"Morality" and Law

I'm always torn on the issue of a legislative morality. Do you remember when the Hate Crimes bills surfaced after the murder of Matthew Shephard trying to include in that definition, sexual orientation? I had a nice talk with a professor of mine who is a former lawyer and I remember he said something like the problem is, how do you legislate what is in someone's head or heart? How do you prosecute hate? How is murder any less a murder if the person died because they were in the wrong place/ wrong time or because their death was motivated by their sexual preference? How is changing the law to prosecute their murder as a "hate crime" going to change the fact that despite the motivation, the person is still dead?

I realize laws fall quite short of actual protection but I DO think the wording is quite important.
I think that by adding "sexual orientation" "sexuality" "sexual preference" you are legally validating a group who are still quite marginalized in this "democratic" society, thus still very much subject to discrimination and violence. Still, what to do about the laws...
This whole "oil-for-food" fiasco with the UN makes it seem even MORE inept (if that's even possible) and I just wonder where, when and how the idea of legal protection can trump class privilege, racist practice, power politics and hate? On the one hand, you have carefully worded laws that can actually provide precedence or offer an open door to improving or challenging or overhauling policy but how do you change the practice? Does changing the penalty of a law actually help or hurt the people the law is meant to protect? What about that ever important issue of enforcement? As evidenced by the US/UN relationship which borders on the incestuous in my opinion, the degree to which "law" will be follow really depends upon the capability of either an inner (as in, within the State itself) or outer (as in, with an international court) prosecutorial body that is free enough from the persuasion of that which it is to judge to do so according to the law. Then again, who defines that law? History has shown again and again the constant mutability of international law. There's that saying "Might makes Right" and I think that in this case (or at least in this argument) that is true. Unfortunate, but true. So I think perhaps that the true 'might' to make right has to lie in the hands of the people of a nation and not in the blind trust of their "leadership" or in the romantic notion of a foreign protectorate ready and able to enforce a body of law that is so wonderfully eloquent but so incredibly difficult to enforce.

I watched this film this weekend that I love titled "When night is falling" and in it one of the characters says to the other (who happens to be a lesbian) "Surely people like you have friends right?" I think the best intentions are just as cutting as that stupid phrase. However cautiously said or well-meant, those words isolate and treat the person they are addressing as a subject, an abnormality, a deviant, different, flawed. Some have argued that offering legal protection to those whose sexuality differs from the heterosexist norm is giving those not fitting within that norm, "special rights." The word "Special" suggests something above and beyond what already exists and the sad fact is that the U.S. hasn't even reached the point of "equal" rights so the notion of special rights is absolutely ludicrous. Under GW our nation has regressed in its fancy side step of international law and has kicked whatever legal "teeth" in that the Convention Against Torture may have had. This blog began by asking the question about what an America might look like that actually promoting a commitment to human rights rather than military might. We'll see how this will change for the better or worse in the next six months with Bush, Rice, Rummy and potentially Gonzales at the helm. It is painfully ironic that those who voted for this group are dubbed "the moral majority." This is only further proof that morality is really as abstract a label as any other word we might attach to ourselves or our thinking. You can wear it all you want but that doesn't necessarily make it true.

Finally, I really do think that legal scholars and scholars in general need to demand/shape/create a new language to counter and unpack the rhetoric used to justify/excuse human rights violations. The word "occupied" seems inadequate and innoculous. The word "detainee" seems like someone's just being held for a short while really, never mind what they're actually going through. The words "justice" "democracy" "oppression" "coercion" "freedom" "liberty" "power" and even that lovely word "morality" have all proven quite effective in the war here for hearts and minds. I think those who cringe at the use and abuse of those words really need to either reclaim them or create new ones that are yet to be co-opted. The media may be the mouthpiece of this administration but the indy media and alternative spaces have the power and opportunity to create a much needed (change in) dialogue. Refuse to be silenced. peace!