Justice and the Law

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.  

"The Triumph of Barbarism and Religion"

These words appear in the final chapter of Edward Gibbon's The Decline and Fall of the Roman Empire.  Thus he characterizes what he's described in prior volumes in six words.  It seems a clear statement of his position, very incisive and succinct.  It's something of a pleasure to read such a bold pronouncement from a historian, as the historians of today seem hesitant to make judgments of any kind, victims perhaps of a what appears to be a growing culture of timid ambivalence in Academia.  Woe to those who are perceived as having come to a conclusion, especially regarding anything it is now customary to claim cannot be judged.  Which is a great many things.

 

It's no doubt inadvisable to come to such a definite conclusion regarding something as complicated as the Fall of Rome (though Gibbon is always a joy to read).  Also inadvisable to attribute the Fall to only two causes or factors.  Barbarians certainly came to rule territory formerly ruled by Roman Emperors, but they did so sometimes as at least nominally the functionaries of the Emperor of the Eastern Empire, which survived for may years after the year traditionally said to be the fall of the West, 476 C.E., or if not as rulers who perceived themselves and were perceived as successors to the Emperors, continuing the rule of Rome albeit in somewhat different ways.  The leaders of those  barbarians were usually high-ranking members of the Roman military, trained by Romans, familiar with Roman customs and civilization.

 

As late as the 9th century, Charlemagne, (a descendant of the barbarians known to the Romans as Franks) took up the mantle of Rome in the Latin West.  Rome's shadow falls over most of the history of the West, though.  The Holy Roman Empire which Voltaire said was neither holy, nor Roman, nor an empire, survived into modern times, and the Kaisers and the Czars owed their titles, at least, to the Caesars.

Religion in the form of Christianity certainly came to rule in a sense as well, in both West and East.  An intolerant religion which believes itself exclusive, possessing the truth and worshipping the One True God, by its nature seeks to rule the minds and conduct of all.  But it's difficult to maintain Christianity was a cause of the Fall of Rome, as the Christianized Roman Empire of the East continued to exist for roughly one thousand years after the year 476 C. E., although in a continuously diminished form.

 

What is taking place in our times, however, in the name of a religion and through the efforts of people who can justly be called barbarians, threatens a triumph of the kind Gibbon felt took place in the 5th century.  If Gibbon was right about the corrosive effect of barbarism and religion, combined, then perhaps his statement will be more true of our century than the centuries of which he wrote.

 

It's difficult to believe that there are heavily armed people who are intent on causing us, by force, to live and think as members of a particular religion did in the 7th century.  What reasonable person living in the 21st century would think that desirable, or even possible on a large scale?  Why return to the distant past?  But then, it isn't merely the time after the spread of Islam that these barbarians reject and want others to reject.  The time before the 7th century is also condemned by them.  Witness their destruction of the great remains of civilizations of the even more distant past.

 

Here we have the true fanatic at work.  Great efforts are being made to destroy the new barbarians or at least stop their progress.  Well and good, but one wonders, sometimes, whether some of those involved in the effort or their masters have come or will come to believe that it is necessary to fight fanaticism with fanaticism inspired by another, better, religion; or to employ irrational means to fight the irrational.

 

That would lead to a triumph of barbarism and religion of a different kind, resulting in a state somewhat more familiar to we of the West but I think equally deadly to Western civilization.