HOW TO BE A GOOD PERSON : IN A LANDLORD'S EYES

OESTERHOUDT STRIKES

At some point in our lives, we all wonder whether we are "good people." We live with others. We know how "good people" act. We have an intuitive sense about what makes a person "good." We even hear things about what makes a person "good:" They are friendly, kind, forbearing, compassionate, ethical, honest, caring, loving, trustworthy, gracious, forgiving and generous. "Good people" do not hurt you. They do what they say; and they apologize if they do not. They consider you at the same time they consider themselves. Aristotle and many other philosophers have written tomes about what it takes to be "good." It is an age-old question.

Of course, not everyone can agree on what is "good." You can't know you are a good person until you know what is good in the first place. What is good in one person's eyes may be bad in another. It is easy to lay down absolute standards for goodness. Yet like all ethical dilemmas, only we can say whether we subjectively feel that we have done right. Nonetheless, we can generally all agree that being "good" involves living without intent to injure other people. In that sense, being a "good person" essentially depends on positive motivation. And that positive motivation shines through in good actions toward others. Good people think selflessly; they refuse to hurt others to advance their interests. Bad people do the opposite; they are willing to hurt others to help themselves.

Being a good person is an individual lifestyle. It does not depend on how much money you make or what you do for a living. While it is possible to identify "objective" factors that hint whether a person is "good," true goodness comes from the heart, not from action alone. Enron fraud artists probably donated some money to charity the same year they robbed millions; that donation did not make them good people. No, being good is internal; and good shines through in external action. It is hard to verify. But everyone knows it when they see it.

It is refreshing to know a truly good person because they are rare. In our world, it is hard to be selfless and honorable. There are so many impulsions to discard goodness toward others in order to advance yourself. By the same token, it is hard to be patient. No one wants to wait or understand others' problems. Nor do they want to waste their time on others without reward. After all, people need to fend for themselves. They only have a limited time to get the job done. If they waste their time being nice to others, they might injure their own fortunes. And no one likes to do that. Put simply, we expect most people not to be good; our society frustrates goodness. That is why it is a welcome relief to meet a good person.

There is no formula to being a good person. Yet people throw the term around far more than they should. In many cases, they say someone is "good" solely because they act in a way that enriches them. That misunderstands what it means to be good. A truly good person acts with malice toward no one. The fact that a person acts the way another person wants them to does not make him good. To the contrary, expecting a person to act in a way that is beneficial to you undermines their value as an individual. It "instrumentalizes" them; it makes them pawns in a game you want to win. Just because someone pays you according to a contract does not make them "good." Merely fulfilling an external legal obligation is no shortcut to goodness. A good person holds to his word because it is his word, not because the law threatens him to do so.

Yet many people think that observing external obligations makes you "good." It is easy to make this mistake. After all, complying with the law seems like a "good" thing to do. But the law is indifferent to intention. And intention is the only thing that determines whether a person is good. In that sense, it is possible to seem good by fulfilling every imaginable legal standard. Yet it is also possible to have only bad intentions while complying with the law. You can be a total scoundrel yet do nothing illegal. If a person did not know you, they might say: "Well, he is law-abiding. So he must be a good person." To that extent, fulfilling external obligations can disguise ethical flaws.

I encountered an example to illustrate this easily confused distinction in the New York Post a few days ago. I read an article about some poor web designer who got run over in a Brooklyn street. See N.Y. Post, Horror hit-run in B'klyn, April 19, 2010 at p. 9. The article quoted his landlord. She spoke about his character: "He works. He comes home. He's a very good person (emphasis added)."

What did the landlord know about this guy? How did she know he was a "very good person?" She based her assessment on the fact that he works and comes home. What does that have to do with ethical goodness or pure intention? Nothing. If anything, it reveals that the landlord thinks the web designer was a "good person" solely because he went to his job, came home every night and ostensibly paid the rent. He might have been an utter scoundrel who doublecrossed his friends and broke women's hearts. Yet as far as the landlord was concerned, he was a "good person" because he adhered to his contractual obligations to pay rent. He also was a "good person" because he quietly went to his job and caused no disturbances.

I suppose this is what it takes to be a "good person" in a landlord's eyes. Landlord apply a "formula" for goodness: Have good credit; make an income; cause no trouble; pay your rent; keep your mouth shut; pay next month's rent; pay a late fee after the first. Your intentions do not matter. And "being a good person" means acting exactly the way the landlord wants. In this case, the landlord happened to like the way her tenant behaved because he did what enriched her. She morally approved him because his behavior coincided with her interests. His own ethical qualities did not influence her appraisal. It was "all about her." And that determined whether he was "good."

This gravely misunderstands what it means to be a "good person." A person is not "good" simply because he acts in a way that enriches another. Nor is he "good" simply because he adheres to contractual obligations under law. Rather, goodness is more subtle than that. There is no checklist. Action is not enough. It takes real reflection to see whether someone is good. Getting a rent check in the mail every month does not suffice to prove goodness.

Criminals and scallywags can mail rent checks, too. That does not make them good people.

But who has time to sit down and really think about character in our society? It seems we only care about character when we want to damage a foe with some embarrassing "flaw." And once again, we do that to merely to advance ourselves at their expense. By hurting them, we help ourselves. And hurting others is rarely good.

THE LAW HAS NO POWER OVER SOMEONE WHO DOES NOT CARE ABOUT HIS BODY

AN ESSAY

In many essays over the last year, I have paraphrased Martin Luther's argument that the law has power only over the body and property. See, e.g., On Governmental Authority (1523) at p. 23: "The temporal government has laws which extend no further than to life and property and external affairs on earth[.]" Luther draws a distinction between "worldly authority" and "divine authority." He says that the "world is God's enemy" and that a wise prince is a "mighty rare bird." Id. at pp. 60-61. Yet at the same time, he asserts that worldly authority fulfills God's will because it targets "wickedness" and protects meek Christians from violence. Thus, while worldly authority may be crass and unappetizing, it performs a "Christian" function by restraining criminals from inflicting violence.

These ideas influenced me. They further weakened my already weak respect for the law. I shared Luther's low estimation of the law precisely because of the law's base subject matter. In the final analysis, the law's power derives solely from its ability to impact men's bodies and their property. These are external things. They do not transcend time. They have nothing to do with men's beliefs, conscience or thoughts. They are ephemeral, even petty. Human beings who live only to satisfy their bodies and gain property are superficial creatures. Some might even call them hedonists, or at least fatally selfish. Ironically, however, commercial success depends solely on gaining property, which translates into bodily comfort. Commerce typifies "the world." It scarcely warrants surprise, then, that Luther said "the world is God's enemy."

Despite its superficial powers, the law relishes its authority. And for good reason: Because people value their bodies and property so much in this world, it makes sense that they respect the law. After all, the law can seize their property, injure their bodies and take away the things that give them pleasure. True, it cannot compel them to believe things or have honor. But most people could care less about those things. They just want to use their bodies as they wish and buy things that make them feel good. The law influences them because they know the law can impact their bodies and property. It holds them in check because no one wants to experience bodily pain or discomfort, nor does anyone want to lose property. The law works because people are superficial: They like their bodies and property, so they are afraid to lose them.

But what would happen if someone had utter contempt for his body or property? What possible influence could the law have on a man who did not care whether he suffered pain, or whether he owned anything? In a word, the law would wield no power over such a man. If he truly did not care whether someone imprisoned him, beat him, tortured him or executed him, nothing could possibly restrain him from acting in a way that would give rise to those penalties. In the same way, if he did not care whether he lost everything he possessed, the law would not impress him with garnishments, judgments, forced sales or seizures. Put simply, men who do not value their bodies or property can live beyond the law's influence.

That is not to say that the law would not take action against such a man. If the man committed a crime warranting imprisonment, it would imprison him. But the man would not care. In a strange way, his apathy and indifference to punishment would deny the law's effect. The law proceeds on the assumption that it inflicts suffering on an offender for acting in a way it condemns. It asserts its power by doing something to the offender that the offender does not like, just as a parent asserts its power over a wayward child by spanking him. The offender does not like bodily pain, just as the child does not like spanking. Yet if the offender really does not care whether his body experiences pain, what power does the law really have?

In short, anyone with pure contempt for his own body or property can deny the law's effect. Although the law rarely admits as much, it asserts power over its subjects by doing painful things to their bodies and property. How else would it maintain control if it did not threaten to take things away that people enjoy? How else would it force compliance if it did not threaten physical misery for failure to comply? Laws might seem "objective," but they really depend on basic human aversions to pain. By the same token, laws only function because they assume that people do not want to suffer bodily pain. Like any power institution, they enforce their will by threatening to do something the subject does not want. Legal scholars can talk all they want about "neutral laws." But in the end, laws depend on subjective reactions to threatened consequences. People don't like it when their bodies suffer or when they lose their property. So the law threatens those things in order to enforce its commands.

But what about the man who refuses to care whether he feels pain? The law cannot intimidate him. It cannot "entice" him to act as it commands. This is the purest possible rebellion against the law, for even if the law penalizes his body, he does not feel he is losing anything he wants. A penalty only asserts true power when the violator feels that he is enduring something he does not like. Most people do not like bodily pain. That is why the law generally works when it inflicts physical pain: It forces the subject to feel something he does not like. That is real power.

Not so for the man who accepts pain without caring. The law asserts no power over him. It does not force him to experience anything he does not want. By remaining indifferent to physical pain, he denies the law's power. He does not allow it to make him feel any worse than he would on his own. That is rebellion.

Still, how many people can truly ignore their bodies and their property? Nerve endings do not lie. From a theoretical standpoint, however, the best way to revolt against the law is not to care about your body or your possessions. That is a very hard thing to do in this society.

On the other hand, think about "martyrs" and "noble men." Jesus Christ endured excruciating physical agony but did not let it affect him. So did all the "Christian heroes" who willingly suffered torture and death because they had contempt for their bodies and the "things of this world."

In general, the law strikes fear because it targets the things that most people live for: Bodily comfort and property. But it loses all its power when it punishes people who do not care about those things.

CAN THE LAW PUNISH THE MIND?

During law school, I entered an intellectual cocoon. For more than eight hours every day for three years, I exhaustively learned legal doctrine. At the time, I thought this was an immense accomplishment. I still feel some pride for having persevered through the curriculum, if for no other reason than to provide me with the mental discipline I need to methodically sift through arguments. But unlike before, I no longer put my undivided faith in law to answer questions. While studying law, I had very little exposure to other disciplines. Because I spent so much time reading judges’ words, I slowly began to think that judges knew everything. How wrong I was.

It took many months for me to “temper” my legal knowledge with insights from other fields. I have not forgotten the law. Far from it: I feel that I have situated my legal knowledge within the overall context of Western thought. Law fits into the immense historical discourse of our civilization, whether economic, social, moral or religious. Its doctrines make sense within that discourse, yet in law school we simply learned the legal doctrines. We did not learn about the historical and social context in which they developed. We learned what elements constitute burglary or negligence. We learned how to admit evidence in court. We learned how to form a corporation. But we did not learn how any of these things fit into the overall structure of our Western world.

Legal knowledge has a dangerous capacity: It can narrow the mind. It is easy to understand why this happens. We inhabit a world in which property and money seem to answer all our questions. We seek to make our bodies comfortable by obtaining things. The law prescribes rules and procedures for obtaining property and money, and for adjudicating the inevitable disputes that will arise over them. Governmental force backs these legal rules and procedures. When someone loses a legal case, the government forces him to pay money or surrender his bodily liberty. That is tremendous power. To that extent, it is easy to believe that by studying law, you are learning the only knowledge that “really matters.” After all, if the doctrines you learn can force someone to pay money or go to prison, why learn anything else? This explains why many lawyers have a smug attitude: They know things that can take away your property or bodily liberty. You don’t. So that makes them “better than the average man.”

Yet lawyers do not know everything. In fact, they know remarkably little. True, learning legal doctrine is an immense task, and I certainly do not fault anyone for undertaking it. But I have learned that law is merely one facet in a significantly more complex social construct. As mentioned, law derives its influence from its power to tangibly affect the body and property. After law school, I recognized that these are not the only things that matter in life. They are undoubtedly important (no one wants to be tortured, imprisoned or homeless), but they do not prescribe the limits of human existence. Rather, human existence involves individuals with individual thoughts, impressions and beliefs. Taken together, individuals comprise a society under laws. They depend on law to protect their property and to ensure their bodily safety. Yet the law has virtually nothing to do with their individual beliefs. In other words, the law has no power over the mind, apart from its power to induce people to refrain from actions that will result in punishment or a price.

Martin Luther’s treatise On Governmental Authority (1523) vibrantly illustrates the law’s limits. Luther’s essay arguably lays the groundwork for American notions concerning the separation between church and State, but it goes even further. It also delineates the limits of legal authority. Luther writes: “[T]he soul is not under the authority of Caesar; he can neither teach it nor guide it, neither kill it nor give it life, neither bind it nor loose it, neither judge it nor condemn it, neither hold it fast nor release it.” He later says that we owe the law our “obedience in body and property; command me within the limits of your authority and I will obey. But if you command me to believe or get rid of certain books, I will not obey; for then you are a tyrant and overreach yourself.”

Luther wrote about spiritual freedom. When he says “the soul,” he refers most directly to Christian faith and belief. But he means more than that. “The soul” refers to individual thought, conscience and impression. Luther draws a distinction between “the soul,” which cannot answer to the law, and “body and property,” which must answer to the law. This distinction makes perfect sense in light of my legal studies. Virtually all civil law dwells upon relationships over property, while all criminal law dwells upon bodily actions giving rise to bodily punishments. The law touches body and property, just as Luther explained. What about the soul? Does the law touch the soul, as well?

I have been grappling with this question recently. The more I think about it, the more I feel that the law oversteps its authority when it judges human thought, motivation and belief. After all, why should a person suffer greater punishment in body or property because the law finds fault in his soul? Are not the two spheres entirely distinct from one another? I think they are, but here the law engages in some schizophrenic discourse. In a word, the law does punish people more when it judges their intentions “bad” or “blameworthy” than it does when it judges them “innocent.”

Generally speaking, the criminal law inflicts harsher penalties on people when they act with “bad intent.” The word “intent” litters criminal codes. At the same time, the criminal law does not punish “mere thought.” The criminal law will only punish the body when “mere thought” crosses into physical action. In other words, a physical action may yield precisely the same result, yet the criminal’s mental state determines whether he suffers mild imprisonment or a death sentence. A farmer may leave a tractor running by mistake, allowing it to speed down a hill and kill someone crossing the street. Or he may know someone with a life insurance policy naming him as beneficiary will be crossing the street at a certain time, so he arranges for the tractor to go out of control at exactly the right moment to kill him. In the first case, the defendant may only go to prison for a year. In the second, he could be executed. Why? Because in the second case, the law judges the defendant’s “intention” to be “worse” than in the first.

What does it actually mean to “intend” something? Lawyers throw the word around all the time. Most likely they have an idea what it means, without knowing for sure what the concept involves. In most relevant part, the dictionary tells us that “intent” derives from the Latin verb “intendere,” meaning to “stretch out for” or “aim at.” Webster’s New College Dictionary (4th Ed.). In English, it means “to have in mind as a purpose or plan.” Id. at Meaning 1. In essence, “intend” is purposive; it involves an individual’s mental goal or aim. It describes what the individual “aims at” in a particular action. And it begs an important inquiry: We must closely examine an individual’s mind to determine his precise “aim” at a unique moment in his life. We must ask: “What was this man’s purpose?”

Is this what the law should do? Can anyone other than the individual discover the contents of his own mind? Is not the mind analogous to the “soul” that Luther described in his treatise? If it is, the law has no authority to pass judgment upon it. Nonetheless, the law routinely evaluates individuals’ thoughts, motivations and even beliefs when determining whether they “intended” certain results. These inquiries have nothing to do with body or property, yet they can greatly affect the defendant’s body and property.

In my view, the law drifts into questionable territory when it does this. If anything, the law simply yields to intuitive moral outrage when it more severely punishes an “intentional killing” as opposed to a “careless” one. Human beings recoil when they know someone “deviously” commits a crime. They do not like it. It repels them on a basic, moral level. Morality effectively centers on the question whether an action arouses “disgust” in an “average member of society,” and when someone has a carefully constructed plan to kill another, it arouses more “disgust” in that “average person” than it would if the defendant was simply “careless” in allowing another to die. The law responds to society’s moral baseline. Legislatures incorporate their notions of disgust and outrage into their criminal codes. As a result, the law passes judgment on men’s minds. It punishes what society labels “bad thinking.” As a constitutional matter, people are essentially allowed to pass whatever laws they see fit to advance their interests. But as a philosophical matter, it is debatable whether the law has authority to pass judgment on men’s minds.

Criminal law is not the only legal field in which “intention” plays a substantial role. Even constitutional law makes distinctions based upon individuals’ mental aims. These distinctions have special resonance in cases involving racial discrimination. Over the last century, the United States has attempted—through law—to redress historical discrimination against African-Americans. Although these “legal methods” have proven unwieldy in practice, they at least represent a principled constitutional recognition that African-Americans suffered dreadfully unfair treatment as slaves. And that unfair treatment effectively eviscerated their opportunity to enjoy the benefits of American citizenship.

Congress granted African-Americans the right to sue the government for racial discrimination under the Civil Rights Act of 1871 (now 42 U.S.C. § 1983). To prove their cases, plaintiffs must prove that state actors violated the Equal Protection Clause housed in the Fourteenth Amendment (State) or implied in the Fifth Amendment (Federal). The United States Supreme Court, however, made this undertaking quite difficult by requiring plaintiffs to prove that state actors intended to discriminate against them on racial grounds. In Washington v. Davis, 426 U.S. 229 (1976), for example, the Supreme Court refused to find that the Washington police department discriminated against black police applicants even though they failed an entry test in much larger numbers than their white counterparts. The Court said that the test was “neutral in application,” and the plaintiffs failed to prove that the police force intended to discriminate against black applicants. The mere fact that the test had a “disproportionate impact” on black applicants did not reveal “invidious,” “intentional state action” to deny blacks the right to serve as police officers. Quoting an earlier case, the Court reasoned: “A purpose to discriminate must be present.” The Court allowed the possibility that the “totality of the facts” may permit an inference that state actors “intended” to discriminate, but it refused to make the inference.

What is so significant about this? Again, it shows the law deeply investigating men’s minds. It reflects a judicial tendency to label certain actions “good,” “bad” or “neutral” depending upon the mental state that accompanies them. In the discrimination cases, we see another moral judgment: That it is worse to intentionally discriminate than to incidentally discriminate. It is more morally wrong to have “invidious” mental attitudes toward a race than it is to merely exclude them through “neutral measures.” Interestingly, the Supreme Court revealed a major problem with all legal discourse involving individual intention: It is profoundly difficult to prove. After all, we cannot see the contents of a man’s mind. In law, proof depends on the senses, and there is no direct way to perceive another person’s mind. He can only convey what he intends through language, and even then he may not be telling the truth. Most often, the law must infer intent from external, perceptible facts. It is an imperfect enterprise at best. And there is always more than one way to interpret a physical action.

I venture that proving intent is difficult because intent does not really fit in the pantheon of legal subject matter. As Luther said, the law best applies to body and property. We can see the body and its physical actions. We can see property, or at least physically account for it. But intention is generally invisible. It lives within the mind. It is individual. While intention certainly motivates bodily activity relevant to the law, intention itself does not fit easily in legal discourse. And it baits the law to roam into territory where it traditionally has no place: Individual outlook, belief, thought and personality.

We punish men’s minds because it feels good. If we think we see a no-good backstabber who has bad intentions, we focus our outrage on him, even if we must assume what motivated him. We have precious little power to understand an individual’s unique mental processes. Yet morality compels us to try to understand them as much as we can. In a way, human beings relish feeling disgusted so they can train their anger on the deviant. This is the nature of moral judgment. And it is also the root of all legal preoccupation with intent.

ANOTHER STINKING LAWYER

For the last few weeks, I have been following the Marc Dreier story in the New York Times--and not without a gleeful Schadenfreude. Watching a wealthy lawyer suffer for "acting like a lawyer" gives me great inward satisfaction. I ruthlessly satirize lawyers and their "profession." The Marc Dreier story provides happy corroboration for me. It lends credibility to my criticism. Now, if people claim that I am "too harsh" when criticizing lawyers for greed, superficiality, disngenuousness, glibness and moral bankruptcy, I must merely refer them to Marc Dreier.

Marc Dreier is--(well, "was")--a "top-notch" commercial litigator in New York. He went to Harvard Law School and made all the right moves in life. He founded his own firm in 1996 called Dreier LLP. Dreier LLP describes itself as "a unique group of talented lawyers and remarkable people who have joined in a professional enterprise vigorously dedicated to advancing our clients' objectives." Dreier LLP also says: "We believe the results have set our firm apart." Doesn't that sound nice? "Talented lawyers" and "remarkable people" acting in a "professional enterprise" to "vigorously advance" their clients' interests. And they "get results." How selfless.

What exactly do these "talented lawyers" do? What kinds of "results" set them apart? How about this one: Marc Dreier was recently arrested in Canada for attempting to defraud a Canadian Teachers' Pension fund in connection with a financing deal. Although the details are not clear, Dreier apparently impersonated someone in order to manipulate information that would have been important to know before doing the deal. In the process, Dreier was pocketing cash for himself. What a "remarkable person." What "great results." And what a "talented lawyer," too. Well, if he were more talented, he would not have gotten caught. There's a lesson for you, Marc.

But that was not Dreier's only "great result" in recent weeks. Specifically, it has come to light that Dreier personally defrauded dozens of New York real estate owners by selling them phoney promissory notes. Taking advantage of personal relationships he formed with several major investment houses, Dreier undertook to sell some "choice investment instruments" that actually did not exist. According to the New York Times, Dreier swindled up to $380 million from these deals. Again, a "talented lawyer" at work getting "results that set him apart." Nice one, Marc.

None of these monstrous allegations surprises me because I know what lawyers do. Lawyers are businessmen. They will resort to any means necessary to make a profit, even though they claim to "fight for justice." This "justice talk" is mere rhetoric. Lawyers ply the "law trade," which has nothing to do with intuitive justice or natural notions of right and wrong. The "law trade" concerns only technical compliance with dizzying external rules, standards and protocols. At times those rules are consistent with justice. At times they are not. But as long as a lawyer gets the "result" his client wants, he has done his job--justice or no justice. The lawyer inhabits a world dominated by petty rules and profit-seeking. There is nothing spiritual or inwardly uplifting about it. It is a world of property, money and profit. These are external matters. This is the law's province. As Martin Luther said: "The temporal government has laws that extend no further than to life and property and external affairs on earth." On Governmental Authority (1523). It is a vacuous, unfulfilling, cruel and twisted world where principle means nothing unless it can win a case.

Marc Dreier was a "successful lawyer" because he shrewdly used the law to enrich himself. He selectively used the law for maximum financial gain. In the process, he obtained "results" for his clients that "set him apart" from his competitors. With those "results," obviously his clients liked the way he worked, too. By successfully manipulating legal standards, Dreier became a "top lawyer." But what does that mean? After all, to be a top lawyer is to be a master of only "life, property and external affairs on earth." To be a top lawyer does not require inner strength, conscience, spirit, conviction or belief. Lawyers believe only what they must in order to win cases; they need not have abiding personal beliefs about anything. In fact, lawyers typify everything "un-spiritual" in life. Martin Luther put it best when he sharply distinguished between "men of faith" and "lawyers, ceremonialists and legalists." Commentary on St. Paul's Epistle to the Galatians (1535). In other words, you can either have faith, belief and conscience, or you can be a lawyer. The choice is yours.

My satires target lawyers for all these reasons. There is a great deal more to life than maniacally pursuing property and success, yet this is generally what lawyers do. Worse, lawyers thrive on disputes over property and success. They "creatively" apply rules calculated to win property or to defend it. They know that men squabble bitterly over property, and they resort to any argument needed to win their fights. In essence, lawyers are little more than one-dimensional, spiritually-vacuous brawlers, yet they set themselves on a higher plane than everyone else. They cloak their vacuousness in nice suits and fancy language. They say they have a "profession," but all they really do is play with words in order to make or save money. There is nothing grandiose or spiritually rewarding about that. In Luther's terms, lawyers are quintessentially "of the world" because they fanatically dedicate themselves to "life, property and external affairs on earth." And most significantly, "the world is God's enemy." On Governmental Authority (1523).

What does Luther mean here? Certainly he was writing at a time when most people fervently believed in God. But whether you believe in God or not, Luther's rhetoric has continued strength. Luther makes his points through dualities. He draws striking contrasts between concepts in order to illuminate basic arguments. His distinction between "the world" and "God" has particular relevance in my analysis against lawyers. If the "world" means "life, property and external human affairs," then "God" must mean all those questions beyond earthly life and its property rules. "God" means conscience, faith, internal belief, spiritual well-being and intuitive justice beyond written law. If we do not have "belief and faith," we "become lawyers." That means we descend into "the world."

Marc Dreier epitomizes the dangers lawyers face through unwavering dedication to "world." Without conscience, belief, faith and spiritual well-being, there is nothing but property, wealth and bodily satisfaction. Because the "law trade" draws only on written rules and standards governing life, property and external human affairs, lawyers need not use their conscience to answer questions. They must merely comply with written standards. It is eminently possible to effectively comply with written rules without complying with justice. This is how Marc Dreier became a "successful lawyer." He simply became reckless, so that even his compatriots in "the world" recognized his deception. But Marc Dreier is a product of a spiritless "profession." It should therefore not be surprising that he acted the way he did, because lawyers win success when they ignore conscience rather than observe it. And because lawyers manipulate rules to defend property, it is understandable that they use the same rules to enrich themselves. It is all they know. They are "respected" for their "success," and this encourages them to take more and more chances.

Justice rarely appears in life, let alone the law. But happily, sometimes it does. Marc Dreier is reaping the consequences of his myopic dedication to "the world." Despite all his "success" and "talent" in the law, his failure to incorporate conscience into his existence has landed him in hot water. Still, I do not think that many "successful lawyers" will learn from Dreier's ordeal. They will merely adjust their practices to avoid detection. After all, lawyers inhabit a world where written rules solve every problem. They will simply keep their behavior within the rules, even if they completely trample the spirit behind those rules.

THE LAW : WHO SAID ANYTHING ABOUT JUSTICE?

AN ESSAY

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?

LOGICAL GYMNASTICS

AN ESSAY

There are so many appealing ideas in Christianity. By reading only Christ's words in the New Testament, we receive an overwhelmingly compassionate, positive message. Indeed, it is hard to see how much intolerance grew from Christ's words. By reading only Christ's words, we receive counsel to "turn the other cheek" to our antagonists, to "love our enemies," to "love our neighbors as we love ourselves," to "judge not lest we be judged" and "to knock," so that "the door may be opened to us." Christ says: "Ask, and you shall receive." He says: "No one can be slave to two masters...you cannot be slaves to God and to money." And he says: "Whoever believes in me shall have eternal life in heaven." See generally, Matthew Chs. 5-7; John Ch. 3.

There is not a trace of rancor in these teachings. They say nothing about intolerance, hatred or violence. Indeed, they teach precisely the opposite. They admonish us to be kind, forbearing, patient, calm and tranquil, even in the face of provocation, injury and danger. Taken alone, Christ's words fill us with positive emotions. They encourage us to aspire to noble virtues even when the world tramples upon us. In the abstract, it is hard to express disapproval for Christ's teachings. After all, if everyone acted as Christ taught, there would be no discord or conflict in the world.

Martin Luther understood that. But in his treatise On Governmental Authority (1523), Luther demonstrates how worldly theologians can warp Christian teachings to suit intolerant political aims. Like so many second-hand Christian scholars--beginning with the apostles through St. Augustine and Aquinas--Luther inscribes worldly imperfection into pure Christian belief. After all, reading Christ's words alone, it is hard to imagine how Christianity could be transformed into an intolerant dogma that can justify genocide and hatred. How can this be done? Quite simply: By disingenuous logical gymnastics.

How can Christianity certify violent revenge when Jesus told us "to turn the other cheek" from an evildoer? Matthew 5:39. Taken in the abstract, this teaching categorically bans violence against others, even when they wrong us. Luther sought to evade this command and to certify violent justice against "criminals." To do this, he creates "dualities." He has no textual support for these distinctions; he simply "makes" them in order to fabricate a workable argument. First and foremost, he tells us that the gospel only applies to "true Christians," namely those who truly have faith and practice pure Christianity. But the law--not the gospel--applies to "non-Christians," namely all the rest. Luther makes his job easy by claiming: "Among thousands there is scarcely one true Christian," and "If all the world were composed of true Christians, there would be no need for...prince, King, sword or law." Further, all "non-Christians" are "wicked and subject to the law."

There is nothing in Jesus' words that qualifies the people to whom his teachings apply. As long as a person believes in Christ, he is a Christian. See John 3:16. Luther simply invents an artificial distinction to justify State-sanctioned violence while retaining a "Christian" veneer.

Luther engages in even more logical gymnastics. After neatly separating humanity into "true Christian" and "non-Christian" categories, he uses another Christian teaching to generate a justification for violence against criminals. Specifically, he reminds us that Jesus told us to "love our neighbors as we love ourselves." From that teaching, Luther reasons that a "true Christian lives and labors on earth not for himself alone but for his neighbor." Applying that principle, Luther observes that true Christians need protection from "wicked non-Christians," and legal violence against "wicked non-Christians" helps "restrain them outwardly from evil deeds." Thus, while a "true Christian" does not need the law--he will "turn the other cheek"--it is essential to restrain the wicked from evil deeds, thereby protecting defenseless "true Christians."

Luther does not stop here. He encourages "true Christians" to become "hangmen, judges, constables and prosecutors" because they can "help their neighbors" by killing wicked non-Christians. Luther tells us that a "true Christian" does not punish a criminal out of hatred for the criminal, but rather out of love and service to his neighbor, whom the law protects. In essence, Luther's teaching leads an absurd scene: The executioner whispers to the condemned on the scaffold: "I execute you not because I hate you, but because I love my neighbor." This is what happens when thinkers engage in logical gymnastics.

Luther is certainly not the only theologian, judge or philosopher who engages in logical gymnastics. Whenever transcendent, positive principles are at stake, writers will use logic to reconcile them with crass everyday human practice. Supreme Court justices engage in logical gymnastics all the time as they attempt to circumvent grand constitutional principles such as "freedom of speech," "Equal Protection" and "Due Process of law." No matter who performs the gymnastic feats, the result is always disheartening. After all, by reconciling principle with the imperfect exigencies of everyday human existence, the principles become hollow. They take on perverted meanings. For example, how can one say: "Turn the other cheek," with one breath, then say: "But send him to the gallows if he is a non-Christian so I can help my neighbor." This is disingenuousness. It cheapens the principle. One either turns the other cheek or one does not. There is no "qualified cheek-turning."

Luther would have stood on a better footing if he had simply admitted that Christianity has no place in criminal justice. Criminal justice is a human administrative institution created to address human concerns. In that sphere, it at least has plausible justifications. But pure Christian teachings do not concern everyday human administration; they concern ungovernable individual belief. It makes no sense to reconcile them with a human institution that serves completely different purposes. In fact, there is intractable conceptual conflict between criminal justice and Christ's words. How, indeed, do we "turn the other cheek" when we ruthlessly put a criminal to death? That is not turning the other cheek. That is taking revenge in its purest, most violent form. And that is exactly what Christ did not want to see.

Luther may have been right that there are very few "true Christians" in the world. But that should not discourage people from aspiring to treat their fellow man with respect and dignity. Sadly, the world provides few opportunities to act in a truly Christian manner. To succeed in the world, it is essential to compete for limited resources. Competition does not lend itself to "loving one's neighbor;" in fact, the great temptation is to ignore one's neighbor and focus exclusively on oneself. Different rules apply to the "life game." It makes no sense to force Christian ideals into a quintessentially non-Christian competition. It would be smarter simply to admit that, rather than use logical gymnastics in an effort to reconcile these two fundamentally divergent forces. I have no respect for disingenuous arguments, especially when they mock pure principle. It is simply not possible to turn the other cheek and slap it at the same time, just as it is not possible to promise free speech and prohibit speech at the same time.