Tuesday, September 15, 2009



Values play a huge role in the law. They infuse American legal doctrine just as they infuse all other associational activities in the United States. Still, values do not blare as loudly through the law as they blare through in more visible discourses, such as popular politics. In fact, values dominate the law in a much more subtle way. After all, according to popular understanding, the law "is blind." In other words, it is somehow detached, fair, unbiased, neutral, cerebral, rational and just, even though it governs biased parties and hotly contentious subject matter.

But it is a mistake to think that values do not infuse the law just as deeply as they infuse popular politics. Through ostensibly "fair" and "neutral" rules, our common law actually reinforces a dominant value system, namely: A complex, bewilderingly unbalanced system prizing industry, commerce, individual responsibility and vested property rights. Broadly speaking, legal rules favor those who own property. They provide predictable guidance in disputes over property, land, liability and money. They encourage unbridled property exchange. They arm property owners with numerous advantages to stop claims that their property or business injured someone. Superficially, the rules appeal to justice. Yet when push comes to shove, the common law's commitment to "vigorous, predictable commerce" and "personal responsibility" (a value judgment in itself) takes precedence over "abstractions." Lawyers who dedicate themselves to justice in practice all too often find themselves submerged in a world of unforgiving procedure and dizzying, often counterintuitive "everyday customs." When they insist on justice before grumbling judges with full dockets, they often invite ridicule rather than respect.

In the end, the common law is not about justice at all. Sometimes justice happens to flow from the rules. But it's not required.

To be a really effective lawyer in the United States, you have to possess certain values. Specifically, you need to have a basic respect for property rights, social distinctions, governmental institutions, order, "appropriateness," commercial activity and the notion that people exist in the world to profit from one another. These values all find expression in American legal rules. They are not necessarily "correct" or "just" values in themselves; they simply reflect dominant values. After all, law has always reflected dominant social values. Those with power dominate others. They obviously will want to brand their views about the world as somehow "official," "correct" and "sacred." In the West, commercial power generates practical power. That is why the common law so rigorously incorporates commercial values.

You cannot be a really effective lawyer if you do not wholeheartedly accept these values. If you have qualms about the notion that profit is the reason why human beings interact with each other, you will have difficulty advocating for a business client who claims he lost money in a deal. If you cannot understand why a person should lose a lawsuit because he filed something a day late due to unavoidable circumstances, you do not possess the "order values" (ie, "deadlines are deadlines") so necessary to bring reliability and predictability to commerce. If you find it repugnant that a client can get away with fraud by inserting the word "or" instead of "and," you are too morally sensitive to be a lawyer. Lawyers comply with rules and zealously manipulate them in order to win money for their clients. Those are the values necessary to be an "effective advocate" in our system. In the law, a conscience is not an asset. It is an impediment.

On some level, all lawyers know this. Until the late 1960s, Bar Associations in virtually every State refused to admit prospective attorneys who conceded membership in the communist party. Some Bar Associations even asked applicants whether they agreed with communist philosophy or Marxism. Even sympathizing with socialistic ideals was sufficient to deny admission to a hopeful lawyer. This may sound appalling to anyone who believes in the First Amendment. But for anyone who understands the values inherent in the common law, this hostility toward communism is hardly surprising. In fact, it is perfectly warranted.

Why is communism relevant to law practice in the United States? Simple: Because socialistic values clash fundamentally with the values enshrined in most common law doctrine. State Bar Associations correctly presumed that anyone who truly believed in Marxism would not be able to "effectively" or "zealously" represent clients in a capitalist system. After all, communism teaches hostility to free market enterprise, economic exploitation, private property ownership and power relationships built upon commercial inequality. It also teaches respect for the dignity and equality of man as an individual, not as a commercial "instrument." Given these values, no one who truly believes in communism could serve a client committed to owning more property, dominating more employees, making more profits, seizing more land and basically becoming richer than his neighbor.

For better or worse, lawyers in the common law system are essentially accessories to capitalistic enterprise. Their very craft defends these values. A communist lawyer, then, would be a walking contradiction.

Our Supreme Court ultimately concluded that States could not condition Bar admission upon matters of conscience or belief, including belief in communist principles. But this does not mean that communists make good lawyers. In fact, I think that States' former restrictions on communist sympathies among lawyers made abundant sense. In our system, after all, lawyers owe a duty to "zealously" represent clients. It is an "adversary system." One side fights to the figurative death for his client's interests, while the other does the same for his client's interests. In most cases, a client's "interests" mean "property interests:" Will the client make money or lose it? To be "zealous," the lawyer must do everything under the sun to vindicate those interests. How could he do that in good conscience if he believes in communism? How could he pull out all the rhetorical stops to either enrich one person or drive another into poverty? Quite simply, he could not. In fact, his communist principles would disable him from putting up a fight at all on behalf of someone who just wants to make more money. Lawyers are ineffective when something blocks their ability to fight tooth and nail for their clients. If a lawyer truly believes in communism, his beliefs will surely block him from advancing legal rules that result in unfairness, economic inequality, class distinction, exploitation and crass private profit. In this light, determining whether a future lawyer believes in communism has prime relevance on the question whether he can "effectively" represent a client.

I write all this to demonstrate that the law is neither neutral nor detached. Contrary to popular belief, it is not "blind," nor does it always fall fairly. Put simply, it is a human institution that voices the values of the society that creates it. In the United States, power created law to suit its purposes. For the most part, those purposes are commercial. Commercial values dominate the law just as much as they dominate the minds of those who practice them. Why do criminal penalties for theft increase according to the value of the goods stolen? Why is stealing a car worse than stealing an old shoe? Isn't the act the same? Why does the law disfavor restrictions on the ability to sell land? And why does the law equip landowners with defenses that make it easy for them to defeat the claims of people who suffer harm on their land?

In all these cases, the answer is the same: Because the law enforces the values of those who own property and seek to gain more. Common law rules make it easy for them to make profits, sell goods, sell land, develop land profitably and defeat lawsuits brought by those who suffer injury due to these activities. They all reflect a dominant value judgment. Those who write rules will naturally tilt the field in their own favor. This is precisely what property owners have done with the common law: They have inscribed their self-serving commercial values into the rules that govern our society. If you own, you're in luck. If you don't, you're not.

Those who own lots of property certainly want fairness and justice for themselves. They commit themselves to it on paper. But when fairness and justice interfere with vigorous commercial activity, "exceptions can be made" and "procedures must be followed." And they expect their lawyers to defend their values and their interests, not start mouthing about "justice." A client in our system does not want abstract justice; he wants "justice for me." Generally, that means making a profit or saving a potential loss.

Against this background, it is no surprise that State Bar Associations ostracized communists. Communists just do not fit in a club dedicated to greasing commercial wheels and furthering profit ambitions. In fact, they probably would gum up the works by talking about "extraneous issues," like avarice in society, inequality and sympathy for disadvantaged people.

Common law judges don't care about all that. They want to know whether the testator used the words "within twenty-one years of the death of a life in being at the time aforesaid," or whether a paper was stamped on the 14th rather than the 15th.

Justice? That doesn't help resolve a case. Rules do.

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