first published in Illegal (San Francisco: Luggage Store Gallery, 2018)
NOTHING IS ILLEGAL FOREVER
In The Wealth of Nations, Adam Smith wrote: “Civil government, so far as it is instituted for the security of property, is, in reality, instituted for the defense of the rich against the poor, or of those who have property against those who have none at all.”
The term “illegal,” whether describing an act, a thing, or a person, reflects a subjective determination by governing structures, that is to say, laws. And laws are, and have always been, rules promulgated by the powerful and wealthy to protect their power and wealth. They uphold existing social norms and maintain the hierarchy between economic classes.
Yet because economic relationships shift over time, what is considered illegal is a relative and arbitrary construct. It means society has decreed certain conduct as violative of its norms, today. Society can, and will, alter these decrees to suit the purposes of those in charge.
Examples abound. From its founding, our country’s laws have consistently served the purpose of perpetuating the position of a few over the many. The seizure of land from Native Americans and the ownership of people brought here as slaves were all legal according to the laws of the day. Descendants of people forcibly removed from territory that now falls within the United States are even called “illegal” under today’s statutes.
Attacks on so-called “illegal art” habitually distract from real abuses that harm us. Robert Reich has noted this in the context of social values, “The moral crisis of our age has nothing to do with gay marriage or abortion; it’s insider trading, obscene CEO pay, wage theft from ordinary workers, Wall Street’s continued gambling addiction, corporate payoffs to friendly politicians, and the billionaire takeover of our democracy.”
Occasionally, the favored class elects to sacrifice something to create the perception that it cares about justice and that their status and privilege is conferred upon them by just, merit-based, and evenly-applied rules. More often than not what is sacrificed is a small price to pay for the perpetuation of their advantage. These concessions are designed to conceal Honoré de Balzac’s observation, that “behind every great fortune there is a great crime.”
Liberal political philosophy relies on the construct of the Rule of Law to obtain the consent of the majority to the status quo. By believing the judicial system is blind when administering justice, supposedly rendering it fair to all, we are to believe that rich and poor are equally served.
Ideas such as due process and equal protection of the laws are cornerstones of the system’s ability to gain acquiescence to its rules. To be sure, due process and equal protection are beautiful concepts in the abstract, yet these ideals can be part of the perpetuation of social oppression when administered by judges from the same elite class that promulgate laws to begin with.
Quotation by Filipino American journalist and filmmaker Jose Antonio Vargas.
The establishment’s selective fidelity to these principles demonstrates that they are devices used to rationalize their preserved status. Considered within this context, “illegal” will only accurately be assessed through a lens of history. Ursula Le Guin once said “We live in capitalism. Its power seems inescapable. So did the divine right of kings. Any human power can be resisted and changed by human beings. Resistance and change often begin in art, and very often in our art, the art of words.”
Art that challenges economic relationships constitutes both direct resistance and an attack on the isolation that the system imposes. Once dissatisfaction is shared, the state’s vulnerability is harder to conceal.
When police authorities complain about graffiti defacing the urban landscape, what right does the artist have to counter that corporations deface the city with commercial billboards? Margaret Kilgallen once observed “The public looks at graffiti and sees garbage and sees ugliness. And I always wonder why they don’t look at the billboards, especially around San Francisco, there’s millions everywhere. Isn’t that garbage? It’s like mind garbage.”
Even in the last quarter century, there’s been a shifting of legal rules defining what is legal or proscribing lesser punishments. Notably, the same judges who smugly presided over prison sentences for minor drug offenses, now warmly refer to the failed war on drugs, as if they had been participants in its demise.
A jury of one’s peers presents an opportunity for resistance. On one hand, the concept exemplifies the patina of fairness the system uses to gain public acceptance. Nevertheless, jury trials remain a singular forum where individuals can appeal to others also subject to regulated behavior, and thus, similarly situated. That’s because the jury is the fact finder, meaning they decide what evidence to believe, and they alone decide if there is sufficient proof to convict an accused. This is one place state power is often without recourse to dictate results. I say often, because judges can steer outcomes with legal rulings favorable to one side. But despite this, nothing is illegal if a jury says it isn’t.
Must society depend on laws for its social order? Is peacefulness reliant on the coercive arm of the state? Can society be based on reciprocal norms not linked to the hierarchy of class?
We can glimpse the future. Art considered illegal, won’t always be. Nothing is illegal forever.