The Rule of Law and its Built-in Marginalizing Features
Photos by Aiyana Leong-Knauer in New York City, since the ruling on Roe v. Wade was announced.
In the wake of the overturn of Roe v. Wade, frustration and disappointment with the Rule of Law is widespread. This isn’t the case just in the U.S., and it’s astonishing that people around the globe still had any hope and trust left to lose in this political philosophy. The Rule of Law is so inherent in our lives, we sometimes forget it’s a political philosophy that is imposed by force, and requires incredible amounts of social and material resources to uphold. Some built-in features of this philosophy which guarantee its scope of social influence are: the law mustn’t be too understandable or too precise. There is a deliberate effort put into making laws and legal texts open for interpretation, and into making interpretation out of reach for the public. Therefore, even if a law protecting a certain right exists, it is not often that we know what it says or how to use legal text to our advantage. This distinction can be seen, inter alia, between a law which protects abortion v. the ability to access abortion (i.e. to exercise the right) — both of which were already weak and became severely weaker.
This paradigm is a global affliction, and affects all marginalized peoples. The YS and others case shows how the Rule of Law in Europe, though filled with texts which are presented as exemplary in how civilizations should operate, is an uphill battle for non-Europeans, and exemplifies how even when a law technically exists, the right it proposes to guarantee isn’t always accessible.
The EU Court of Justice case YS and others
In 2014, a decision was made in the EU Court of Justice (ECJ in the CJEU) about the rights of asylum seekers to access the personal data in their asylum requests. Access to personal data is a European right, but there are several instances where this access may be restricted or interpretations which lead to it being denied. In the case of these asylum seekers, who are referred to as YS, M and S, their right to access documents, containing the legal analysis behind the decision on their application, was denied in several judicial levels before arriving at the European Union court. At this highest court, the interpretative question was: Does the legal analysis in the file of an applicant constitute as personal data?
A large portion of the population of the European Union doesn’t know they have the right of access to personal data. Of the portion that does, not many know which circumstances constitute as exceptions; and of those, there is still the question of how to make an access request, and how to know if the response, lack of response, or manner of response to an access request is lawful. Once a person goes through all these steps and receives access to their personal data, how to know if the data is complete?
From the files of YS, M and S, there is no question that the “applicant’s name, date of birth, nationality, gender, ethnicity, religion and language” (CURIA, paragraph 38) are defined as personal data and should be granted access to. However, certain countries in the EU disagreed about whether the documents with the legal analyses of the asylum request of the applicant should also be considered personal data. The Netherlands and France, for instance, did not consider the analysis to fit the description of personal data because it’s not related to the residence permit applicant, instead, it’s related to “a purely abstract interpretation of the law” (CURIA, paragraph 40). But there might be another, obfuscated, reason for it.
An interpretation of the law is not purely abstract when it applies to the specific case of a person. And since this interpretation is information which relates to a person, it’s personal data. Beyond that, it could be said that it’s in the interest of the Dutch and French governments to have asylum seekers oblivious to the inner workings of its institutions and their decision-making processes.
In Brazil, for example, it’s illegal to sell weed but not illegal to carry for personal use. There is no specific legal amount one may carry, which draws the line between personal use and drug trafficking. The reason for that is to make it harder for drug traffickers to use the law to get away with their crime, by carrying a maximum amount of weed at the time. If someone is caught with weed, it’s up to the cop to decide if the amount constitutes personal use or not. So, the recurring, well-known scenario which ends up playing out is — if a poor black teen or a rich white teen are caught with the same amount of weed, the black kid is seen as too poor to have that much weed, so it must be for sale; while the white kid is wealthy enough to not have to sell weed for a living, so it must be for personal use. That’s a legal interpretation, applied to each individual case relating to a person. One goes to jail while the other is let go, perhaps by paying out a meager bribe.
It’s not far-fetched to imagine that the Dutch immigration office (IND) doesn’t want to reveal the reasoning behind their legal decisions, because they don’t want asylum seekers to have information which might help them present their case more effectively. However, that was not stated in the official publication of the decision. Instead, the argument was that, in the M case, access to the document might infringe upon the “freedom of the case worker responsible” for analyzing the application (paragraph 25). This is, indeed, an exception to the right of access to personal data — when access by an applicant infringes upon the rights and freedoms of someone else, more so than the lack of access infringes upon the rights and freedoms of the applicant. In M’s case, I’d argue denying access infringes upon the rights of the applicant more than the granting of the right infringes upon the case worker’s freedom. That’s clearly up to “interpretation”, but it’s not a purely abstract view of the law because it applies to M’s case in particular.
The parallel between the rights of abortion in the U.S., of access to personal data in the E.U., and to have weed for personal use in Brazil highlights the global and intersectional nature of the Rule of Law. This political philosophy has problematic built-in features, which are deliberate, though often obfuscated. When it was in place, the right to an abortion improved bodily autonomy in the U.S. to a bare minimum, and it was already not enough to ensure people’s lives were free and healthy. The asylum and data privacy policies in Europe were not and are still not enough to ensure equal access to the rights they claim to offer. And drug possession charges in Brazil are plagued by racist and classist “legal interpretations”.
In the eyes of the law, it is the marginalized members of society — women, LGBTQIA+, immigrants, black people — who are guilty until proven innocent. Because, if the society we live in is tainted with racism, sexism and classism, there is no way this stain won’t be reflected in the Rule of Law and its convoluted language designed to give room to the interpretation of an elite. The Rule of Law is not designed to be democratically improved upon, it’s designed to work according to the whims of those already in a position of power, and who have all the interest and resources to retain this power. The Law does not and will not protect those of us who fight every day for scraps of empowerment. Perhaps it’s when we stop hoping the government and its laws will rescue us from the misery they put us in, that we will begin to invest our hope and our trust into an autonomous initiative which makes the Law not only less of a threat, but also obsolete.
MIRNA WABI-SABI
is a writer, editor and translator. She is founder and editor-in-chief of the Plataforma9 initiative, author of the bilingual pocket book Anarcho-Transcreation, and site editor of Gods and Radicals.