Law in Contemporary Society

A Healthy Distrust

The protection of our rights through judicial channels depends on the idea that judges will self-check the influence that their political ideologies have on their judicial decision-making. However, this check is illusory; when we choose to believe in its efficacy we re-entrench our dependence on the state apparatus for protection. It takes lawyers who recognize this fact to create a counterbalance to the threat to our liberty that results from blind faith in judicial restraint. This is something we, as the future of the law, must keep in mind when we begin to mold our practices in the coming years.

Our understanding of the ideal of a court delivering a just verdict rests on the notion that the judge, instead of letting her political biases control the outcome of her ruling, reasons from principle. The just judge, so the argument goes, does not have an outcome in mind when she begins her reasoned path towards a ruling. The fact that one possible outcome is inconsistent with her personal political beliefs does not count against that outcome, for the just judge’s first principle is that her role is merely to enforce the law. Results-oriented judicial reasoning, on the other hand, is, on this view, the antithesis of justice. Any hint that one’s personal beliefs about what “should” be the outcome of the trial influence one’s decision-making evokes criticisms that one is “legislating from the bench,” which serves as incontrovertible evidence of one’s incompetence.

This is of course an unattainable ideal, as the character Celia Day notes in Lawrence Joseph’s “All Great Problems Come from the Streets.” When asked if interpreting the law involves personal and even political judgments, the fictional Federal Judge responds, “Of course it does. So what? You control it, that’s all. Our commission is to keep our personal predispositions under control.” So, in reality, a just judge does not entirely avoid inserting one’s personal beliefs into one’s decision-making, since this is impossible. Justice Holmes notes,” Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.” It is false, therefore, to think that judges render decisions without at least unstated reference to their own psychological attitudes towards the facts of a case and their preferred outcome.

One solution is that of Judge Day: for judges to acknowledge that subjective attitudes inform one’s decisions, but to limit their influence as best as one can. Day suggests that the reason why judges keep their personal beliefs under control is “by force of [their] commission.” It seems that what Day means is that judges feel an obligation to reason from principle rather than from opinion because they have been entrusted with the responsibility to do so. But this kind of check is purely intra-psychic in that it depends on the judge having an antecedent belief that divorcing their decision-making from their personal beliefs is something that they should do. Without a doubt there are many judges that self-check quite effectively. But what is clear to me and what anyone can discern from a perusal of recent Supreme Court opinions is that there are also many judges that do not, which is of special concern when what is it stake is freedom from incarceration or other fundamental rights.

When the only check against the power of judges to define (and as a corollary, to limit) what our rights are comes from the judges themselves, citizens are in a predicament. Put differently, we need something more. One option is to assuage one’s fears with self-reassurances that the structure of the United States government is such that the rights of American citizens are not subject to the personal whims of judges that are appointed by partisan politicians (“federalism,” “checks and balances,” “separation of powers,” “the appeals process”). This approach, however, while it might placate our fear,is inconsistent with what we know to be the case; additionally, such an approach only serves to re-entrench the control the state apparatus has over us by assigning to it our blind faith in the way that a child trusts her parents to not hurt her.

The other option is to develop protections -- for oneself and for those who cannot protect themselves -- that are independent of the state. This, in my mind, is the role of the lawyer, and is why I attend law school. Such a solution harkens to the Gandhian idea that “Swaraj” (self-rule) requires “Swadeshi” (self-reliance). This applies both on a macro scale, such that populations should not depend on the protection of a sovereign against oppression from that same sovereign, but also on a personal level in terms of the relation between an individual and the arbiters of her fate. I refuse to passively rest my freedom from statist violence on the shoulders of judges. Instead, I choose to arm myself with the law. Perhaps this is one take on the idea that what we gain from law school is not a job, but a license. The ability to practice law represents a power much larger than that of fiscal stability. It represents both a shield and a sword against oppression and violence.

It is in this sense that I will never be without clients, for my first and primary client is myself. However, not everyone has the privilege of attending law school, let alone one such as our own. This puts us in a position of special responsibility towards those that do not have the tools to protect themselves from the monopoly on violence possessed by the state, and as a result, its judges. Gandhi made clear that on his view, mutual assistance is essential to self-reliance. Sacrificing one’s license at the altar of capitalism is therefore not just self-mutilation but a loss for the community of people that would otherwise gain from our protection.


Webs Webs

r9 - 22 Jan 2013 - 20:10:46 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM