AN ESSAY
Legal doctrine abounds with verbal formulae. In law school, students memorize these shibboleths. They are the “magic spells” that allow them to “correctly” analyze any fact pattern. They rarely get a chance to reflect on what these “spells” mean from a grammatical perspective, or even whether they are prudent. Rather, law school students act under immense time pressure; they can do little but learn the formula and move on the next one. I doubt that many lawyers ever really ponder famous “legal formulae,” either. But since leaving the profession, I think about them all the time. And I see that there is nothing intrinsically prudent or sacred about them. They are merely administrative tools intended to bring illusory order to the nebulous disorder of human experience.
Everyone knows the phrase “beyond a reasonable doubt.” It appears all the time in movies, plays and even rap songs. Jay-Z named his debut album Reasonable Doubt. It has a mythical ring to it; it sounds appealing, even majestic. But does anyone really understand it? What is it? People assume that lawyers and judges understand it. They even think that it leads to the truth. Yet this is error. “Beyond a reasonable doubt” is an invention. It is a good invention because it seeks to protect individual liberty from wrongful criminal conviction. But it remains invention. It does not magically entitle judges and lawyers to find the truth.
“Beyond a reasonable doubt” is a “standard of proof” that governs criminal trials in the United States. In 1970, the Supreme Court famously held that the Constitution’s Due Process Clause requires every State government to apply the standard in every criminal trial. In re Winship, 397 U.S. 358 (1970). Unless the State proves “every fact necessary to constitute the crime charged beyond a reasonable doubt,” said the Court, it denies the defendant Due Process. Id. at 364 (emphasis added). This is hopeful language. After all, “beyond a reasonable doubt” means that a jury must indulge virtually every inconsistency in the evidence in the defendant’s favor. If there is a “tie,” it goes to the defendant—and individual liberty. It forces the government to put all “reasonable doubt” to rest about the defendant’s guilt before it can take away his liberty—or life.
But today I am not writing about constitutional law. I wrote about the law on this subject as a law student. “Beyond a reasonable doubt” interests me now because it impinges upon much larger concerns, like reason, truth, evidence and belief. Unlike many other legal doctrines, this one deals with facts: What do we believe about someone? What “actually happened?” More importantly, how “certain” must we be before we condemn someone to prison or death? And because “beyond a reasonable doubt” is a “verbal formula,” it has grammatical weaknesses. Lawyers do not think about these things. They just look to see what courts said about past cases.
What is the real issue, then? The real issue is evidence at trial. The State seeks either to imprison someone or execute him. It charges him with a crime, a written definition encompassing certain “bad behavior.” To convict him, it must put forward evidence proving that his conduct falls within the written definition. The prosecutor, jury and judge were not there to see this alleged “bad behavior.” There might be rumors about it. Perhaps there are witnesses; perhaps not. For better or worse, those called upon to decide a defendant’s fate must evaluate evidence to formulate the “truth” about “what actually happened.” No juror actually sensed or perceived the alleged event. They must engage in second-hand observation and decide whether something happened. Evidence gives them sensory fodder with which to judge “the truth.” They might hear a witness’ account or see a video recording. They might hear about footprints, or bloody gloves or even confessions. Yet they might also hear that witnesses have an interest in condemning the defendant, or that they have poor eyesight, or that they were distracted, or that the police coerced a confession. All these things constrain their Herculean task: To decide “the truth,” even if they were not there to perceive it.
Yet juries cannot simply speculate on the evidence. “Beyond a reasonable doubt” is an attempt to prevent juries from simply “imagining” things about the defendant. Rather, it forces them to look solely at the evidence. Remarkably, many courts over the centuries have not understood this, let alone the “everyday folk” who comprise juries. As recently as 1994, the Supreme Court dedicated an entire opinion struggling to explain what “reasonable doubt” actually means. Victor v. Nebraska; Sandoval v. California, 511 U.S. 1 (1994). There, the Court said that “reasonable doubt” does not mean “merely possible doubt,” but rather doubt that, “after consideration of all the evidence, leaves the jury with an abiding conviction, to a moral certainty, that the charge against the defendant is not true.” Id. at 8 (quoting Commonwealth v. Webster, 59 Mass. 295, 320 (1850)). It also said that “reasonable doubt:” “[W]ould cause a reasonable person, in one of the graver and more important transactions in life, to hesitate before accepting certain facts as true…it is doubt that, after full and fair consideration of the evidence, leaves you with and abiding conviction, to a moral certainty, that the accused committed the crime charged…you may be convinced beyond a reasonable doubt yet be fully aware that possibly you may be mistaken…you may find a defendant guilty upon the strong probabilities of the case, provided they are strong enough to exclude any doubt of his guilt that is reasonable…it is an actual and substantial doubt.” Victor v. Nebraska, 511 U.S. at 18.
Did the Court really need to spend so much time on the question? After all, it would have been easier to simply look at the phrase from a grammatical perspective. “Beyond” is a preposition that implies “movement past” a particular point. It implies linear motion: One moves along a path; one reaches a point on the path; one moves beyond the point. Anything before that point is not “beyond” the point. A jury can only convict a defendant if it decides that the evidence moves beyond “reasonable doubt” about his guilt. That is the magical point on the path. The evidence must move “past reasonable doubt” in order for the State to condemn the accused.
This is the point at which the Supreme Court should have considered “reasonable doubt.” The word “reasonable” appears everywhere in the law. Unfortunately, very few courts apply a consistent definition. In many cases, judges simply use the word to impose their own standards on certain behavior, namely, standards demanding steady living, hard work and “contribution to society with regard to the property rights of others.” Yet this “normalizing” definition really misses the point. After all, “reasonable” derives from “reason,” specifically, the human capacity to find truth through the senses. A person is “reasonable” if he believes only what his eyes, ears, nose and skin nerves tell him. It is “reasonable” to believe that snow fell last night if one awakes to see the ground covered in snow. It is verifiable. It is possible to infer the fact that snow fell while you slept from the fact that you see snow on the ground now. It is based on perceptible evidence. But it is not “reasonable” to believe that God exists, because no one sees God. Well, some people say they do, but do “reasonable people” believe them? No, they don’t. “Reasonable people” believe in their senses. They are empirical. They doubt anything that their senses do not perceive. For a person who trusts reason, “truth” is a matter of perception. If the person is not there to perceive an event, he listens to what others say about it, looks at physical residue concerning the event, then decides what “reasonably happened” based on things that can be perceived. This is “reasonable thinking.”
Reasonable doubt, then, is any doubt warranted by perceptible evidence. It rules out all speculation. It is purely evidence-based. The Supreme Court did not need to introduce extraneous concepts like “hesitancy” and “important life decisions” in order to explain “reasonable doubt.” It should merely have said that “reasonable doubt” refers solely to sensory evidence. It is doubt that arises from things we perceive. As long as the evidence permits us to doubt something, we have “reasonable doubt.” Doubt is not “reasonable” if we simply “imagine” it. And if we have “reasonable doubt” in any way, we have not moved “past” or “beyond” reasonable doubt. This is the grammatical way to understand the formula “beyond a reasonable doubt:” If we have it, we are not beyond it. We must acquit the defendant. But if we don’t have it and merely imagine it, we are beyond it. That means we must convict him.
I write all this because I think many lawyers and judges merely learn verbal formulae without seriously considering what the words mean. It is one thing to mouth phrases in order to score points on a test. It is quite another to genuinely ponder what those phrases mean in both grammatical and philosophical terms.
“Beyond a reasonable doubt” is a compelling phrase for several reasons. For one, it reinforces the law’s commitment to “reason” above all else. There is no faith in the law. Spirit is irrelevant. There is only body, property, the senses and “tangible things.” Reason can govern these things; yet it is banal. After all, there is nothing remarkable or spiritually uplifting about arguing over who saw what and who owes whom what dollar amount. These are the concerns of both reason and the law.
Second, “beyond a reasonable doubt” represents the law’s attempt to sort out facts. Courts have an immensely hard time doing this because facts are elusive. No matter what courts say, facts are never determinate. Facts merely represent belief based on second-hand evidence. When courts compose long “fact sections” in their opinions, they do not recount “exactly what happened.” They are merely reciting what the court below them “believed” after applying an arbitrary standard. Put simply, courts do not like talking about facts. Facts are messy. And in the end, they are arbitrary. Once one court believes a fact, it is almost impossible to alter that fact on appeal. This has nothing to do with “truth.” It has everything to do with “administrative convenience” and “interpretation.” Judges don’t reopen factual disputes because they inevitably degenerate into “he said she said” wars long after the event. Judges get to say: “OK, this is what happened,” even if their version is not really true. Interpretation is power: The power to announce the truth, even if untrue.
Reason can help us answer many questions about our existence. I trust it in all situations in which it is valid. I think it is valid in criminal law, because criminal law addresses matters to which reason applies: External behavior that can be “directly perceived” or “inferred.” It does not involve faith or belief; at least, in should not. “Beyond a reasonable doubt” is a good standard in criminal trials because it forces juries to apply only their reason, not their passions or their prejudices. Sensory evidence produces belief or doubt in the mind. When it produces doubt in a criminal case, the defendant must go free. In this sense, the standard favors liberty. As long as jurors understand what the words “reason” and “beyond” mean, they should never have a problem understanding the “beyond a reasonable doubt” standard.
But perhaps this is exactly the problem. After all, jurors—like all human beings—do not always use their reason at times when they should. Perhaps it is too much to expect that people will always be reasonable.
Showing posts with label Faith. Show all posts
Showing posts with label Faith. Show all posts
Saturday, September 12, 2009
Wednesday, May 27, 2009
WHY WE FEAR DEATH
AN ESSAY
Everyone fears death. The word alone strikes fear in us. It is the worst thing that can befall us. When we die, we are no more. No one can talk to us; no one can hear us tell our stories. We see nothing more. We hear nothing. We taste nothing. We touch nothing. We smell nothing. When we die, we can no longer experience anything. Pain no longer terrifies us. But nor does pleasure beguile us. Death cuts off our ability to experience the earthly world with our senses. And we humans are overwhelmingly sensory creatures. When we die, our bodies cease to be—along with all our senses—leaving our flesh to slowly decompose and turn to dust. No one wants to die. No one wants to leave the world of earthly experience.
Or do they? If we assume that death merely cuts off our ability to experience the earthly world with our senses, then death is not a bad option to someone whose earthly experience is unbearable. Because death and experience intertwine, our attitude toward death should depend on whether our experience in life is largely good or largely bad. Yet very few people consider death with such measured detachment. Death is an intellectual roadblock. It befuddles us because we really do not know much about it, at least metaphysically. No one can tell us “what it is like.” We can only speculate. We cannot plan our response to death because no one can provide us with accurate information about it. Death casts us into uncertainty. Human beings always fear things they cannot know.
Beyond uncertainty, we always think that death deprives us of something. Death makes it impossible for us to see our loved ones again. Death takes away our ability to experience joy and contentment. Even if our lives have little joy, we always hold out hope that one day our fortunes will change. Death, however, robs that hope. It completely precludes us from future joy. No matter how bad our lives may be, if we die, we deny ourselves the possibility of a “dramatic turnaround.” Once we die, it is all over. Again, death terrifies and stultifies us because it drives us into uncertainty about our own decisions. Even if our lives truly will bring us no further joy, we cannot certainly know that at the moment we die.
We also associate death with pain. We live our lives to avoid pain. By avoiding pain, we necessarily try to avoid death. When it comes to pain, our fear increases with the quantum of pain we believe we will face. In other words, we fear serious pain more than minor pain. Similarly, we fear terrible anguish much more than serious pain. We know only what we see, and when we see others die, we typically see them experiencing pain before death. We cannot talk to them after they leave us. We cannot know whether that pain continues after death. Again, uncertainty plays a role in our fears: We associate death with pain, and we cannot certainly know whether death ends that pain. Thus, while it appears that death brings peace to the writhing body, we fear the “undiscover’d country, from whose bourn/ No traveler returns.” Hamlet, Act III, sc. i.
But are our fears about death entirely reasonable? Can we use our reason to stay our fears about death? I think we can, at least to some degree. Let us begin with Hamlet. Hamlet’s speech about death provides an excellent overview of the issues a reasonable man confronts when contemplating death. It also reveals that uncertainty plays a central role in any assessment about death.
Hamlet analogizes life—with all its “slings and arrows of outrageous fortune,” “thousand natural shocks that flesh is heir to,” “heart-ache,” “whips and scorns of time,” “[oppressors’] wrongs,” “pangs of despised love,” and “the law’s delay,”—to “waking.” “Waking life,” in other words, exposes our senses to bad experiences, from sheer “bad luck” to every imaginable health problem, emotional hardship and degrading personal insult. Against “waking,” however, Hamlet contrasts the “sleep of death:” “To die,--to sleep;--/ To sleep! perchance to dream: ay, there’s the rub;/ For in that sleep of death what dreams may come,/ When we have shuffled off this mortal coil,/ Must give us pause.” Hamlet agrees that “sleep” metaphorically puts an end to all the evils that can befall us while we are “awake.” But uncertainty about “the dreams” that lurk in that “undiscover’d country” checks his enthusiasm for death. His uncertainty about death forces him to choose life, remarking that “conscience does make cowards of us all,” prompting us to “bear those ills we have rather than fly to others that we know not of.” See generally, Hamlet, Act III, sc. i, lines 56-90.
Hamlet decided against death based on an assumption. He used his reason to understand why he feared death. He allowed his fear to conquer him and he preferred to suffer the “ills we have” in life rather than accept “others we know not of” in death. I argue that his assumption was not entirely correct. While Hamlet understood that human beings are sensory creatures who experience pain, joy, humiliation and the “thousand natural shocks that flesh is heir to” while they are awake, he did not grasp that their senses also function while they are asleep. We know from common experience that we are alive while we are asleep. We do not experience as much while we are asleep, but no one will dispute that our senses still function. We can still smell things. We still awake when a bug lands on our foreheads because our nerves transmit the stimulus to our brains. We still feel heat and cold. And we still see things in our sleeping minds, even if our eyes do not register them. Our dreams reflect our senses, even if they are not working at “full speed.” Put simply, we must be alive in order to dream.
But when we die, our senses completely cease to function. They do not function at “half speed,” or even residually. We cannot dream when we are dead. To dream, the body requires living brain tissue, living nerves and a living circulatory system. If we are dead, we do not have these things. In that sense, Hamlet is wrong to fear “dreams in the sleep of death.” Death may look like sleep to the outside observer, but the outside observer possesses his senses. The dead man does not. We cannot speak for the dead man, because we do not know what it is like not to have senses, nor has a dead man ever reported to us what it is like. Hamlet could well argue that we do not certainly know what awaits us when we die, so perhaps we truly can dream without the literal sensory capacity to do so. But this is pure speculation. Applying reason alone, we can say with some certainty that dead people sense nothing, and sensory capability is necessary to dream. Now, this does not completely resolve the question about “what awaits us when we die.” Still, it does provide us a reasonable foundation upon which to temper our fears about death. Hamlet’s reasoning only works if we assume that there is some otherworldly “sleep of death” that completely eludes human sense and inference. That requires some faith and speculation. Reason rejects such entreaties. A reasonable man may still fear death, but he certainly can rule out “dreaming” while he is dead.
So what is death like? And if we cannot dream “bad things” when we are dead, why do we fear it? I think that death is probably very much like dreamless sleep. When we sleep or fall unconscious, our sensory capacity drops to a minimum. Time loses all meaning because our senses convey nothing to us, nor does our brain transmit memories, impressions, emotions or impulses. We are essentially “inert matter” awaiting a sensory recharge. Dreams reflect at least some activity in the brain while we are unconscious. But if we do not dream while we are unconscious, we are truly “out of it.” Nothing frightens us. Nothing moves us. Nothing troubles us; nor does anything please us. All these emotions require functioning senses and living tissue. Sleep temporarily stays the senses and tranquilizes the tissue. Death does this permanently. Dreams may interrupt sleep because the senses and tissue reactivate in a reduced way. But death blocks all sensory function. In that light, we can safely infer that, as a matter of common experience, death and sleep reflect states of unconsciousness. We know what it is like to be unconscious. From a reasonable perspective, then, death only differs from sleep in the sense that we will never come to.
This is what we can reasonably fear: We will not wake up. In fact, this is less fear than bitter disappointment. If we know that we will never wake up from death, we will never get to experience all the good things life can offer us. Our fear stems from the certain knowledge that we will no longer experience anything with our senses. After all, death cuts off our ability to experience the earthly world with our senses. The earthly world can delight our senses as long as we are alive. Death eliminates that possibility. That disappoints us, because we like to delight our senses with earthly stimuli. It gives us joy. When we are asleep, we cannot see our loved ones or go on vacations. Neither can we see our loved ones or go on vacations when we are dead. Nonetheless, who really minds sleeping? People all enjoy peaceful sleep. Perhaps they enjoy it more knowing that their senses will reactivate in the morning. But when they are asleep they are not complaining about anything, especially if they are not dreaming. In a word, sleep—like death—cuts off our ability to experience things, both good and bad. This is not entirely a bad thing.
In past satires, I stressed that we should not fear death because eliminating our ability to experience earthly life with our senses rules out a lot of horrible things. First and foremost, death defeats pain. As mentioned, human beings fear death because they associate it with pain. But pain—like Hamlet’s “whips and scorns” and “the thousand natural shocks that flesh is heir to”—depends upon functioning senses, nerves and living bodily tissue. When the senses no longer function, pain disappears. Death cuts off the ability to experience everything, including the pain that flows from tortured nerves. Death defeats pain because pain depends on the senses, and death shuts down the senses. We can rightly fear pain if we know we will live to experience it. But we should not think that death is painful, because death precludes our ability to experience anything, including pain. In my view, anything that rules out our human capacity to experience bodily suffering is a good thing. While we might permanently forgo the opportunity to positively stimulate our senses when we die, we also permanently lose our ability to suffer negative sensory stimulation. If our lives are full of pain, worry, anxiety, agony, humiliation and hopelessness, death will deny our bodies the sensory capacity to continue tormenting us. In that sense, death is actually an outcome to be wished, not an end to be feared. Sensory experience is a two-edged sword. It can both delight and torture us. Death denies our ability to experience both. If sensory experience in life tortures us more than it delights us, then why should we fear death?
Reason tells us that death is a neutral event. Applying our senses, we can reasonably infer that death looks like sleep. We can also infer that we must be alive to dream. Thus, we can rule out any suggestion that we dream when we are dead. Continuing this reasoning, we also know that we must be alive—with functioning senses—to experience both positive and negative sensory stimulations, from inexpressible ecstasy all the way down to unimaginable agony. Similarly, we can infer that we can experience neither positive nor negative sensory stimulations when we are dead. We can conclude that death cuts off our ability to experience the earthly world with our senses. If reason is our guide, we are left with only two real reasons to fear death: (1) We permanently forgo the chance to experience positive feelings later in our lives, even if current circumstances are bad; and (2) Something happens after we die that eludes all reasonable explanation.
Ay, there’s the rub. Here we encounter the real problem; here we see the real uncertainty. Unless we truly believe that reason answers all our questions, we can never say with certainty whether anything exists or happens beyond reason. Some people believe we must choose between faith and reason. Personally, I believe in reason to the extent that human sense can answer a particular question. My senses tell me that corpses do not possess any sensory capacity. Medical science confirms that a dead brain has no function. My senses also tell me that the senses do not function without a functioning brain, and functioning senses are necessary to experience the earthly world. But my senses cannot tell me whether something happens to us after death, just as my senses cannot tell me whether God exists, or whether my life was fated to move down a particular path. There are unexplainable things in the world. Sense cannot grasp them. We fear them precisely because we cannot know them. Still, I am prepared to trust reason on all questions in which it provides a valid way to answer them. From an abstract perspective, that helps me cope with death.
But we can reasonably fear death if we posit that reason does not give us the whole picture about life. How can we know whether there is a state of consciousness beyond the senses? No living person has ever told us about it. When we die, perhaps we enter some hitherto unknown dimension in which our understanding about experience and sense no longer apply. I don’t know. I just don’t know. Nonetheless, now I am speculating. On this point, I take comfort. When it comes to pure reason, I can prepare myself for death. It is mere sensory shutdown. When it comes to faith, however, I am as lost as everyone else. If there is existence beyond sense and experience, I cannot comment about it. All I can say is that I do not know about it.
Everyone fears death. The word alone strikes fear in us. It is the worst thing that can befall us. When we die, we are no more. No one can talk to us; no one can hear us tell our stories. We see nothing more. We hear nothing. We taste nothing. We touch nothing. We smell nothing. When we die, we can no longer experience anything. Pain no longer terrifies us. But nor does pleasure beguile us. Death cuts off our ability to experience the earthly world with our senses. And we humans are overwhelmingly sensory creatures. When we die, our bodies cease to be—along with all our senses—leaving our flesh to slowly decompose and turn to dust. No one wants to die. No one wants to leave the world of earthly experience.
Or do they? If we assume that death merely cuts off our ability to experience the earthly world with our senses, then death is not a bad option to someone whose earthly experience is unbearable. Because death and experience intertwine, our attitude toward death should depend on whether our experience in life is largely good or largely bad. Yet very few people consider death with such measured detachment. Death is an intellectual roadblock. It befuddles us because we really do not know much about it, at least metaphysically. No one can tell us “what it is like.” We can only speculate. We cannot plan our response to death because no one can provide us with accurate information about it. Death casts us into uncertainty. Human beings always fear things they cannot know.
Beyond uncertainty, we always think that death deprives us of something. Death makes it impossible for us to see our loved ones again. Death takes away our ability to experience joy and contentment. Even if our lives have little joy, we always hold out hope that one day our fortunes will change. Death, however, robs that hope. It completely precludes us from future joy. No matter how bad our lives may be, if we die, we deny ourselves the possibility of a “dramatic turnaround.” Once we die, it is all over. Again, death terrifies and stultifies us because it drives us into uncertainty about our own decisions. Even if our lives truly will bring us no further joy, we cannot certainly know that at the moment we die.
We also associate death with pain. We live our lives to avoid pain. By avoiding pain, we necessarily try to avoid death. When it comes to pain, our fear increases with the quantum of pain we believe we will face. In other words, we fear serious pain more than minor pain. Similarly, we fear terrible anguish much more than serious pain. We know only what we see, and when we see others die, we typically see them experiencing pain before death. We cannot talk to them after they leave us. We cannot know whether that pain continues after death. Again, uncertainty plays a role in our fears: We associate death with pain, and we cannot certainly know whether death ends that pain. Thus, while it appears that death brings peace to the writhing body, we fear the “undiscover’d country, from whose bourn/ No traveler returns.” Hamlet, Act III, sc. i.
But are our fears about death entirely reasonable? Can we use our reason to stay our fears about death? I think we can, at least to some degree. Let us begin with Hamlet. Hamlet’s speech about death provides an excellent overview of the issues a reasonable man confronts when contemplating death. It also reveals that uncertainty plays a central role in any assessment about death.
Hamlet analogizes life—with all its “slings and arrows of outrageous fortune,” “thousand natural shocks that flesh is heir to,” “heart-ache,” “whips and scorns of time,” “[oppressors’] wrongs,” “pangs of despised love,” and “the law’s delay,”—to “waking.” “Waking life,” in other words, exposes our senses to bad experiences, from sheer “bad luck” to every imaginable health problem, emotional hardship and degrading personal insult. Against “waking,” however, Hamlet contrasts the “sleep of death:” “To die,--to sleep;--/ To sleep! perchance to dream: ay, there’s the rub;/ For in that sleep of death what dreams may come,/ When we have shuffled off this mortal coil,/ Must give us pause.” Hamlet agrees that “sleep” metaphorically puts an end to all the evils that can befall us while we are “awake.” But uncertainty about “the dreams” that lurk in that “undiscover’d country” checks his enthusiasm for death. His uncertainty about death forces him to choose life, remarking that “conscience does make cowards of us all,” prompting us to “bear those ills we have rather than fly to others that we know not of.” See generally, Hamlet, Act III, sc. i, lines 56-90.
Hamlet decided against death based on an assumption. He used his reason to understand why he feared death. He allowed his fear to conquer him and he preferred to suffer the “ills we have” in life rather than accept “others we know not of” in death. I argue that his assumption was not entirely correct. While Hamlet understood that human beings are sensory creatures who experience pain, joy, humiliation and the “thousand natural shocks that flesh is heir to” while they are awake, he did not grasp that their senses also function while they are asleep. We know from common experience that we are alive while we are asleep. We do not experience as much while we are asleep, but no one will dispute that our senses still function. We can still smell things. We still awake when a bug lands on our foreheads because our nerves transmit the stimulus to our brains. We still feel heat and cold. And we still see things in our sleeping minds, even if our eyes do not register them. Our dreams reflect our senses, even if they are not working at “full speed.” Put simply, we must be alive in order to dream.
But when we die, our senses completely cease to function. They do not function at “half speed,” or even residually. We cannot dream when we are dead. To dream, the body requires living brain tissue, living nerves and a living circulatory system. If we are dead, we do not have these things. In that sense, Hamlet is wrong to fear “dreams in the sleep of death.” Death may look like sleep to the outside observer, but the outside observer possesses his senses. The dead man does not. We cannot speak for the dead man, because we do not know what it is like not to have senses, nor has a dead man ever reported to us what it is like. Hamlet could well argue that we do not certainly know what awaits us when we die, so perhaps we truly can dream without the literal sensory capacity to do so. But this is pure speculation. Applying reason alone, we can say with some certainty that dead people sense nothing, and sensory capability is necessary to dream. Now, this does not completely resolve the question about “what awaits us when we die.” Still, it does provide us a reasonable foundation upon which to temper our fears about death. Hamlet’s reasoning only works if we assume that there is some otherworldly “sleep of death” that completely eludes human sense and inference. That requires some faith and speculation. Reason rejects such entreaties. A reasonable man may still fear death, but he certainly can rule out “dreaming” while he is dead.
So what is death like? And if we cannot dream “bad things” when we are dead, why do we fear it? I think that death is probably very much like dreamless sleep. When we sleep or fall unconscious, our sensory capacity drops to a minimum. Time loses all meaning because our senses convey nothing to us, nor does our brain transmit memories, impressions, emotions or impulses. We are essentially “inert matter” awaiting a sensory recharge. Dreams reflect at least some activity in the brain while we are unconscious. But if we do not dream while we are unconscious, we are truly “out of it.” Nothing frightens us. Nothing moves us. Nothing troubles us; nor does anything please us. All these emotions require functioning senses and living tissue. Sleep temporarily stays the senses and tranquilizes the tissue. Death does this permanently. Dreams may interrupt sleep because the senses and tissue reactivate in a reduced way. But death blocks all sensory function. In that light, we can safely infer that, as a matter of common experience, death and sleep reflect states of unconsciousness. We know what it is like to be unconscious. From a reasonable perspective, then, death only differs from sleep in the sense that we will never come to.
This is what we can reasonably fear: We will not wake up. In fact, this is less fear than bitter disappointment. If we know that we will never wake up from death, we will never get to experience all the good things life can offer us. Our fear stems from the certain knowledge that we will no longer experience anything with our senses. After all, death cuts off our ability to experience the earthly world with our senses. The earthly world can delight our senses as long as we are alive. Death eliminates that possibility. That disappoints us, because we like to delight our senses with earthly stimuli. It gives us joy. When we are asleep, we cannot see our loved ones or go on vacations. Neither can we see our loved ones or go on vacations when we are dead. Nonetheless, who really minds sleeping? People all enjoy peaceful sleep. Perhaps they enjoy it more knowing that their senses will reactivate in the morning. But when they are asleep they are not complaining about anything, especially if they are not dreaming. In a word, sleep—like death—cuts off our ability to experience things, both good and bad. This is not entirely a bad thing.
In past satires, I stressed that we should not fear death because eliminating our ability to experience earthly life with our senses rules out a lot of horrible things. First and foremost, death defeats pain. As mentioned, human beings fear death because they associate it with pain. But pain—like Hamlet’s “whips and scorns” and “the thousand natural shocks that flesh is heir to”—depends upon functioning senses, nerves and living bodily tissue. When the senses no longer function, pain disappears. Death cuts off the ability to experience everything, including the pain that flows from tortured nerves. Death defeats pain because pain depends on the senses, and death shuts down the senses. We can rightly fear pain if we know we will live to experience it. But we should not think that death is painful, because death precludes our ability to experience anything, including pain. In my view, anything that rules out our human capacity to experience bodily suffering is a good thing. While we might permanently forgo the opportunity to positively stimulate our senses when we die, we also permanently lose our ability to suffer negative sensory stimulation. If our lives are full of pain, worry, anxiety, agony, humiliation and hopelessness, death will deny our bodies the sensory capacity to continue tormenting us. In that sense, death is actually an outcome to be wished, not an end to be feared. Sensory experience is a two-edged sword. It can both delight and torture us. Death denies our ability to experience both. If sensory experience in life tortures us more than it delights us, then why should we fear death?
Reason tells us that death is a neutral event. Applying our senses, we can reasonably infer that death looks like sleep. We can also infer that we must be alive to dream. Thus, we can rule out any suggestion that we dream when we are dead. Continuing this reasoning, we also know that we must be alive—with functioning senses—to experience both positive and negative sensory stimulations, from inexpressible ecstasy all the way down to unimaginable agony. Similarly, we can infer that we can experience neither positive nor negative sensory stimulations when we are dead. We can conclude that death cuts off our ability to experience the earthly world with our senses. If reason is our guide, we are left with only two real reasons to fear death: (1) We permanently forgo the chance to experience positive feelings later in our lives, even if current circumstances are bad; and (2) Something happens after we die that eludes all reasonable explanation.
Ay, there’s the rub. Here we encounter the real problem; here we see the real uncertainty. Unless we truly believe that reason answers all our questions, we can never say with certainty whether anything exists or happens beyond reason. Some people believe we must choose between faith and reason. Personally, I believe in reason to the extent that human sense can answer a particular question. My senses tell me that corpses do not possess any sensory capacity. Medical science confirms that a dead brain has no function. My senses also tell me that the senses do not function without a functioning brain, and functioning senses are necessary to experience the earthly world. But my senses cannot tell me whether something happens to us after death, just as my senses cannot tell me whether God exists, or whether my life was fated to move down a particular path. There are unexplainable things in the world. Sense cannot grasp them. We fear them precisely because we cannot know them. Still, I am prepared to trust reason on all questions in which it provides a valid way to answer them. From an abstract perspective, that helps me cope with death.
But we can reasonably fear death if we posit that reason does not give us the whole picture about life. How can we know whether there is a state of consciousness beyond the senses? No living person has ever told us about it. When we die, perhaps we enter some hitherto unknown dimension in which our understanding about experience and sense no longer apply. I don’t know. I just don’t know. Nonetheless, now I am speculating. On this point, I take comfort. When it comes to pure reason, I can prepare myself for death. It is mere sensory shutdown. When it comes to faith, however, I am as lost as everyone else. If there is existence beyond sense and experience, I cannot comment about it. All I can say is that I do not know about it.
Tuesday, December 16, 2008
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.
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.
Thursday, November 20, 2008
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?
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?
Saturday, November 1, 2008
"I'LL BELIEVE IT WHEN I SEE IT"
AN ESSAY
This is the empiricists' credo. We have all said it at one time or another, usually when we are incredulous about what another person claims. Essentially, we doubt the truth of what the other person reports to us because we did not perceive the event ourselves. So in essence, we engage in a debate about truth. If we don't see it, we don't believe it. Whether or not something "actually happened," one thing is certain: Most of us trust our senses to give us truth.
I have written about truth in the past. I think "truth" is a widely misunderstood word because it is far more subtle than most people assume. For most, "truth" merely refers to "what actually happened" at a particular time and place. Of course, it is impossible to fully convey in language to another person "what actually happened" at a distinct moment in time if the listener was not present to perceive the moment. Human sense has limitations. The eyes, ears, nose and tongue have a very limited range, and if an event takes place "out of range," then the "truth" depends on language: What does the actual participant in the event tell us about "what happened?" This, of course, is inherently imperfect. For if direct human sense is the best pathway to truth, then obviously a second-hand report sets us out on the wrong foot.
When someone says: "I'll believe it when I see it," they also say: "I trust my senses to give me truth." Additionally, they voice skepticism for any second-hand reports. A sensory approach to truth, then, carries with it an innate suspicion. Language is supposed to help us transcend the limited range of direct human sense. But all too often, human beings do not use language to directly convey what they sensed (even if they could), but rather use language to manipulate its effect on others so as to achieve greater personal advantage. When something happens, we are suspicious when someone later reports about it. We listen, but we do not assume truth; rather, we evaluate how likely it is that the speaker is lying. If there is a low likelihood of manipulation, we more readily believe the report. If there is a high likelihood, we do not believe it. After all, we did not directly sense it. If we do not see it, we do not believe it.
Why is all this significant? Why even bother talking about it? Isn't it obvious that we do not believe what we do not see? Perhaps, but it is precisely this inconspicuousness that interests me. What makes sense so great? Are there "truths" that human sense cannot perceive? I think there are. Yet if we accept: "I'll believe it when I see it" as a mantra for truth, we foreclose ourselves from numerous other "truths" that may exist. If sense is our sole pathway to truth, religion and faith can play no part in our lives. Indeed, it would even be impossible to assert that there is such a thing as a spirit, because a spirit cannot be seen, touched, heard, smelled or tasted. Our sensory organs cannot perceive a spirit; we merely "think we feel it." That is not the same as direct sensory stimulation. And if sense is our guide, we must reject the spirit altogether. That is the inevitable result of an empirical approach to truth.
Faith is a fascinating concept because it rebels against empirical approaches to truth. Faith is a form of belief. Belief, in turn, refers to an individual, subjective impression whether a certain state of affairs is true. It is possible to believe something, in other words, without ever having sensed it. To that extent, belief is very different from knowledge. To know something, our sensory organs must have perceived it. We do not "know" whether our wife is at home until we see her at home. Yet we might "believe" she is at home even if we do not see her there. Belief is simply a subjective mental impression. It is that which every individual holds in his mind to be true, irrespective of sense. Moving further, faith is belief without any insistence on corroborating sensory information. When we have faith in something, we believe it without more. We do not need sensory confirmation to subjectively hold it to be true. Faith, therefore, is the bedrock for spirituality: It allows us to believe things that our senses cannot--and physically never will be able to--perceive. From an empirical perspective, such beliefs are "irrational" because they are not based in sense. But that does not invalidate them as beliefs. They simply represent different approaches to truth.
Empiricism has extremely strong appeal because our senses provide us immediate gratification. When a stimulus triggers our optic nerves, the mind responds. The same happens when a sound triggers our auditory nerves. It is immediate. It is reassuring. That is why believe what we see and hear. But does God stimulate any optic or auditory nerves? Certainly not. From an empirical perspective, then, we should not believe in God--or even any spirit--because we cannot believe anything that cannot stimulate our sensory organs. Doubtless there are many people who believe no more than that which stimulates their senses. Given the limitations our our bodies, they have a good argument: "I can prove anything that can be sensed. So if something cannot be sensed, it cannot exist." Our sensory organs affirm that argument.
But there is a weakness in that argument. We simply need to ask this question: "Can you disprove the existence of anything that cannot directly be sensed?" Here, we see that sense cannot provide answers. A spirit, for example, cannot directly be sensed. How can sense disprove it? It cannot; and therefore it is impossible to certifiably say that spirits do not exist. True, an individual can say: "I do not believe that spirits exist because I personally have never perceived a spirit with sensory organs." But the mere fact that one individual has not directly perceived something does not prove that something does not exist. Subjectively, there is no problem saying: "I do not believe what I do not see," but it does not answer the larger question whether there are other pathways to truth. In fact, one would engage in significant judgment by saying: "No one can possibly believe in anything that I cannot sense." That would violate others' beliefs. And because belief is entirely subjective, it would be unfair to use one's own sensory impressions to govern the beliefs of others.
I suppose there is a time and a place for both empiricism and faith. I was raised with an empirical approach. My senses provided my truth and it seemed to correspond with the environment around me. As I got older, however, I began to seriously wonder whether there was more to life than the immediate stimuli around my body. After all, I could not disprove the existence of anything I could not perceive, so how could I say there was not more out there? That is why I do not judge faith. In fact, I leave myself open to faith in some matters. I can accept faith because I accept that my own senses have limitations. There are propositions that human sense cannot disprove, and I cannot say one way or another whether those propositions are true or untrue. But I can decide whether or not I believe those propositions. This is the intersection between sense, faith and belief. As an individual, I decide whether to believe in something that I cannot perceive. It is my choice. No one can make it for me, and no one can prove me wrong because it is my own impression.
Every human institution can choose the method by which it approaches truth. Human sense is a good common denominator for people. That is why government and law ostensibly use human sense as their lingua franca. Most people believe what they perceive. That is why the law insists on formal proof through the human senses. Obviously there are things that could never be proved in a court, such as the existence of spirits. But when it comes to everyday administration, property and tangible "realities," human sense can answer most questions. And when it comes to the limits of human observation, then human sense is all we have. Science depends solely on human sense to formulate truth. Science takes human sense to its maximum potential. Yet even that maximum potential has limits. For sense can work only as far as the subject matter will allow. That is why science--like law--cannot disprove the proposition that spirits exist. Science must admit: "There is nothing in our sensory arsenal that can answer that question." Science can say that it has not observed spirits, but that does not disprove the proposition that spirits exist. At the end of the day, we must concede: "Observation may not reveal every truth." Science, then, is a limited art.
Where does this all lead? I am not afraid to say that I do not know. I do not know because I do not dare to presume that there is a single pathway to truth. As a matter of administrative convenience, sometimes I believe only what I see. But I understand that human sense has limits, and I do not foreclose myself from believing in things beyond my comprehension. Having said that, I can say one thing for certain: I reject any argument that there is one way to truth. I do not dedicate myself to a single approach. In some matters I am an empiricist. In others, I have faith. In either event, I am prepared to believe that there is more to my existence than the sensory barrage that besieges my body every day.
This is the empiricists' credo. We have all said it at one time or another, usually when we are incredulous about what another person claims. Essentially, we doubt the truth of what the other person reports to us because we did not perceive the event ourselves. So in essence, we engage in a debate about truth. If we don't see it, we don't believe it. Whether or not something "actually happened," one thing is certain: Most of us trust our senses to give us truth.
I have written about truth in the past. I think "truth" is a widely misunderstood word because it is far more subtle than most people assume. For most, "truth" merely refers to "what actually happened" at a particular time and place. Of course, it is impossible to fully convey in language to another person "what actually happened" at a distinct moment in time if the listener was not present to perceive the moment. Human sense has limitations. The eyes, ears, nose and tongue have a very limited range, and if an event takes place "out of range," then the "truth" depends on language: What does the actual participant in the event tell us about "what happened?" This, of course, is inherently imperfect. For if direct human sense is the best pathway to truth, then obviously a second-hand report sets us out on the wrong foot.
When someone says: "I'll believe it when I see it," they also say: "I trust my senses to give me truth." Additionally, they voice skepticism for any second-hand reports. A sensory approach to truth, then, carries with it an innate suspicion. Language is supposed to help us transcend the limited range of direct human sense. But all too often, human beings do not use language to directly convey what they sensed (even if they could), but rather use language to manipulate its effect on others so as to achieve greater personal advantage. When something happens, we are suspicious when someone later reports about it. We listen, but we do not assume truth; rather, we evaluate how likely it is that the speaker is lying. If there is a low likelihood of manipulation, we more readily believe the report. If there is a high likelihood, we do not believe it. After all, we did not directly sense it. If we do not see it, we do not believe it.
Why is all this significant? Why even bother talking about it? Isn't it obvious that we do not believe what we do not see? Perhaps, but it is precisely this inconspicuousness that interests me. What makes sense so great? Are there "truths" that human sense cannot perceive? I think there are. Yet if we accept: "I'll believe it when I see it" as a mantra for truth, we foreclose ourselves from numerous other "truths" that may exist. If sense is our sole pathway to truth, religion and faith can play no part in our lives. Indeed, it would even be impossible to assert that there is such a thing as a spirit, because a spirit cannot be seen, touched, heard, smelled or tasted. Our sensory organs cannot perceive a spirit; we merely "think we feel it." That is not the same as direct sensory stimulation. And if sense is our guide, we must reject the spirit altogether. That is the inevitable result of an empirical approach to truth.
Faith is a fascinating concept because it rebels against empirical approaches to truth. Faith is a form of belief. Belief, in turn, refers to an individual, subjective impression whether a certain state of affairs is true. It is possible to believe something, in other words, without ever having sensed it. To that extent, belief is very different from knowledge. To know something, our sensory organs must have perceived it. We do not "know" whether our wife is at home until we see her at home. Yet we might "believe" she is at home even if we do not see her there. Belief is simply a subjective mental impression. It is that which every individual holds in his mind to be true, irrespective of sense. Moving further, faith is belief without any insistence on corroborating sensory information. When we have faith in something, we believe it without more. We do not need sensory confirmation to subjectively hold it to be true. Faith, therefore, is the bedrock for spirituality: It allows us to believe things that our senses cannot--and physically never will be able to--perceive. From an empirical perspective, such beliefs are "irrational" because they are not based in sense. But that does not invalidate them as beliefs. They simply represent different approaches to truth.
Empiricism has extremely strong appeal because our senses provide us immediate gratification. When a stimulus triggers our optic nerves, the mind responds. The same happens when a sound triggers our auditory nerves. It is immediate. It is reassuring. That is why believe what we see and hear. But does God stimulate any optic or auditory nerves? Certainly not. From an empirical perspective, then, we should not believe in God--or even any spirit--because we cannot believe anything that cannot stimulate our sensory organs. Doubtless there are many people who believe no more than that which stimulates their senses. Given the limitations our our bodies, they have a good argument: "I can prove anything that can be sensed. So if something cannot be sensed, it cannot exist." Our sensory organs affirm that argument.
But there is a weakness in that argument. We simply need to ask this question: "Can you disprove the existence of anything that cannot directly be sensed?" Here, we see that sense cannot provide answers. A spirit, for example, cannot directly be sensed. How can sense disprove it? It cannot; and therefore it is impossible to certifiably say that spirits do not exist. True, an individual can say: "I do not believe that spirits exist because I personally have never perceived a spirit with sensory organs." But the mere fact that one individual has not directly perceived something does not prove that something does not exist. Subjectively, there is no problem saying: "I do not believe what I do not see," but it does not answer the larger question whether there are other pathways to truth. In fact, one would engage in significant judgment by saying: "No one can possibly believe in anything that I cannot sense." That would violate others' beliefs. And because belief is entirely subjective, it would be unfair to use one's own sensory impressions to govern the beliefs of others.
I suppose there is a time and a place for both empiricism and faith. I was raised with an empirical approach. My senses provided my truth and it seemed to correspond with the environment around me. As I got older, however, I began to seriously wonder whether there was more to life than the immediate stimuli around my body. After all, I could not disprove the existence of anything I could not perceive, so how could I say there was not more out there? That is why I do not judge faith. In fact, I leave myself open to faith in some matters. I can accept faith because I accept that my own senses have limitations. There are propositions that human sense cannot disprove, and I cannot say one way or another whether those propositions are true or untrue. But I can decide whether or not I believe those propositions. This is the intersection between sense, faith and belief. As an individual, I decide whether to believe in something that I cannot perceive. It is my choice. No one can make it for me, and no one can prove me wrong because it is my own impression.
Every human institution can choose the method by which it approaches truth. Human sense is a good common denominator for people. That is why government and law ostensibly use human sense as their lingua franca. Most people believe what they perceive. That is why the law insists on formal proof through the human senses. Obviously there are things that could never be proved in a court, such as the existence of spirits. But when it comes to everyday administration, property and tangible "realities," human sense can answer most questions. And when it comes to the limits of human observation, then human sense is all we have. Science depends solely on human sense to formulate truth. Science takes human sense to its maximum potential. Yet even that maximum potential has limits. For sense can work only as far as the subject matter will allow. That is why science--like law--cannot disprove the proposition that spirits exist. Science must admit: "There is nothing in our sensory arsenal that can answer that question." Science can say that it has not observed spirits, but that does not disprove the proposition that spirits exist. At the end of the day, we must concede: "Observation may not reveal every truth." Science, then, is a limited art.
Where does this all lead? I am not afraid to say that I do not know. I do not know because I do not dare to presume that there is a single pathway to truth. As a matter of administrative convenience, sometimes I believe only what I see. But I understand that human sense has limits, and I do not foreclose myself from believing in things beyond my comprehension. Having said that, I can say one thing for certain: I reject any argument that there is one way to truth. I do not dedicate myself to a single approach. In some matters I am an empiricist. In others, I have faith. In either event, I am prepared to believe that there is more to my existence than the sensory barrage that besieges my body every day.
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