on trusting in the law

Symposium on Public Space: Part II

Note to our readers: in the coming weeks, we’re excited to share some guest essays in this Symposium on public space. You can read the first essay by Dhananjay on busking here. -T. & Dh.

A few weeks ago, I watched a movie I wish I’d liked more. The Devil and Daniel Webster, a 1941 mashup of Faust and Twelve Angry Men, starring Walter Huston and Edward Arnold as the titular characters, seemed like Criterion catnip: ‘Mr. Scratch’ tricks a ne’er-do-well New England farmer, Jabez Stone, into selling his soul for seven years of good luck; said Stone appeals to noted political orator to defend him—at the risk of his own soul—in a third-act supernatural courtroom trial.

It’s a near-perfect set-up. But the follow-through fails. The Devil and Daniel Webster initially suggests Webster will use his command of American (if not theological) law to trick the devil, and will be tricked by him in turn. He makes the case that poor, useless Jabez Stone is owed a fair American trial to begin with because no American citizen can promise service to a foreign prince; Mr. Scratch responds with a chilling soliloquy about his constant presence in American life and injustice from the country’s obsession—so far, so interesting.

But, in the end, Webster appeals not to American law, nor to divine justice, or even to theological speculation, but to empty rhetoric. The jury—condemned Americans like Benedict Arnold—wish they’d had another chance to breathe “clean American air … for it was free and blew across an earth you loved.” Webster uses his rhetorical and oratorical might to appeal to the jury’s sense of patriotism—and Jabez Stone gets his soul back (the other characters who make a deal with Mr. Scratch aren’t so lucky). He appeals to the jury’s sense of identity as Americans, of their love of “freedom”—damnation being its eternal opposite—and their need to stand up to the devil, the “oppressor.” His actual legal argument is contradictory—Jabez both owns his own soul, as Americans who affirm freedom must do, and so the devil doesn’t, and also doesn’t own his soul, because it also belongs to his “son, his family, and his country”, and thus he can’t sell it to the devil. (This latter argument seems the most convincing; I was hoping for an ending where Mary, Jabez’s long-suffering and virtuous wife, sues the Devil on the grounds that she, too, has rights to her husband’s soul on sacramental grounds—an ending that also better resolves the film’s emotional arcs).

Glass Fragment of a Devil (French, 1200–1215), public domain image courtesy of The Metropolitan Museum of Art

I don’t, obviously, want Jabez, or anyone, to go to the devil. Playing the devil’s advocate rarely ends well. But, hopeful as I am for universal salvation, I found The Devil and Daniel Webster unsatisfying precisely because it presents itself as a movie not just or even mostly about theology —Webster never refers to Jesus, and barely ever to God—but about America, American identity, and American freedom, yet it somehow also dispenses with the idea that part of American freedom and American identity involves believing that American rule of law—even the bizarre stagey version of law we’re getting here—actually matters. Webster doesn’t appeal to a higher power—divine mercy, say—to get the jury to suspend Jabez’s sentence. Nor does he—as might make the most thematic sense —beat the devil at his own game: using the tools of American legal freedom (and, implicitly, the best of human ingenuity) to get his client off on a technicality. He just uses his ability to induce an emotional reaction to get a bunch of dead men to declare that part of American identity means that the law doesn’t matter in the first place. It’s a courtroom drama with a mass media resolution.

This is likely a motif I’m too cranky about, lately, both in the face of broader national events (about which more suitable people than I can write) and of local ones here in New York (likewise), and, also, because I live in a city where everyday experience of public space means accepting that the rule of law doesn’t really matter. One particular example caught my eye over the past week: this Hell Gate story, reporting that, in the five years since legislation was passed doubling fines for repeat-offenders using fraudulent parking placards, “not a single driver has been hit with even a $250 penalty for using a fraudulent placard, let alone a $500 fine.”

As a regular urban biker and walker, one of the most striking parts of the half-decade since the pandemic is how I have learned to assume that drivers, in New York, are, and function, above the law: that whatever the “rules” of public space (separated bike lanes, say), rules designed to promote an agenda no more controversial than making public space safe and pleasant for the greatest number of people, in practice, they are rarely if ever enforced. Drivers largely operate with impunity and react with surprise or anger if challenged. (I recently got into an altercation with a middle-aged man who had not only parked his enormous Jeep across the entirety of a Third Avenue crosswalk—forcing elderly pedestrians into the intersection—but in fact left the car there to get a juice at the next door Juice Generation, and returned, with juice in tow, to insist that he had only broken the law for “thirty seconds.”)

To talk about the rule of law, in New York, is inextricably bound up with conversations about law enforcement, about the NYPD, specifically, about policing and subway crime and the migrant crisis and Eric Adams and bail reform: all buzzwords bound up, in their turn, with particular political stances and affiliations.

To be pro rule of law, when it comes to life in New York, is all too often taken to mean that one is in favor of untrammeled police privileges, or mass deportations, or any number of right-coded positions I do not share. In fact, to care about societal order is to give oneself away as a ‘Karen’; conversely, it is almost inevitably the case that those who are willing to apply the language of “law and order” to, say, the New York subway are often unwilling to do so when it comes to the enforcement of left-coded laws: meaning, anything that promotes walkable urban space safe for pedestrians or micromobility users. (The number of times I have seen NYPD cars either parked themselves in bike lanes, or openly ignoring those cars that do, is roughly equivalent to the number of times I’ve gone biking in New York.)

The Road Rights of Wheelmen (E. Nadall, 1895), public domain image courtesy of The Metropolitan Museum of Art

But one of the things that I’ve found most depressing about the past few weeks in New York, and indeed the post-pandemic urban landscape, is the utter indifference to the law as a source, whether theoretical or actual, of authority. Call it legal nihilism. Nobody expects laws to be enforced; nobody even seems to hope laws will be enforced (insofar as there is little public trust that law enforcement will do its job, and perceptions of police power are largely divorced from the idea of law); the idea that one might want a law to be enforced makes one either an authoritarian or a naïve rube. One might have a reasonable expectation that one’s private property—one’s home—be protected under the law; but shared spaces are, in essence, ungoverned. And so public space—whether in bike lanes or on subway platforms—becomes a site not merely of disorder, but of dissociation: where a broader sense of political disengagement (nothing matters, nobody is going to do anything) is made visibly manifest.

Both conservatives and progressives, in my experience, have been myopically partisan on this issue: with progressives all too willing to dismiss anyone concerned about transit safety as a Fox News-reading troll from New Jersey, and conservatives unwilling to hold those creating disorder on our roadways to the same standards to which they’re willing to hold those creating disorder on subway cars.

But this should not be a partisan issue. The fact that it is not a partisan issue should be no doubt intensified by the fact that some of our most high-profile “law and order” politicians are now poster children for the law’s utter irrelevancy.

There is no reason not to play loud music without headphones on public transport, no reason not to park in a crosswalk or a bike lane, no reason not to light up on the crosstown bus, no reason not to shoplift at a CVS (it will likely be faster than waiting for someone to unlock a cabinet for you). Nothing has any consequences at all. And living life in a society where nothing has any consequences at all, where action and reaction bear no relationship with one another, means living life in a society that has given up on being a society, period. But no story, no space, no shared pride in clean air or green grass or just, heck, a park bench, can exist without an institutional framework sustained both by public trust and actual operations worthy of that trust.

Or, to put it another way, when we sacrifice the idea of the law as something that matters, and that is worth upholding for its own sake, we sacrifice, too, the shared compact that it represents: that, in a democracy, at least, we have conceded to certain restrictions upon our personal freedom or ease of enjoyment because we have agreed to participate in, to be part of, a community that depends on us all curtailing ourselves, a little bit, and, if we don’t, facing consequences that are—or should be—clear, defined, and proportionate (like, say, a fine for fake plates).

In Plato’s Republic, which I’m teaching this semester, one of Socrates’s objections to the inclusion of poets in the republic is the danger that they shall “tell us that wicked men are often happy, and the good miserable; and that injustice is profitable when undetected, but that justice is a man’s own loss and another’s gain—these things we shall forbid them to utter, and command them to sing and say the opposite.” I depart from Plato when it comes to the good of poets’ utterances, but on this I think he has a broader case: a political project depends on a shared communal faith in, and commitment to creating to the extent possible—a just world: a system designed to encourage behavior that promotes the common good and to penalize behavior that detracts from it. If we dismiss the possibility of law as an ideal, if we dismiss the possibility that shared political projects can ever get us a juster society than, say, fighting our neighbors with sticks, then there is no reason to treat public space, or public life as anything but tracts of power to be colonized, by force or by meme, by those with the power to do so.

I’m not calling, to be clear, for increased policing, or mass incarceration of asshole drivers—and I’m sufficiently cynical right now, about all our political institutions to be nearly as distrustful of enforcement as its absence. But what I am calling for, I suppose, is a recognition that law matters, whether as a social compact or an affirmation of some wider truth, and that one of the reasons that it matters is because once you lose sight of the the idea of anything mattering, you lose the will to be the only poor idiot who still drives around looking for parking when there’s a perfectly good bike lane right there. And I think, too, that the past few decades’ cultural consensus—that it is either cringe, or reactionary, to think that the law matters, even for its own sake—has helped create the political conditions under which nobody has the strength or the will to push back against far direr breaches of public good than double parking.

So, I’m glad Jabez Stone got his soul back. I’ll take a cringe ending over someone’s damnation any day. But I wish The Devil and Daniel Webster, in its celebration of American distinctiveness, had done something, or said something, more interesting about the relationship between American law and American freedom, and how maybe sometimes a faith in human freedom and human justice can make a start defeating the devil, even if you need grace to get you all the way there. If the only thing American justice has over the wiles of the devil is that Daniel Webster is a better populist orator than Mr. Scratch, then we don’t have anything at all.