Law in Contemporary Society


-- By MingDing - 10 Mar 2017

What is a lawyer? Although the question seems idiotic for its overly broad (and futile, per Wittgenstein) metaphysical nature, one has to accept that it is necessary if we are to have a “theory of social action for lawyers”, probably prior to the question ‘what is law?’. One needs to know what a lawyer is in order to know why we need such a theory. Or, even better, if we need such a theory at all.

Carnap denies the meaningfulness of any ontological question without a specified “framework”. Although the dichotomy of being “internal” and “external” of a framework has been widely criticized in the philosophical literature, some merit seems to remain in other realms. If anything, theories and hypotheses rejected in their own fields usually have remained influence in others (e.g. Freud’s psychoanalysis and its application in art history). “Step back and look at the big picture.” So do people say. Step back from what? I reckon from the “thing” one’s in. Hence people, at least intuitively, accept that being outside offers some insight. It follows that being an outsider would be sufficient, though probably not necessary, to qualify one to begin answering the question ‘what is a lawyer?’.

I am an outsider. Risking speaking for others, I guess that many of my fellow international students would say so as well. Few of them might even share with me the feeling of being an outsider regarding everywhere. A paradoxically simultaneous feeling of isolation and inclusion seems to be a common theme for people who have been educated and immersed in drastically different sets of ideologies. But that’s a topic for another day.

The very realization of this intertwinement says something about me. I am sentimental. Probably too sentimental for a lawyer; or so I was told. I was labeled an outsider before I set foot in law school. My college advisor--a now-rare full-time logician--was kind enough to have his friend, a law school professor to edit my personal statement. “Lawyers are not the most thoughtful and sensitive people, as much as the most energetic, charismatic and productive.” (Emphasis added). That was the advice I received. Lawyers are not the most thoughtful and sensitive people. Maybe it’s time for me to “split”.

After I actually attended law school, however, the above statement has been defied. People talk about lawyering for change all the time: fighting for women’s and LGBTQ rights, protecting the environment through legal means, resisting the newly elected President of the United States. Don’t get me wrong. I wholeheartedly support these campaigns. The thing is, these are not what I signed up for. I remembered the advice I was given. I was ready to become “energetic, charismatic and productive”. But law school has been the pinnacle of thoughtfulness I have witnessed.

To make it clear, such thoughtfulness came no less surprising to me than the denial to my sentiments. I came into law school thinking the legal profession is all about craftsmanship. It is something one learns by practice and exercises to make practical things. It is, I thought, essentially not different from, say, a carpenter or an architect. It is about getting the job done. Did I dream about making social changes being part of the job? Well, I do realize that there are lawyers who do that, whom I admire; I don’t, however, understand the legal profession being all about that. A carpenter can craft a piece of furniture to reflect certain aesthetic revolution, an architect can design a building to raise social awareness, but that doesn’t mean they are all about making those impacts.

“Why, my friend.” a reader might ask, “What do you know about lawyers?” And she would be correct. I am a total outsider to law. Carnap says that the real meaningful ontological questions can only be asked outside of a framework. A wise outsider would consult a dictionary. A lawyer is “one whose profession is to conduct lawsuits for clients or to advise as to legal rights and obligations in other matters”, says Merriam-Webster. Maybe I wasn’t so ignorant all along, since nothing about social changes is mentioned.

Carnap also admits that a same question, if asked within a framework, yields a different answer. ‘Lawyer’ has a special meaning in America. Professor Bobbitt once said in my class, “lawyers are the last aristocrats in our society”. That says it all. The legislature, the judiciary, the presidents and the Founding Fathers are all dominated by lawyers. The country was built by lawyers. But that is a foreign concept in many other parts of the world, and the profession suffers a split. People who merely does law and people who use law to change the society almost occupy two distinct professions, but they are all called ‘lawyers’.

I was not born to aristocracy; I am an outsider. The sin is to study law, and the punishment is being locked up in a prison of aristocracy. “Oh you are a lawyer. Damn you not changing the world and fight for justice.” If the special burden on ‘lawyers’ in this country is due to historical and cultural roots, it seem appropriate to forfeit the undue burden, especially in places where mundane tasks that happen to involve this thing called “law” take place.

Half of this essay is ulterior, an attempt to wrestle with my own identity crisis of whom I might become. The other half is a prayer of forgiveness. The profession of law in America has its holy place; the superficial means of living, on which I wish to rely, happens to parasitically share the same holy name, ‘lawyer’. For this I hope be pardoned. Less wise and conscious people like me are blamed for numbness to circumstances. That I accept. But to be blamed more harshly because of the unfortunate coincidence in what one’s occupation is called seems unfair. Maybe that’s why Wylie does not like talking about his practice.

This is a very interesting and—of course—thoughtful essay. It's true that the emphasis on lawyers as makers of social change is culturally distinctive here. That results in part from the surrounding context, the social ideology of American constitutional democracy, but also in part from the adoption of legal realism, from an idea inside. If legal phenomena are what they do, not what they are called or their logical interrelations, then an emphasis on doing, which is in its nature a commitment to results, becomes what "productive" means. Energy and charisma then have their goal in the production of social results.

It's the theory of value of results, the ranking of consequences, which is then the actual subject of your "ulterior" contemplation. Architecture conducted as an art for art's sake risks becoming tyranny: the built environment must be lived in by people; their relationship to it cannot be based ethically on the aesthetic preferences of the architect alone. Legal activity reflects the presence or absence of justice, it does not constitute justice any more than it constitutes morality, which it may also exemplify. Neither the architect nor the lawyer is therefore justified solely in being paid to pursue her craft, while that will of course seem most days to be the most important part of that craft.

But "blame" is a category error in this culture with respect to such questions. Blaming is easy, so people do it, but thoughtfulness with respect to fundamental choices is a commitment we make when we choose freedom: our choices matter, when we are really free to make them, so interrogating how and why we make them, rather than subsisting in a mere oscillation between praise and blame, is both necessary and possible.

Much could be said about Philip Bobbitt's comment about aristocracy. You have taken it, generously, at its least offensive and most analytic value. But I'm not sure that we shouldn't consider also some more "blameworthy" meanings it might have.

I don't think there's much to do to improve this draft, because it is very good as it stands. But as I have indicated, I think the note of defensiveness, or that of needing absolution, can safely be dropped. Your inclusion is more deep, in that sense, than you realize: you are a free person here, and you need no forgiveness whatever you choose to believe, or to be.

Work Cited -Carnap, Rudolf: Empiricism, Semantics, and Ontology


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r2 - 07 May 2017 - 14:20:39 - EbenMoglen
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