Human beings have developed an interconnectedness that is the bedrock of civilization. Our American judicial system is heavily influenced by European thinkers who philosophized that humanity entered a theoretical “social contract” in which humans created governments to “contractually” safeguard their freedoms and equality.
These ideals form the basis of our legal system, which shapes and perpetuates precedent. This philosophy means that the community shapes the law and vice versa. When proponents of social contract theory developed the construct, they seemed to ignore the fact that our society is not made up of people who are equally free in its eyes. This reality means that when there are power imbalances in the community, they are inherently reflected in the law. While most in our society may genuinely strive for equality, ignoring these inequities when applying laws to the community takes us further away from that goal.
The feminist philosopher Carole Pateman argues that while the social contract is the basis on which men have built our patriarchal society, the original social contract was a contract between men and women in which men collectively have dominated women (and non-binary individuals) in society. Jamaican-born philosopher Charles W. Mills also recognizes subjugation of women the world over, and in most societies, racial and ethnic subjugation—what Mills calls “the Racial Contract.” The Racial Contract, like the sexual and class contracts, is an agreement among the privileged to restrict moral and political equality to themselves, maintaining the subordination “out” group—this time, based on race or ethnicity. As you will read in this issue, you will find evidence that American law-making is rooted in such a contract.
These theories of social cohesion are not the only ones, however. Eastern and Indigenous philosophers also endeavored to understand the phenomenon of human togetherness and social society as well. Indigenous philosophy theorizes the concept of “wholeness” wherein all things are interrelated, and we may only reach full understanding of the universe if we understand the interrelation of all things. This offers a fundamentally different philosophy about why humans commune: that it is in our innate understanding of the universe to commune. An Islamic philosophical perspective theorizes that it is our innate moral responsibility to care for, protect, and provide for one another that creates communities and, thus, society.
What truly connects us can be viewed from many different perspectives; however, one thing is clear: as our society evolves, the rules that govern our relationships evolve. Society evolves based on whose voices ring in the public square, whether they are heard, and whether there is will to act upon them. Sometimes, this evolution manifests in legal change, and it is in this act that we see the most dramatic evolution of society.
In this issue, the Hennepin Lawyer examines the role of the law in formulating the society in which we live and how responsive adaptation of the law occurs. Inspired by the murder of George Floyd, the advent of the COVID-19 pandemic, and the ensuing actions taken by citizens, lawmakers, and governments, this issue tackles several questions about the role of lawyers and the law in society. Natasha Phelps explores the declaration by many law-making bodies that racism is a public health emergency and how this declaration uses legal means to advance public health for all citizens. Kassius Benson, our county’s new chief public defender, describes how the Hennepin County Public Defender’s Office is responding to the needs of our community. Elizer Darris, Emily Hunt Turner, and John Goeppinger posit that the legal discipline would be fundamentally transformed for the better through the integration of previously-incarcerated individuals into the bar. The Hennepin County Attorney’s Office gives us a glimpse into the programs that it has developed to respond to the evolving needs of the community. Aaron Fredrickson, Sarah Dannecker, and Sunny Beddow share how pro bono work in the community has changed in the face of the COVID-19 pandemic. And, finally, Judge JaPaul Harris examines how COVID-19 has led to an awakening about the injustices defendants face while they await trial.
Our role as lawyers in this society is to be the bridge between the “social contract” and the people it governs. We shape the parameters of the contract through law-making and judicial interpretation. We push and pull at its boundaries when we advocate for our clients in the courtroom or the conference room. We have a distinctive skill set that allows us to help others understand the inner workings of the rules and institutions that bind our society. In this role, we have the unique ability and solemn duty to act for the greater will, to move society forward, and to honor one another. Considering the shifting tides of the last year, there is no better time than now to examine our role in our society and renew our commitment to doing our work with integrity, honor, and a devotion to the greater good.
By Ayah Helmy
.jpg?sfvrsn=2a1b3c71_0 "esteban (2)")
ahelmy@brighthealthplan.com
Ms. Helmy works as counsel for Bright Health and teaches at the Mitchell Hamline School of Law and the University of Minnesota. She formerly worked in private practice and as an assistant Ramsey County attorney, advising and litigating on behalf of county agencies.