Thursday, November 20, 2008



I have always mocked lawyers for their pedantic attention to minor details. This is not to say that I do not attend to details when detail is important. But lawyers have a reputation for insisting on details that—in the grand scheme—are less than trifling. This morning I read a case review discussing the Illinois Supreme Court’s rules for filing appeals in the correct format. If an appeal does not precisely meet the Court’s formal requirements, the Court will not consider the issues, even if a person’s liberty is at stake. If an imprisoned man wishes to petition the Illinois Supreme Court for a writ of habeas corpus, he must precisely list each issue he intends to discuss in his appeal. If he fails to include an issue in the list, the Court will refuse to consider it, even if he discusses the issue in his legal brief. To my mind, this is formalism run amok. And it confirms my hatred for lawyers’ obsession with procedure, even when procedure leads to injustice.

Hate is a strong word, but I use it quite consciously in these circumstances because I feel that most people mistakenly look to the law as a source of justice and good. In the law, justice is merely a side effect; it is not the law’s true object. Law professors roll their eyes when naïve first-year law students struggle to recognize this sad truth. “How could this case come out like this? What about justice?” Only after reading hundreds of cases does the student see that “justice” is not the law’s purpose. “Justice” refers to an intuitive, unwritten notion of basic right and wrong in a given situation. It draws upon common, unstated humanity, not rigid written rules and procedures. Yet the law is rarely intuitive, and it is always written. It is a product of human reason, not human intuition. Its goals are purely administrative. The law aims to lay down predictable, recognizable rules that encourage people to do business and to restrain them from injuring one another. At times the law will lead to justice. Other times it will not. It is simply not important.

Legal rules often reflect the judgment of the powerful over the weak. The law rarely comes into play without conflict, and most conflicts involve a strong party and a weak party. Strong parties like their strength and want to keep it. They will do their best to write laws in such a way as to keep their strength. English common law, for example, always favored the “more propertied” party in any dispute. Ownership was strength, and the owner had rights against the non-owner. Even criminal laws protected property. The common law reserved harsh penalties for those who disrespected merchants’ property rights. Until the mid-19th Century, England hanged thieves who targeted merchants. Merchants had strength and they lobbied Parliament to draft laws that preserved their strength. It is a familiar refrain. While we may no longer hang thieves, our law nonetheless responds far more readily to the strong than the weak.

Legal procedure ensures that the strong win, even if the weak have a good case. The Illinois Supreme Court rules requiring a “precise statement of the issues on appeal” reveal this phenomenon at work. A prisoner is a “weak” party who naively attempts to use the law as a vehicle for justice. The government, however, is a “strong” party that attempts to use legal procedure to foil such naïve defiance. The prisoner may have been falsely convicted on the basis of improper police work. But if he fails to list that issue in his petition, the Court will not even consider it. The government will win, even if the prisoner is absolutely correct in his assertion. Because the prisoner did not technically meet the formal requirements, he loses. He will never get another chance to argue the issue because the legal procedures ensnared him.

Lawyers would say that this is a perfectly acceptable result. They would say: “Read the rulebook before playing in the courts.” As true as that may be as a technical matter, they miss the point. The crucial question is not whether someone conforms with technical requirements; the crucial question is whether a court does justice. If a court keeps an innocent man in prison simply because he lacked the linguistic acumen to avoid a procedural trap, it holds itself up to ridicule. A court may be perfectly accurate in applying a procedural rule, but if it fails to do clear justice, it arouses outrage. Outrage, of course, does not depend on rulebooks or technical requirements. Outrage breaks out when a person—as an intuitive matter—feels that wrong has been done. Obsessive attention to legal procedure can lead to this. After all, legal procedure often misses the forest for its own trees. In its ruthless insistence on compliance, legal procedure brings to mind Jesus’ rebuke to the Pharisees: “You pay a tenth of mint, dill and cumin, yet you have neglected the more important matters of the law—justice, mercy and faith. These things should have been done without neglecting the others. Blind guides! You strain out a gnat, yet gulp down a camel!…First clean the inside of the cup, so the outside of it may be clean.” Matthew Ch. 23:23-24, 26.

Justice is the “inside of the cup” that legal procedure so often ignores. The law does not seek justice. It seeks only to compel compliance with technical, written requirements. It fixates on the “outside of the cup.” In other words, the law concerns itself only with external matters, not conscience. In many cases, compliance with legal requirements comports with justice, but justice is merely incidental. Dedication to the law, then, requires dedication to the external world. That means dedication to the banal demands of body and property.

Martin Luther commented that the true Christian lives in an internal world of faith and conscience. His goodness flows from his belief in Christ as his Savior and as intermediary between God and man. See, e.g., Commentary on St. Paul’s Epistle to the Galatians (1535). Luther observes that justice lives in the heart, not in the external world, just as Jesus observed that the “more important matters of the law” reside “inside of the cup.” Luther praises the true Christian who “lives in the heart” and does good works that “flow from [] faith,” not external commands. Indeed, Luther draws a sharp distinction between “faith” and “law.” True Christians, he argues, need only faith. All others live in the “world of the law,” which is not only cruel, but also “God’s enemy.” Cf., Treatise on Governmental Authority (1523). In a stinging rebuke, Luther says that without faith, “[w]e shall not be able to observe true theology, but shall immediately become lawyers, ceremonialists, legalists and papists.” Luther equates lawyers with the hateful “world of the law” and its slavish attention to meaningless details. The “world of the law” cares not for justice. It cares only for technical compliance with rules that ultimately mean nothing.

What does this say about lawyers? Lawyers spend their careers arguing whether people have complied with written regulations. They spend their careers arguing whether people should suffer harm to their bodies or property. They need believe nothing; they must merely observe external behavior. They do not live internally. They need no faith. In other words, a lawyer’s trade is spiritually vacuous. That is not to say that there are not lawyers who have spiritual lives. There are undoubtedly many lawyers who believe that their work does justice. But they do not comprehend that the law—in its pure essence—has nothing to do with justice. The law leaves no room for intuition or imagination. A person’s actions either conform to the written standard or they do not. A paper is either “properly filed” or it is not. An application either meets the requirements for an exemption or it does not. Answering these questions does not require a subtle sense of justice; one must merely determine whether the facts meet the governing rule.

Law is mechanical. But law traverses such a vast array of human conduct that it inevitably conflicts with values other than technical compliance. Outrage is common in legal questions because people truly believe that the law should respond to intuitive justice. When the law arrives at an unjust result, it is not because the law failed to do its job. Indeed, unjust results often flow from faithful applications of the law. This is what most people do not understand: That often the law intentionally perpetuates injustice by sustaining dominant social values. Law regulates only the external world. Those who rule the external world enjoy inherent advantages over those who do not. They have the opportunity to preserve their power through law; and they take the opportunity whenever they can. Legal procedure and legal rules preserve power structures. At times it may be just to preserve power structures. At times it is not. Yet the law preserves them in both cases, whether it is just or not.

It comes down to this: A falsely accused man has been tried. The evidence supports conviction. The jury would comply with the law’s technical requirements if it found him guilty. The accused man stands up and says: “All I ask for is justice.” That may be a moving appeal, but he does not understand the law’s purpose. The law dictates a result. It demands compliance. A daring jury would acquit him, but it would violate the law if it did. Query: Must it be daring to do justice? Should not justice be our goal in every instance? Or is orderly administration more important than doing right?

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