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The Law and the Legal Pretext

A “legal pretext” is a justification provided, usually by government and its agents, particularly law enforcement, in an effort to mask one's true intentions. Legal pretext can be general or specific. An example of a general pretext is the State's “police powers”. Such powers, theoretical in nature, are said to be inherent and “natural” in the sovereign. That is, the State has the power flowing from its very existence to provide for the general health, welfare, good morals and, most importantly, safety as it sees fit. This power is codified in the Tenth Amendment to the United States Consititution and is relegated to the States.

A specific pretext can be found in an individual government agents acts, such as when law enforcement makes a “traffic stop”, allegedly for a violation of one of several hundred traffic laws in existence. Such traffic stops are pretextual when they are utilized for ulterior purposes, such as to provide law enforcement with the opportunity to search a vehicle, usually in furtherance of the “war on drugs”.

Other more nefarious pretexts for traffic stops are instances where law enforcement makes a stop because of a drivers race, again in furtherance of the “war on drugs”, on the theory that minorities, usually African-American males, are likely to be selling drugs than engaged in any “legitimate” activity (as if the word “legitimate” has any real meaning; indeed, the very word lacks legitimacy because it implies an absolute right or wrong and the existence of an absolutely neutral arbiter, which is an absurd conception).

The truth is that because government agents are human, with all the flaws, weaknesses, prejudices and problems associated with the race, every law conceived and the application of those laws are pretextual and either designed or enforced in a manner that demonstrates the tastes and prejudices of either the interest lobbying for the law's existence or the government agent engaged in enforcing that law.

That is, the truth of the matter is that the law is a tool employed by those that can employ it to their advantage against those who cannot defend themselves against it. And legal pretexts serve to create enough confusion and “plausible deniability” as to mask the application of raw and unbridled power and present it as “justice”.

And if you're not convinced, read this article from The Huffington Post.

Categories: Legal Theory