The write-up below by Nathan Larson highlights the arbitrary customs of courts to underscore a larger issue – the harm that occurs when individuals mindlessly follow rituals that serve only to pay homage to the State.
Cop Block typically focuses on the abuse perpetrated by those who wear badges and the subsequent lack of accountability. However, due to the militarization of policing, more peaceful actions being classified as “illegal”, and more individuals refusing to take plea deals based on their principles, seeing the inside of a courtroom isn’t implausible (see links below for some examples).
As Nathan outlines, the symbolism present in court is just one example of its prevalence (and conditioning) throughout society, which underscores the need to think for yourself and not grant another individual, whether they wear a piece of metal on their chest or a black robe, authority simply because its claimed.
There are certain courtroom rituals that, while not necessarily specified in any law or rule, are nonetheless traditions commonly used to the lay participants into a habit of obedience. Whole treatises have been written about how the juror’s oath is used to deceive jurors into thinking they can be held into contempt for conscientiously refusing to convict a defendant who violated the law. Then there are the practices of addressing the judge as “Your Honor,” and of rising when the judge enters the courtroom.
Why is everyone expected to stand when the judge enters? It is probably because standing is culturally identified as a gesture of respect and honor. In certain religions, e.g. Judaism, one stands to pray to the Deity. Americans are sometimes asked to stand for the national anthem or the pledge of allegiance. A standing ovation is viewed as a sign of higher acclaim than a sitting one. When I went to a British-style private school, there was a rule requiring the students to stand whenever a woman entered the room. Soldiers stand to salute the flag or when an officer enters the room. The list goes on.
But why should we make a special gesture of respect for the judge that we wouldn’t make for others? He is merely a political hack who achieved his position by doing whatever was necessary to satisfy the pressure groups and/or politicians in charge of judicial appointments. And, at the time of the command to rise, he has done nothing special to deserve acclaim; he has not delivered any brilliant speech in favor of high ideals, or laid his life down for the greater good. All he did was walk in through a door.
Further, whether one believes in popular sovereignty (rule of the majority of voters) or individual sovereignty (rule of each person over himself), the judge’s office, or the court, should not be elevated above the common citizen (s), even symbolically. In a republic, the people elect the judge either directly or by electing the politicians who appoint the judges. They also directly or indirectly create the laws that bind the judge. In a system of “anarchy,” on the other hand, each individual is in charge of ruling himself, and any institutions for mutual protection are derived from contracts entered into by the willing. Either way, the citizenry, or citizen, must be regarded as the final source of all legitimate government (governments deriving any just powers they might have only from the consent of the governed), so why should we be making gestures of submission to the judge, rather than the judge signalling submission to the sovereign people?
I think this tradition serves as a subtle psychological trick. Salespeople and demagogues know that by getting a person or audience to answer “Yes” to a series of relatively uncontroversial statements, they will be more primed to respond “Yes” when they quickly follow with the decisive question. Governments and other organizations, too, often like to use compliance rituals early in certain proceedings in order to set the tone for the events to follow. An example would be the pledge of allegiance or the quasi-religious moment of silence, which begins the school day for many students. It is intended to remind the students of their place in the political or religious scheme of things. Their submission to this compulsory activity primes them for a whole day of submission to higher authority.
The Washington, DC-based museum of the Laogai (the system of Chinese prison camps) has a catechism-like set of phrases on the wall that prisoners were required to repeat periodically, reaffirming their status as lawbreakers in need of correction. It was, obviously, intended to assist in conditioning a certain response to subsequent instructions. Likewise, beginning the court proceedings with a gesture of obedience to an arbitrary command helps establish a mood that will, however subtly, help nudge people in the direction of meek compliance to the authority of the courtroom. The audience’s participation in this pointless ritual makes even them players in this drama (court proceedings are, after all, like theater designed to tug at people’s heartstrings in certain ways and stimulate knee-jerk responses to convincing-sounding, but fallacious arguments), and distracts from the political realities behind what is going on. The display of pomp stirs people to awe, so that they are less likely to think of the baser goings-on (e.g. backroom political deals over legislation and judicial appointments) that led to this scene taking place.
When I went to court, I decided to experiment to see what would happen if I didn’t stand. When the magistrate judge came in and the bailiff commanded us to rise, I remained seated. The U.S. Marshall ordered, “When we tell you to stand, stand!” Then two of them then twisted my arms rather painfully and forced me to my feet. The transcript records this colloquy (U.S. v. Larson, case no. 10-4964, 10th Circuit, J.A. 24-25):
MR. LARSON: I question the officer being able to lay hands on me to make me stand. THE COURT: Well, you need to stand because that’s just one of the rules that whenever anybody addresses the Court or when the Court or when the Court is addressing anyone, that they need to stand. And so, that’s just the way things are. If you refuse to comply with that, then they were required to assist you in standing. Once you were standing in compliance with that rule, then they have taken their hands off you, and you’ve been able to, obviously, participate in the proceedings as you should be able to participate. So, that’s — that was that situation. Any other questions at this time? MR. LARSON: Where is that rule? THE COURT: Where is that rule? I think it’s just standard practice to stand when you’re being addressed in court.
Nicholas von Hoffman once said in reference to the pledge of allegiance, “Unthinkingly reciting words whenever one is told to do so is either ridiculous or imbecilic or an obedience drill for a people already susceptible to group think.” The government imposes many obedience drills these days, but typically — as in the case of security searches at airports and government offices — there is some excuse for why they are necessary. The command to rise for the court, on the other hand, has no legitimate function, much less a purpose worthy of enforcement by laying hands on people. Therefore, we should look for opportunities to resist, when the benefits seem worth the costs.
Sometimes a defendant will find himself in a position of having little or nothing to lose by resisting. An example might be a terminally ill medical cannabis defendant who already knows he will die in jail while awaiting trial. Or he may have an important enough audience that the benefits of resisting (such as inspiring the observers) will outweigh the costs, in his eyes. In such cases, one might want to refuse to stand.
Audience members, too, can resist participation in the obedience drill. As any prisoner knows, many situations arise in which it is possible to disobey with impunity. An example would be at the end of a meal, when the correctional officer orders all the prisoners to clear out of the cafeteria so that cleanup can begin. If enough other prisoners remain eating, it is safe to stay awhile longer, because it would be inconvenient for that staff to try to discipline all the stragglers. Likewise, in a courtroom, when the command is given to rise, an audience member might wish to delay complying until almost everyone else has risen. Who knows, there might be enough people who refuse to comply that one can get away with it; and one’s own reluctance to rise might inspire others to remain seated as well. Eventually, if enough people disobey, the tradition’s purpose will be defeated and it will be a small, albeit symbolic victory over the State.
Symbolism does matter to governments, after all. That is why they invest so many resources in rituals, ceremonies, etc. designed to impress and manipulate the people. Perhaps it is time for us to take control of the symbolism and turn it from the purposes of authoritarian propaganda to a public statement in favor of individual freedom.