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180 of 217 people found the following review helpful
3.0 out of 5 stars Some useful observations in the service of a fantastic argument., October 29, 2011
This review is from: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful (Hardcover)
When I say fantastic, I mean of or relating to fantasy. And that fantasy is the idea that the "law" or the "state" ever equally represented people, that it was ever not a tool ultimately under the control of the economically powerful, that it ever functioned to provide liberty and justice for ALL.

As he does on his blog, Glenn fills his book with example after example of the legal double standards in the United States. It is in pointing out these double standards that he's at his most impassioned and readable. But just as his strengths carry over from his blog to the book, so do his weaknesses. The biggest one is that Glenn never really gets beyond the listing of grievances to offer a compelling explanation of why injustice has grown in recent decades (although, to Glenn's credit, he notes it has coincided with a massively growing economic gap). In other words, Glenn describes well, but explains poorly.

His attempt to provide an over arching framework is to cite the pardon of Nixon as a watershed moment, as if the pardon was a consciousness raising moment for political elites who were then emboldened to break the law with impunity. The problem with this historical narrative isn't that Nixon's pardon wasn't exceptional. It was indeed exceptional, but for a completely different reason. It symbolized a brief moment in U.S. history where grassroots pressure resulted in the exposure of crimes at the highest level of government. It was the exposure of the crimes, crimes which LBJ, JFK, and so many other previous presidents (of both parties) engaged in, that was remarkable. Not the fact that political leaders were getting away with the crimes, not the fact that political leaders began to expect to get away with their misdeeds.

Glenn fails to offer any decent explanatory foundation for the problem he identifies because he doesn't grasp enough of the history of power and how it has operated in the United States. An unfortunate consequence of this is the implication that we need to get back to some kind of legal garden of eden that Glenn seems to think we have fallen away from after Gerald Ford bit the forbidden fruit. It appears Greenwald hasn't read Howard Zinn, or has any familiarity with the fact that the powerful have always believed that their political and legal domination are the equivalent of justice for all, even when that "justice" has excluded women, Native Americans, African Americans, etc. Today is no different. There is injustice and inequality that benefit the people who think society and its application of laws are just and equal. The only notable change has been in how the elites reconcile their domination with the myth of equality.

The problem with Glenn's failure to construct an adequate explanatory frame is that it leaves him confused about where to go politically. Because Glenn keeps looking back to a paradisical time when capitalism supposedly rewarded the hard-working and punished the slothful, because he mistakes a presidential pardon with the underlying roots of inequality and injustice, he is left in a situation where he senses that roots of injustice run deep but where he is still implicitly wedded to the notion of "reclaiming" the democratic party. As if the party was ever not dominated by the powerful, who have only occasionally had to make concessions in periods of intense popular upheaval.

After hundreds of pages, the reader is left convinced that the law is indeed largely formulated by and at the behest of the powerful. But this observation is hardly new. Crack open any text by Marx or Bakunin, and you'll get a much more compelling expose, one that links up with an explanatory map capable of guiding activists who want to change the world for the better.
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Tracked by 5 customers

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Showing 1-10 of 29 posts in this discussion
Initial post: Oct 30, 2011 11:54:04 AM PDT
R. Gerwin says:
I am overall a fan of Greenwald, but I thought this was an objective and thoughtful critique. Your criticism of Greenwald is applicable to many "activists" and makes for a worthy counterpoint.

Posted on Oct 30, 2011 12:48:27 PM PDT
I agree with your critical analysis of Glenn Greenwald's spirited journalism. Glenn is not often factually wrong about what he discusses; rather, his "constitutionalism" and lack of theory ends with an analysis which is insufficiently historical. It tends to leave his reader with the impression or belief that the "rule of law" is a sufficient condition for a rational society. Yet, is there any surprise at all in the fact that the Constitution of 1787 secures the prerogatives of property? I think not. Nor, for that matter, with the coexistence of the Constitution with Emergency Government, and with the latter corrupting the use of the former during the putative state of emergency. Again, I think not.

The Constitution was far from perfectly democratic or republican when it was approved by the states. The Bill of Rights did not perfect the Constitution. And it remains imperfect still. Glenn's journalism can, at times, obscure these imperfections.

In reply to an earlier post on Oct 30, 2011 10:42:51 PM PDT
D. Harris says:
Very informative comment; thanks. The notion of "private property" may be oudated, when we will have to cooperate on this planet during the coming climate upheavals.

In reply to an earlier post on Oct 31, 2011 7:30:53 AM PDT
Few events would create a "commons" better than a global catastrophe!

Posted on Oct 31, 2011 1:22:06 PM PDT
Mark bennett says:
"As he does on his blog, Glenn fills his book with example after example of the legal double standards in the United States. It is in pointing out these double standards that he's at his most impassioned and readable."

The book is actually really thin on that score. I think there were about four examples total of cases of criminal law gone wrong for the poor. He doesn't really even start dealing with those issues until 2/3rds of the way into the book. The wall street material is also very thin in terms of specific names and parties who got off. And some of the best material (JP Morgan bribrary case) he neglects to covering in less than a page. He spends far more time talking about for-profit prisons and generic topics like the war on drugs than he does about specific double-standards in the law.

Posted on Nov 1, 2011 5:25:56 PM PDT
S. O'Reilly says:
I would disagree with this review. After listening to several interviews of Glenn, his point in identifying the Ford pardon as a watershed is that that was the moment when the elite EXPLICITLY started to argue publicly that sometimes the rule of law has to take a back seat to the "law of reality" as Ford so eloquently put it. This "law of reality" continues to be cited to justify criminality whether it be Iran-Contra or W.'s war crimes. People in the past may have failed to live up to "justice for all" but no one would have argued it was a secondary concern. Today elites seem to believe and argue unabashedly "justice for all" is an inconvenience with which they shouldn't be bothered. If we just defer to their greatness it will all be the best for everyone concerned.

This is an important development and one worthy of our attention.

Posted on Nov 2, 2011 5:37:23 AM PDT
Kellie says:
I'm a fan of Greenwald and find his voice very necessary, but I think this is an excellent review.

In reply to an earlier post on Nov 2, 2011 1:34:42 PM PDT
Mark bennett says:
"his point in identifying the Ford pardon as a watershed is that that was the moment when the elite EXPLICITLY started to argue publicly that sometimes the rule of law has to take a back seat to the "law of reality" as Ford so eloquently put it."

His problem is that it doesn't work because the rule of law took a back seat before the pardon. Nobody from the Johnson Administration was imprisoned for matters related to Vietnam or what they did in terms of attacking domestic dissent.

He could have made a more limited case that there was a trend toward accountability after 1968 and that the trend stopped with the Nixon pardon. But in trying to make a broad case that the Nixon pardon was a general turning point in American Justice, he reaches too far and he can't get around the shadow of Vietnam.

The law of reality existed before Nixon. But it was applied such that administrations were implicitly above the law and even the idea of an investigation was impossible.

In reply to an earlier post on Nov 2, 2011 2:16:44 PM PDT
S. O'Reilly says:
But did anyone in the Kennedy and Johnson administrations publicly demand that it was best the law was not applied to them? It may have happened but I am not aware of it. You may argue this is a fine distinction but to me it is quite significant that the elite isn't even pretending anymore. Having a President articulate a "law of reality" theory seems like an important development.

In reply to an earlier post on Nov 3, 2011 3:16:11 AM PDT
Mark bennett says:
"But did anyone in the Kennedy and Johnson administrations publicly demand that it was best the law was not applied to them?"

They didn't have to publically demand it because the law simply wasn't applied to them. The idea for example of putting those responsible for the Gulf of Tonkin farce (and ultimately the war) was unthinkable. And the idea of applying the law to Johnson-era wiretaps or putting those involved in the wiretaps on trial was equally unthinkable.

I don't know how to draw a disinction between a situation where the law is not applied to an administration and a situation where there is a public demand for the law not to be applied to that administration. In both cases, those involved are above the law. In both cases, an elite is operating outside the system of justice.

By the same reasoning that the book applies to Bush's war in Iraq, JFK's bay of pigs attack on Cuba, Johnson's occupation of the Dominican Republic and various other actions are all war crimes.

If the lack of a war crimes trial for Bush on Iraq shows a fault in American justice, how is it possible to say that the lack of a war crimes trial for Johnson on Vietnam or Kennedy on Cuba does not show the same fault in American justice?

"Having a President articulate a "law of reality" theory seems like an important development."

But that "law of reality" is being articulated in this example through the unlimited power of the presidential pardon. The expressly unlimited power of pardon has been in the constitution since the foundation of the country. And that power has always allowed presidents to override the course of the law being enforced.

Basing his argument on a pardon is very difficult argument to make. He could make a better argument in other areas such as the long-term trend toward selective enforcement, selective prosecutions of certain crimes within the federal government and more recently the trend to try to nullify laws by the executive branch refusing to defend those laws in court cases. The innovation of presidential "signing statements" which state which parts of law a president chooses to enforce are also a major point.

I think that the articulation of a "law of reality" is worthy of mention as an important development. But the book hangs too much of its argument on the event.
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