I'm an admirer of Patrick O'Brian's great series of historical novels set during the time of the Napoleonic wars, featuring as their heroes Captain Jack Aubrey and Dr. Stephen Maturin, members of the Royal Navy. One of the novels caused me some pain when I read it, due to its depiction of lawyers, judges and the law. Fans will know I refer to The Reverse of the Medal, in which Aubrey is treated very poorly by the legal system of the time due to the machinations of his various enemies. I refer specifically to that portion of the novel in which the sophisticated Maturin tries to convince his not very sophisticated friend that he should not expect a just outcome, given the nature of the system and those who are a part of it.
Readers, if not fans, of this blog know that I'm a lawyer and have been one for a long time. It's not easy for even a jaded practitioner like me to watch, as it were, as the beloved characters in a beloved series of novels by a beloved author excoriate the profession in which I've labored for most of my life. I don't think an author necessarily believes what his/her characters seem to believe or say they believe, even when those beliefs are stated so definitively, but can't help but feel a bit downcast when I read, and sadly re-read, that passage of the book.
Lawyers and judges are condemned by Maturin for being devoted to the law uber alles, so to speak. Edward Gibbon is cited as someone who shares this view, and a anecdote involving the great historian is also cited. Gibbon supposedly challenged a lawyer to acknowledge his client was guilty, only to be told by the lawyer that he could not know whether that was the case until the judge determined his client's guilt. Gibbon thought this to be a "miserable" example of sophistry, or used words to that effect. As I interpret the passage, it criticizes lawyers as disregarding justice and morality, and substituting the law in their place. Thus lawyers do not care about what is right or what is wrong, and do not strive to achieve what is right instead of what is wrong.
It strikes me, however, that it is Gibbon and others who think like him who make a fundamental error in judgment, not lawyers. Lawyers understand that the law is not what is just, or right, or moral. Those who criticize the law for being unjust don't understand what the law is, and foolishly--naively--believe that it is what it is not. But, nonetheless, the law is the law.
To address Gibbon's example: "Guilt" in the law is not necessarily "guilt" as commonly understood. In the American system, someone is guilty of a crime if that guilt is established beyond a reasonable doubt. It happens that those who commit a crime sometimes can't or aren't shown to be guilty of that crime because, for various reasons, proof beyond a reasonable doubt isn't shown, or the jury believes it hasn't been established. So it's quite correct to say that one doesn't know whether a defendant is guilty in the law until found to be guilty, even if it's true that they did something wrong and committed a crime.
Happily, I don't practice criminal law. I don't doubt, though, that defense attorneys sometimes know that their clients committed a crime. Because a lawyer would know that it's quite possible that someone who commits a crime may be acquitted (even if the glove does fit) a lawyer may decline to represent a defendant because he/she feels it would be wrong to do so. Or they may choose to do so regardless because in our system all are entitled to a defense, and to be treated as innocent until proven guilty.
That, good or bad, is the law. One might say that the law is what it is for good, sound policy reasons; that it is preferable that such a strong burden of proof is imposed on the state so that it is difficult to prove someone committed a crime even when they did, as the innocent are thereby protected. One might say otherwise. Then one is making a judgment about the law, whether it is good or bad. But one isn't saying that the law defines what is good or bad, or should do so. That's a critical error.
I think one of the first duties of a lawyer who litigates, who represents a client in the court system, is to explain to a client that what is just, what is right, may result but need not result in a courtroom. O. W. Holmes is said to have spoken these words to a young lawyer who appeared before him in court: "This is a court of law, young man, not a court of justice." The judge could not have given sounder advise to a novice lawyer.
The law is a vast system developed over time to regulate our affairs. It may sometimes be consistent with morality, it may sometimes be perverted by it or by a particular view of it, as in the case of Prohibition. But it's not intended to be a system of morality, and we don't respect it for being such a system. We respect it because it's the law, and it would be foolish to ignore it.
Lawyers and judges are a part of the system. They know how it works. They fulfill a particular purpose, and have a particular function. They may perform that function well or poorly, they may practice morally or may not. They may be condemned for being immoral, certainly, but only those who confuse morality and the law will maintain that they act immorally by practicing law, and should not do so unless they wish to claim that the entire system of law is immoral, and are prepared to defend that claim.
I suspect that most won't make that claim, or if they make it won't be able to defend it.
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