Message, by Nick Lewis
I went to law school about 40 years ago expecting to be Atticus Finch in “To Kill a Mockingbird”. I was fully expecting to fight for justice because that is what lawyers do.
Law School quickly disabused me of that notion. Here is what they teach you in law school: It is all grey. Nothing is black and white. Emotion has no place and analysis is paramount. You are taught that if you analyze a fact situation properly, you can see an argument for each side. Justice, which is more of a black and white thing—the idea of “what is right”—is not irrelevant to law, but it is not the essence of being an attorney.
When I got into the real world and actually practiced law, I found that I won cases I should have lost (like getting the jobs back for two workers caught dealing coke outside the factory) and lost some cases where the client really deserved to win (as in when a group of retirees who were denied their health insurance, lost their appeal when the company successfully lied to the court, changing their story about what they had done). Justice seemed to be sometimes done, but it not consistently so.
It often seemed as if it was all as crime novelist Raymond Chandler described: “The law isn't justice. It's a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be.”
As you might imagine, I have been thinking about the nexus between law and justice for a long time and, when Andy volunteered me to give today’s message, my biggest problem was to condense several services worth of thoughts into a relatively brief address.
So, am I about to give a message of resignation and despair? Is the Dickensian view of the law correct?
No. Law and the judicial system are incredibly important to a free society and the possibility of obtaining justice, even if it is not consistently given, is crucial.
But it is important to have clear-eyed view of what the law is and why it cannot be the same as justice.
The philosopher Hannah Arendt wrote “No civilization would ever have been possible without a framework of stability…. Foremost among the stabilizing factors, more enduring than customs, manners and traditions, are the legal systems that regulate our life in the world and our daily affairs with each other.”
The idea of laws is ancient and one can be sure that they were meant to achieve justice when they were enacted. They are often based on fundamental principles like: (1) don’t kill people, (2) don’t take other people’s stuff, (3) if you break it you pay for it, (4) if someone hurts you, they should compensate you. What happens to these good intentions?
Sometimes the community morality underlying the law just changes over time. There are countless examples of this, from slavery to marriage equality, and a discussion of this could be its own lecture.
But the bigger problem is that, once the laws are passed, they have to be administered by people, living in the real world, where nothing is simple. Thus, to cite an ancient example, while the Old Testament laid down an early set of laws, they had to be interpreted by rabbis, leading to countless additional rules, some of which are only loosely related to the original text. The many ways that laws, both religious and civil, have been altered over the years by their subsequent interpretation could its own lecture topic.
In this country, what we call Common Law began to develop once everyone stopped fighting and there began to be a stable state. What was the purpose of that law? It basically aimed at protecting property and contracts and at resolving disputes. This gave landowners certainty that their land was theirs and the guilds certainty that they would be paid for their work. And it gave the king certainty that he would be able to collect taxes.
Even then, there was a recognition that these common law courts could act in ways that were not fair and just. There had to be a way to right such wrong decisions and, at first, the loser could just appeal to the king. But that was a pain for the king, so he turned the whole thing over to an appointed Chancellor, who was trained in religion, rather than law, at least until the appointment of Thomas More changed that tradition.
There was a sort of recognition that courts of law were not about justice and that there had to be some venue where one could seek justice. Seems like a nice idea, right? The problem was that “justice” became whatever the Lord High Chancellor said it was. Whether what he ruled was actually “just” ended up depending on your point of view.
And, of course, that is the thing about trying to define what is just. A slave owner undoubtedly felt that it was utterly unjust to take his property away in the name of individual freedom. One could go on and on with similar opposing views of what is just in a particular situation (and this, again, is the mind set that law schools train one to have). But it is important to remember, in thinking about the role of law and the courts, that when two parties are in a dispute over something, generally neither is completely wrong or right (and both are convinced they are right).
To cut to the chase, court systems evolved, and law came to refer to money (I am seeking money damages for something you did), while equity came to refer to nonmonetary action (like an injunction or an order that you take some action). In the US, the courts of law and equity were merged.
So now that the old, slightly idealistic view of “equity” has become institutionalized, where does justice fit in the legal system?
The legal system is ultimately about resolution and finality and the “Rule of Law”, which one could trace back to the Magna Carta and to Aristotle, but which really became established in sixteenth and seventeenth century England is based on the principle that the state is controlled by the law, not by individuals and that no person is above the law. Individuals thus willingly subject themselves to the limitations prescribed by the law and to the results when it is applied in the judicial system.
This Rule of Law is the underpinning of today’s democracies and republics, in all of their various flavors. And it only works if people feel that there is the opportunity of obtaining justice through the law.
In the criminal courts, their role is to answer the question of guilt or innocence in a relatively fair way and, if necessary to impose a punishment that society deems appropriate. Without the Rule of Law, criminals would not be deterred by aun fair system and mobs might take the law into their own hands, seeking vengeance to avenge their anger. That way leads to anarchy or despotism. Think of the Middle East.
And in the civil area, it is about putting an end to disputes. Just as courts did hundreds of years ago in deciding who owned a piece of property, courts might now decide who own a piece of computer code or an invention. Without the Rule of Law, you could have a kleptocracry as we now have in Putin’s Russia or at the very least an environment that discourages entrepreneurs and businesses, since there is no way to guarantee that your property rights will be protected or that you contracts will be enforced. This protection is one of the great strengths of Western economies such as Britain’s.
And finally, when it comes to protecting freedom and human rights, the law is not perfect, but sometimes you push the right buttons and get lucky and justice does come out. I will spare you citations of cases that bent the moral universe towards justice. There are many. As John Locke wrote, “Where there is no law, there is no freedom.”
However, there is a growing cynicism about the law, which must be a cause for great concern. Harvard Professor Henry Louis Gates has said “I believe in the law. I think we have a great system of justice. But I do think that system of justice has been corrupted by racism and classism. I think it's difficult for 'poor people' - poor white people, brown people - to be treated fairly before the law in the same way that upper-class people are.”
And last June, the Tory Justice Minister Michael Gove stated that, “there are two nations in our justice system at the present.” He said that the “wealthy, international class” receives the “gold standard of British justice, while everyone else has to put up with a “creaking, outdated system”. When the Conservative party speaks out in this way, you know that there is a real problem.
So there is genuine trouble here. Andy spoke last week about life being unfair, which can lead to despair and withdrawal from the system of civilized society. The possibility of justice, in what is admittedly an imperfect system, gives one hope in the face of endemic unfairness. But, if people lose faith in the Rule of Law, if they begin to feel that the system is rigged in favor of the wealthy, the very fabric of society begins to fray. It engenders the sort of anger that Dickens expressed in “Bleak House” and paves the way for demagogues like Donald Trump and others far, far worse. Where Law ends, Tyranny begins.
But what can be done? It won’t be simple. One thing that needs to happen is criminal justice reform to put an end to the mass incarceration of people of color. But ultimately, the underlying problem has much to do economic inequality and governments that often seem more concerned with coddling and protecting the wealthy than in helping the average person to get by. To change this will requires years of work by countless people to bend the arc of the moral universe towards justice. The fight for economic justice is the key issue of our day and is crucial to maintaining the Rule of Law. May that work be successful.
Nick lewis recently moved to London from the New York City area, where he spent much of the past 35-40 years working as an attorney, representing labour unions, pension funds, victims of discrimination, class actions, the elderly and, for three years, the Australian Baseball League. He is currently a writer and painter, living with his wife, Judie, in Shoreditch.