Sunday, January 15, 2006
DON'T CALL IT A COMEBACK
I have figured out the problem with the law. Actually, I figured it out about three months ago, but I've been too lazy to memorialize it.
There are (at least) four different modes in which the lawyer operates:
There are various levels of learning associated with being a serious student of any subject, and law is no different. First, one must uncritically master the basics. Mr. Nietzsche would call this the "camel" stage, as in the student must carry all the bag and baggage of his chosen discipline. Law students are familiar with this process -- call it "outlining", "briefing", learning "black letter law", etc. etc. Only after a student has mastered the basics can he begin to critically examine the subject ... or at least do so with any amount of intellectual authority.
As a student, I may think that some aspect of the law is wrong, either because it is rationally inconsistent, or because it is functionally undesirable.
HOWEVER, as an advocate, I may be forced to argue in favor of the point of law that as a student I find objectionable. Yes, I say forced, because the lawyer as advocate has a duty to his client. The only way to remove that duty is to end the relationship of lawyer as advocate and revert back to lawyer as student, perhaps then to re-emerge again as lawyer as advocate for another client whose position I am more sympathetic with.
The lawyer as student/lawyer as advocate dilemma is a common one, especially since most law students would like to make lots of money off of the fact that they are/will be lawyers.
The lawyer as judge also has duties. A duty to the parties in front of him, a duty to society, and a duty to the institution of the law. Oftentimes, the duty to the parties will have to give way to the other duties -- sometimes for the sake of judicial economy, sometimes for some other overriding policy consideration. The judge governs people, in order to govern effectively, he must maintain respect for the law at all costs. (To do otherwise would be tantamount to organizational suicide.) The necessity of maintaining an air of judicial authority requires the judge to speak a certain language -- a lawyerly language -- one that acts to obfuscate just as much as it does to clarify and explain. Principles of equity, what a layman would call a "judgment call", "an appeal to basic concepts of fairness", or, more plainly, "common sense" must be camouflaged behind doctrines of "balancing competing interests" ... and string citations.
The law must be made to look unobvious and the product of serious reflection.
Then there's the lawyer as legislator. I have heard a rumor that when legislators are drafting laws they are sometimes motivated by something other than their conscience. Who knew? At best, compromise is a necessity of the democratic process. At worst, a quid pro quo is a quid pro quo.
These modes all exist within every lawyer. At some times, she must wear one hat; sometimes another. Sometimes she would like to operate as a lawmaker, or as an adjudicator, but the law constrains her to the role of advocate or student. Perhaps there is a hierarchy to these modes.
These modes do not necessarily conflict, depending on your politics, but sometimes they do. Sometimes, a person will be forced to argue so vociferously on behalf of a client that he may even come to believe the bullshit he's shooting out. Like when litigators represent tobacco companies. Or maybe the lawyer simply loves money. Or maybe he does it out of a feeling of duty to "the system", as when a defense attorney defends a person he knows is guilty.
|
There are (at least) four different modes in which the lawyer operates:
- lawyer as student
- lawyer as advocate
- lawyer and adjudicator
- lawyer as lawmaker
There are various levels of learning associated with being a serious student of any subject, and law is no different. First, one must uncritically master the basics. Mr. Nietzsche would call this the "camel" stage, as in the student must carry all the bag and baggage of his chosen discipline. Law students are familiar with this process -- call it "outlining", "briefing", learning "black letter law", etc. etc. Only after a student has mastered the basics can he begin to critically examine the subject ... or at least do so with any amount of intellectual authority.
As a student, I may think that some aspect of the law is wrong, either because it is rationally inconsistent, or because it is functionally undesirable.
HOWEVER, as an advocate, I may be forced to argue in favor of the point of law that as a student I find objectionable. Yes, I say forced, because the lawyer as advocate has a duty to his client. The only way to remove that duty is to end the relationship of lawyer as advocate and revert back to lawyer as student, perhaps then to re-emerge again as lawyer as advocate for another client whose position I am more sympathetic with.
The lawyer as student/lawyer as advocate dilemma is a common one, especially since most law students would like to make lots of money off of the fact that they are/will be lawyers.
The lawyer as judge also has duties. A duty to the parties in front of him, a duty to society, and a duty to the institution of the law. Oftentimes, the duty to the parties will have to give way to the other duties -- sometimes for the sake of judicial economy, sometimes for some other overriding policy consideration. The judge governs people, in order to govern effectively, he must maintain respect for the law at all costs. (To do otherwise would be tantamount to organizational suicide.) The necessity of maintaining an air of judicial authority requires the judge to speak a certain language -- a lawyerly language -- one that acts to obfuscate just as much as it does to clarify and explain. Principles of equity, what a layman would call a "judgment call", "an appeal to basic concepts of fairness", or, more plainly, "common sense" must be camouflaged behind doctrines of "balancing competing interests" ... and string citations.
The law must be made to look unobvious and the product of serious reflection.
Then there's the lawyer as legislator. I have heard a rumor that when legislators are drafting laws they are sometimes motivated by something other than their conscience. Who knew? At best, compromise is a necessity of the democratic process. At worst, a quid pro quo is a quid pro quo.
These modes all exist within every lawyer. At some times, she must wear one hat; sometimes another. Sometimes she would like to operate as a lawmaker, or as an adjudicator, but the law constrains her to the role of advocate or student. Perhaps there is a hierarchy to these modes.
These modes do not necessarily conflict, depending on your politics, but sometimes they do. Sometimes, a person will be forced to argue so vociferously on behalf of a client that he may even come to believe the bullshit he's shooting out. Like when litigators represent tobacco companies. Or maybe the lawyer simply loves money. Or maybe he does it out of a feeling of duty to "the system", as when a defense attorney defends a person he knows is guilty.
|
