Wednesday, July 23, 2014

Mencken on the Law, and Lawyers

I've written now and then regarding the great H.L. Mencken and his work, generally with admiration.  Now and then I'm disappointed with him, though; particularly by his elitism.  There seems little question that he despised democracy, and I'm rather fond of it, for all its faults.  He's certainly not the first intelligent person to loathe that form of government.  To his credit, it seems he was not so naive as to think that other forms were necessarily better than democracy, as were certain others commencing with Plato, the first systematic totalitarian thinker in our history.  But his unabashed contempt for the common herd can be disturbing.

I also found disturbing a little piece he wrote on war, in which he claimed that it was not as bad as some thought as most were not killed and those wounded generally were not wounded seriously enough to cause concern.  To my knowledge he never experienced war, even as a journalist, and by rights should have said nothing regarding what was encountered by those who did.

He wrote about the law and lawyers, as well, and I think his comments about my fellows and my profession are fair enough for the most part.  Indeed, he affected to admire the intelligence and intellectual prowess of lawyers a great deal.  He sat through many trials, and was impressed by the lawyers' ability to learn a great deal about a subject in a very short time, to think quickly, argue persuasively, on various topics.  But he thought that all this talent and ability was necessarily devoted to matters which are, for the most part, trivial.  That is to say that the subject matter of the law is generally insignificant.

I would say that the word "mundane" is a more appropriate word.  There's no question that in most cases the law and lawyers deal with problems that arise due to the interaction of people in the course of ordinary life.  Momentous issues regarding liberty, religion, free speech are addressed as well of course, but this is rare.  Mencken notes that as a result most lawyers are not remembered by history, with some exceptions, and I think this is true.

Perhaps he would have acknowledged that in at least one instance in his lifetime he witnessed the legal system addressing a matter of some significance, in the case of the Scopes trial.  I think he would say that at least one lawyer came out of that looking well, Clarence Darrow, but that others did not.  All of the others.  Perhaps he even felt that Darrow would be remembered.  He is, but it's hard to say for how long he will be, or what Mencken would have thought would be an appropriate period.  I'm certain, however, that he'd be horrified to learn that even today some insist that religion be taught in school in our Great Republic, or "creationism" at least.  No doubt he'd consider this to be verification of his opinion that "[d]emocracy is a pathetic belief in the collective wisdom of individual ignorance."

Intellectuals seem always to be contemptuous of, or at best indifferent to, the mundane.  Perhaps this is why they so often fail to understand or hold the interest of most people.  They underestimate, should they even consider, the role the mundane inevitably plays in shaping our desires and concerns and in establishing what is important to most of us.  This renders them significant and persuasive only to a few, a relatively small group of individuals much like themselves.  Especially in democracies, therefore, they have little influence outside of academia, and are even looked upon as foolish.  Even in their thought they seem to discount ordinary life and so construct theories disconnected from it--castles in the air.

We lawyers do indeed deal in the mundane, as that is what the law concerns.  It relates exclusively to how we live our lives and how others do.  But it seems to me that this doesn't render it uninteresting or insignificant.  For good or ill, it's probably the most significant institution or system devised by humans.  It's all-important, and increasingly regulates our conduct if not our thoughts. 

It's like that most annoying "external world" some philosophers claim we cannot know.  We had better take it into account nonetheless, and pay it careful attention.  We ignore it at our peril.

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