Gabriel Kolko, in The Triumph of Conservatism, suggests that regulation began performing this function as long ago as the so-called Progressive Era; and surely regulation performed largely this function under the New Deal. Food in interstate commerce must be properly labeled, inspected, and not adulterated. Stocks must not be sold in a misleading way. These are regulations with which any industry can feel comfortable. Moreover, regulation has to a large extent been taken over by personnel representing the thinking and interests of those supposed to be regulated.  The inadequacy of regulation shows most clearly in the decisions made concerning allocation of valuable resources. Consider the television channels, owned by the public and licensed free of charge to various applicants (who can make a fortune out of them, and then sell them for millions of dollars). The FCC could have distributed these channels to a wide spectrum of applicants; there could be stations controlled by blacks, by the poor, by students, by universities, by radicals, by groups with various cultural interests. The opportunity was there. What did the FCC actually do? A large number of stations, the most desirable of all, were given to the three giant networks, which proved a crucial aid to the networks in establishing domination over the entire industry. most of the remaining stations were given either to already established powers in the mass communications field, such as newspapers (with the result that in many a town the principal station would be given to the principal newspaper, so that the sources of information in the town tightened rather than loosened), or they were given to giant corporations. Regulation proceeding strictly according to law thus had the effect of giving a television monopoly to power groups in the Corporate State, and excluding all others by law.

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While furthering the power of the Corporate State, the law has also served the function of advancing private interests. As the nation has become a legalistic society, law has increasingly become the medium in which private maneuver for power, status, and financial gain could take place. It has become a huge game board, like Monopoly, on which expert players make intricate moves to positions of advantage. The game of law is played with all of the legal powers of government to provide benefits, subsidies, allocate resources and franchises, and grant special exceptions and favors. It is played with the whole property-status system in which a move from one status to another provides different and increased benefits. It is played with all the duties imposed by law on citizens, including the tax laws and the draft. lawyers are the professional strategists for this game and vast amounts of energy and activity are poured into playing it. The legal game board builds up into structures that embody, "in the law itself", almost every inequity, injustice, and irrationality that has become accepted in our society. Among the greatest examples are the federal tax laws and the draft. the tax laws are surely one of the most intricate and remarkable structures of inequity that the human mind ever devised. There are hundreds of pages of inequities; special privileges of every imaginable sort. It seems accurate to say that the one overriding principle of the tax laws is that inequality and special favors are the rule that governs all. If possible, the draft law is even worse. For it sends some young men off to risk their lives and lose long years which might be spent in ways of their own choosing, while others are privileged to escape any military service. We need not linger here on facts that are so well known; the point is that the tax structure and the draft are not unusual examples of how the law works; they are entirely characteristic examples of what is true of the law as a whole.

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Viewed in a broader perspective, it can be seen that for each status, class, and position in society, there is a different set of laws. There is one set of laws for the welfare recipient, one for the businessman. there is one set of laws for the government employee, another for the congressman. There is one set of laws for the farmer, another for the writer. These differences are not limited to any particular area or subject matter; for example the constitutional right of privacy is treated differently for a businessman or farmer than for a welfare recipient. A person receiving Medicare is required to take a loyalty oath; others are not. If "law" means a general rule to govern a community of people, then in the most literal and precise sense we have no law; we are a lawless society.
Behind this lawless use of law lies the fact that the greater the quantity of legal rules, the greater the amount of discretionary power is generated. If a licensed pharmacist is subject to fifty separate regulations, he can be harassed by one after another, as soon as he proves himself to have complied with the first. One school of legal philosophers has long advocated a society in which precisely drawn laws would give everyone the freedom of knowing his exact rights. But in practice, experience has shown that the greater the number of laws, the greater the resulting discretion, and the more lawless the official part of the state becomes.

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For blacks, for anyone with long hair or non-conforming dress, even for youth in general, the law and police have become something to fear. The long-haired youth who drives a car is likely to be stopped, searched, and harassed by police over and over again because of his appearance alone. Blacks have experienced a similar arbitrary discrimination for years. Youth in general find curfews and other laws specially designed to "keep them in their place." All of these groups feel the law to be their enemy in two ways. First, because of the way it is enforced against them. second, because in a larger sense it is constructed against them; tax favors, subsides, and privileges are denied them and given others; special penalties are reserved for them alone.  what we fail to realize is that there is a basic pattern to this kind of lawless law. When police lawlessness is revealed, such as the "police riot" in Chicago or unnecessary brutality at a university, everyone is shocked as if this were an aberration in our society. But the police have always been brutal and lawless to the powerless; we know this from how blacks were and are treated by the police in the South, and from the way young people, the poor, blacks, and outcasts are treated in the North. the cry of police lawlessness misses the point. In any large city the bureaucracies are also lawless; the building inspectors make threats and collect bribes, the liquor licensing authority is both arbitrary and corrupt, the zoning system is tyrannical but subject to influence. An individual in a small town criticizes the mayor and the zoning board rezones his house, the assessor raises the taxes, the police arrest him for minor violations, and the sanitation department declares his sewage system unsafe. Impossible? No, it has happened to unpopular and powerless people. An aberration? Not at all. It is not the misuse of power that is evil; the very existence of power is an evil. Totalitarianism is simply enough power, of whatever sort, to exercise full control over those within the system.

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The point is this: there can be no rule of law in an administrative state. The ideal of the rule of law can be realized only in a political-conflict state which places limits upon official power and permits diversity to exist. Once everything is subject to regulation, the rule of law is inevitably lost, for the rule of law cannot stand as an independent principle of society; it is always tied to the question of power. The real issue in any society is the degree of power. Is that power divided or massed? Is it controlled? In a managerial society, where the individual is subject to the vast regulatory power of the state, the rule of law becomes an empty, hollow concept.  One further thing needs to be said concerning the function of law in the Corporate State. In any society, there is some medium that intervenes between the individual values, choices, and needs of people and the social structure that results. In a primitive society, this mediator is the cultural-social tradition; it provides a society that is encrusted with many uses of the past, but that in a long-range sense reflects the beliefs and values of the people in it. Beginning with the market system and the industrial revolution, a new mediator appeared: money. Money did not, of course, provide as accurate a reflection of socially felt needs as the old culture did; you only got what you paid for, and so there commenced the terrible erosion of values. But money was not totally unresponsive to values either; perhaps it reflected 50 percent of them; it enhanced some while neglecting others, but it remained true that what an individual or society wanted, it could (if it could pay for it) succeed in getting.

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As we have described the American Corporate State, it is a society very different from both a primitive culture and from the early market system. It is a society which is entirely indifferent to human needs and values, which can be wholly irrational, which can indeed make destructive war on its own people. What medium could possibly furnish a way for human needs to emerge so utterly distorted and ignored, and yet keep the people believing that it was "their"  society? Law is such a medium. Far more than money, law is capable of intervening between man and his humanity. Why? Because law is a medium that is capable of being wholly external to the self. Primitive culture is a reflection of self, modified by time and tradition. Money is a medium which is compelled to reflect the self if the individual happens to have enough of it. But law can be given any form at all; it is capable of being made the servant of interests wholly indifferent to man. Thus it is perfectly suited to the Corporate State. And law has a second advantage: it is the very means by which standards are carried forward by any human community. When law is employed to serve the Corporate State, the people do not know what has been done to them, for law gets into the individual's mind and substitutes its external standards, whatever they may be, for the individual's own standards. We are taught that it is our moral and civic duty to substitute the law's standards for our own. It is a virtue to obey the law, a sin to ignore it in favor of one's own personal desires. That doctrine serves a community well as long as law is formed in a human image. But what if the law becomes the betrayer of the people? Its use then is diabolical. The people's best instincts are then used to disable them from fighting an enemy; They are told it is morally right to surrender. Thus the people are led to deny their own inner values in favor of law which has become, unknown to them, corrupt, unjust, and antihuman, the servant of an enemy of man---the Corporate State.

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Diabolically, law can teach that what is wrong is right, that what is false is true. It does this by supplying the sole normative standard in a society become so complex, so confused, so divided, where people know so little about each other, that they can have no other standard. And so we have today the fact of law that says to a young American, "thou shalt kill," and a people who believe that it is their moral duty to obey such a law. When a "not" was accidentally left out of one of the Commandments in an early Bible, it was called the Wicked Bible; today it is our law which has become wicked, and has robbed us of the ability to know what is just and what is human.
Behind the law stands that even more basic element of the Corporate State, "reason."  It is a state built upon "reason." But just as what is denominated as "law" has been distorted to fit the ends of the state, so reason itself has been distorted to become merely an expression of the state's values. The "reason" of the Corporate State leaves out so many values, ignores so many human needs, and pushes its own interests so singlemindedly that it amounts to this: the state has called its own insanity by the name of reason.
Ultimately, what the Corporate State does is to separate man from his sources of meaning and truth. To humans, the cosmos cannot be a source of truth. Nor can an entity such as the state. For human beings, the only truth must be found in their own humanity, in each other, in their relation to the living world. When the Corporate State forces its "public interest" truth as a substitute for man's internal truth---for the truth man creates---it cuts him off from the only reality he can live by. We say a man is mad when he believes he is Napoleon, or kills someone because an outside voice told him to do so. A society is mad when its actions are no longer guided by what will make men healthier and happier, when its power is no longer in the service of life. It is this fact that stands back of the fury and rebellion of youth. That anger is based on much else besides. But perhaps its deepest basis is the sense that the State has cut man off from his sources, cut him off from his values and from knowledge. The State is the enemy not merely because of oppression, injustice, and war, but because it has made itself the enemy of life itself.

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THE  LOST  SELF
What kind of life does man live under the domination of the Corporate State? The process by which man is deprived of his self begins with his institutionalized training in public school for a place in the machinery of the State. The object of the training is not merely to teach him how to perform some specific function, it is to make him become that function; to see and judge himself and others in terms of functions, and to abandon any aspect of self, thinking, questioning, feeling, loving; that has no utility for either production or consumption in the Corporate State. The training for the role of consumer is just as important as the training for a job, and at least equally significant for loss of self. Job training in school consists of learning goal-behavior and an accompanying discipline and repression of unrelated instincts and interests. Goal-behavior is simply the substitution of outside ends for inner objectives. In the classroom, the goals set for the child include memorizing and being able to repeat certain information and opinions, completing papers and tests according to prescribed standards, and conforming to certain rules of deportment. The more senseless the goals the better, for that child is best prepared who will pursue any goal that is set with equal effort.
Consumer training in school consists of preventing the formation of individual consciousness, taste, aesthetic standards, self-knowledge, and the ability to create one's own satisfactions. Solitude, separateness, undirected time, and silence, which are necessary for consciousness, are not permitted. Groups are encouraged to set values, inhibiting the growth of self-knowledge. Since activity and initiative are the key to finding one's own standards and satisfactions, the child is taught passivity, so that it must depend for satisfactions on what is provided by the society. Thus the child is taught to depend on the fun of cheering for the basketball team, rather than spending the same two hours searching for some individual interest.

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In school, the meritocracy shapethe whole structure of education. The object is not simply to train the child for a function in the State, but to begin the process of arranging everyone in a hierarchy of statuses, a process which will be completed many years later. Accordingly, school is full of devices for measuring and comparing children. Tests--academic, psychological, physical, and social--dominate the curriculum. The tracking system, in many public high schools, separates students into "ability groups" for their training. The end of the high school training process comes with the state's decision: who goes to a good collage, who goes to a bad collage, who goes to the white-collar occupations, who is destined for the factory or the filling station. Except for those born to wealth or hopeless poverty, this classification is the most important thing that happens to a person in our society; it determines almost everything else about the kind of life he will have. It determines a man's entire standing in the community; the amount of honor, gain, and respect he receives; indeed, his entire value as a human being. It also determines his relationships to others, friendships, how he lives, his interests except for an ever-narrowing private area which in many cases vanishes into nothingness by middle age. "Merit" also constitutes the way in which a man forms a knowledge of himself; it becomes the key to his identity, self-respect, and self-knowledge.
The opposite side of "merit" is doing one of society's undesirable jobs---that of the blue or white-collar worker. For these jobs, the most important requirement is not any affirmative form of training, although that is of course necessary, but a negative form of training---training in giving up those sides of human nature that are incompatible with the job. No person with a strongly developed aesthetic sense, a love of nature, a passion for music, a desire for reflection, or a strongly marked independence, could possibly be happy and contented in a factory or white-collar job. Hence these characteristics must be snuffed out in school. Taste must be lowered and vulgarized, internal reflection must be minimized, feeling for beauty cut off. All of these processes are begun in school, and then carried into later life in the case of those who are destined for the lower half of the nation's productive force.

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The authority exercised by the school is in the purest sense lawless, in that the school authorities have virtually unlimited discretion. They make and change the rules, they provide whatever procedure there is for deciding if the rules have been violated, they determine punishments (backed, if necessary, by the law). There is no rule of law by which the student can assert any rights whatever. As in any total institution, all of the many different powers of the school can be brought to bear on an individual, so that he can be flunked and also removed from an athletic team if both are needed to ensure compliance. And the school's power extends out into the indefinite future. For the school can make possible, or thwart, the prospects of a job or a college education. Given black marks in high school, a student may find himself crippled for life, unable to get into a good college, unable to pursue a desired career in consequence. It is as if a prison had the authority to permanently maim or cripple prisoners for disobeying the rules; the school's jurisdiction lasts only three or four years, but its sentences can last a lifetime.  While the school's authority is lawless, school is nevertheless an experience made compulsory by the full power of the law, including criminal penalties. (The option to go to private school does exist for families that can afford it, but this is not the student's own option, and it is obviously available only to a few.)  School has no prison bars, or locked doors like an insane asylum, but the student is no more free to leave it than a prisoner is free to leave the penitentiary.

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Thus the core of the high school experience is something more terrible than authority, indoctrination, or violence---it is an all-out assault upon the newly emerging adolescent self. The self needs, above all, privacy, liberty, and a degree of sovereignty to develop. It needs to try things, to search, to explore, to test, to err. It needs solitude--solitude to bring sense to its experiences and thereby to create a future. It needs, not enforced relationships with others, rigidly categorized into groups, teams, and organizations, but an opportunity to try different forms of relationships---to try them, to withdraw, to re-create. The school is a brutal machine for destruction of the self, controlling it, heckling it, hassling it into a thousand busy tasks, a thousand noisy groups, never giving it a moment to establish a knowledge within. After a person has been classified by the meritocracy he is fitted into the personal prison that each individual carries with him in the form of a role. Roles are nothing new to the world---peasant, knight, and bishop had roles in the Middle Ages; medicine men and warriors have roles in a primitive tribe. But roles have changed somewhat; they are ever more highly specialized, and they grow constantly more pervasive, cutting deeper into every side of the individual. The basis process which is going on during all the years of schooling is learning to become the kind of person society wants, instead of the kind of person one is, or would like to be. At the elementary level, this is seen in the student's attempting to become "academic" when his real interests are mechanical, sensual, or just plain undeveloped. At a higher and more tragic level, one can observe the violent alienation of law students from their prior selves. Finding themselves in law school for many possible reasons, they discover that they are expected to become "argumentative" personalities who listen to what someone else is saying only for the purpose of disagreeing, "analytic" rather than receptive people, who dominate information rather than respond to it; and intensely competitive and self-assertive as well. Since many of them are not this sort of personality before they start law school, they react initially with anger and despair, and later with resignation as their self-alienation becomes complete. In a very real sense, they "become stupider" during law school, as the range of their imagination is limited, their ability to respond with sensitivity and to receive impressions is reduced, and the scope of their reading and thinking is progressively narrowed.

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Training toward alienation, from elementary school onward, reaches its climax when the student is forced to make his choice, first of a collage major, then of a career. Surrounding these moments is a gradually built-up picture of man as creature who has one single 'right" vocation in life, the vocation for which he is "best-fitted," and for which he can be aptitude tested and trained. The choice is surrounded by great anxiety and doubt, particularly because the student may find that his own nature fails to conform to the expected norm. He may find that he is seriously interested in music, surfing, and astronomy, that no career can encompass these interests, and that consequently he is faced with having to give up a part of himself. Often he has an "identity crisis" at this point, and it would only seem fair to say that the crisis is really not of his making at all, but one forced upon him by society's demand that he give up a portion of the identity which he has already formed. This sort of "choice" can only be a sad and desperate moment. For a young person is not only asked to give up a large portion of the "identity" he already has in favor of something unknown and perhaps far less satisfying; he must also give up all the yet undiscovered possibilities within him, and thus commit a part of himself to death before it can be born and tried out. When a collage student decides on medicine, he puts out of his mind the chance that he might learn about literature and discover a special affinity there; he will never give that potential in him a chance, but for a long time he will wonder about it.

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In discussing Consciousness II, we dealt with role-playing in the context of false consciousness. But role-playing can also be viewed as a set of limitations on each individual. The role-prison drastically restricts such fundamental aspects of personality as relationships with others, personal expression, modes of thought, and goals and aspirations. Indeed, it does so with such total effectiveness that we are usually not at all aware of the prison we are in. the deepest form of role-constraint is the fact that the individual's own "true" self, if still alive, must watch helplessly while the role-self lives, enjoys, and relates to others. A young lawyer, out on a date, gets praised for his sophistication, competence, the important cases he is working on, the important people he knows, his quick and analytical professional mind. His role-self accepts the praise, but his true self withers from lack of recognition, from lack of notice, from lack of appreciation and companionship, and as the young lawyer accepts the praise he feels hollow and lonely. If the professional is imprisoned by his role, the policeman, nurse, salesman, secretary, and factory worker are even more enclosed by the relationships, thoughts, and goals prescribed by their occupations. On the job, most of what happens is sterile, impersonal, empty of experience. An airline ticket salesman, a stewardess, a pilot, a baggage handler, a telephone reservations girl, a plane mechanic, an air controller, are all expected to be mechanical people, thinking their own thoughts and expressing their own feelings as little as possible, putting in an entire working day that is dictated by the functional requirements of their jobs.