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Disclaimer: Not finished yet. | | | Introduction- “The Circles of Deceit”
"Whether he be original or plagiarist, man is the novelist of himself. … To be free means to be lacking in constitutive identity, not to have subscribed to a determined being, to be able to be other than what one was." José Ortega y Gasset | |
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> | In “All Great Problems Come From the Streets,” Judge Celia Day relates her friend’s description of lawyers as liars. She goes on to discuss two types of lying: misrepresentation of thoughts and misrepresentation of fact.
Though she doesn’t discuss it explicitly, she also implies that there is a third type of lying—the lie that is misrepresentation of self.
Why she believes misrepresentation of fact is so much worse than other types of lying speaks to the heart of the question she leaves the reader with: why the law is what it is. | | | "Dress as an Expression of the Pecuniary Culture," or How Lawyers Lie with Clothing | |
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< | The phenotype in “All Great Problems Come From the Streets” is defined as “how an organism appears…a result of the interaction between the organisms genetic structure and its environment.”
Leaving questions of sociobiology aside, humans have the ability to define, more or less, their own phenotypes, within the
So, then, if the lawyer’s phenotype is a liar, why is this? And how does it manifest itself?
The idea of a phenotype is of course itself a type of lie—Day seems to subscribe to it while simultaneously rejecting it. She is consciously proud that she fits a different phenotype than one would expect (describing herself as having the appearance of a banker); she also recognizes that, at least in Family Court, there are lawyers who wear jeans and chew gum—perhaps even lawyers who fit the phenotype of the girl on the subway. | >
> | “Phenotype” in the essay is defined as “how an organism appears…a result of the interaction between the organism’s genetic structure and its environment.” Judge Day and her doctor friend use this scientific term to describe the most easily discernable result of this interaction: appearance.
Leaving questions of sociobiology aside, humans have the ability to define, more or less, their own phenotypes, within the confines of societal expectation and their own abilities.
The idea of a profession manifesting itself in a set phenotype is of course a generalization—Day seems to subscribe to it while simultaneously rejecting it. She is consciously proud that she fits a different phenotype than one would expect; she also recognizes that, at least in Family Court, there are lawyers who wear jeans and chew gum. | | | But this does not fit into her conception of the world, and she quickly retreats into stereotype. | |
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< | The stereotype of a lawyer is one Veblen would recognize: the conspicuous (but not flashy) consumption, the briefcase which is “the kind you really can’t put very much into.” A lawyer lies to the world about the amount of work he does (consciously emulating the “leisure class” of yore) while also, perhaps, lying to himself about his role in the world.
The conscious adoption of a phenotype recognized by the world-at-large is, then, a self-perpetuating lie. As Veblen puts it, "in the common run of cases the conscious motive of the wearer or purchaser of conspicuously wasteful apparel is the need of conforming to established usage, and of living up to the accredited standard of taste and reputability." The lawyer, then, chooses the phenotype he projects in order to be perceived as the person he wishes to become and in so doing changes the way he interacts with the world. | >
> | The stereotype of a lawyer is one Veblen would recognize: the conspicuous (but not flashy) consumption, the briefcase which “you really can’t put very much into” (good for projecting the appearance of leisure).
The conscious adoption of a phenotype recognized by the world-at-large is, then, a self-perpetuating lie.
If a judge’s task is, as Day asserts, to discern, then it is a lawyer’s task to project the image he wishes the judge to perceive. | | | “What goes on in people’s minds,” or double-talk, triple-talk, what can you do? | |
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< | In international law, what you say can trump what you do. That is to say, international laws are derived from custom (what countries are doing) and belief (whether those countries believe they are following custom out of legal obligation). If a country says it is following a law, even though in practice it is not, the law will stand because the belief trumps the practice.
Or, rather, the avowal of belief trumps the practice, although it may be inferable from the practice that the country does not really believe what it is saying.
Day sees this as the way lawyers operate generally. She relates a story told to her by a friend, and concludes with the caveat that “he sounds so sincere—the way he looks and talks— and he is, but sometimes you don’t know when he’s kidding you” (italics mine). In Day’s conception of the world, a lawyer can be both sincere and a liar simultaneously, no conciliation necessary. | >
> | Phenotype in the essay is not just, or even primarily, about clothing. It is also about thoughts and projection. Day says of the young lawyer on the subway that “phenotype was written all over him! Relaxed and assured, yet at the same time that look of lust and abandon.” Lawyers must project an appearance of confidence with their attitudes and speech, not just their clothing, regardless of how they feel.
This is why Day is so resigned when she describes “spin;” she sees this as the way lawyers operate generally. In the legal world, often, the avowal of intent or belief trumps what may be inferable (but never provable) from conduct. She relates a story told to her by a friend, and concludes with the caveat that “he sounds so sincere—the way he looks and talks—and he is, but sometimes you don’t know when he’s kidding you” (italics mine). In Day’s conception of the world, a lawyer can be both sincere and a liar simultaneously, no conciliation necessary. | | | Relying on representations, or why Day will get you if you say you did something when you didn’t
So lawyers can lie with their clothing, and can lie with their thoughts, but Day asserts that lying with actions is taboo, that is: “You make a material misrepresentation of fact to another lawyer, you’d better be prepared to be hit, and hit hard.”
Day goes on to define this kind of lying as a betrayal, saying “what you’re really doing is not providing information to a person who trusts you to do so.” The difference between lying about what you did and lying about what you think is that one is provable, while the other is spin. Morally they may well be equal, but in the realm of the law custom dictates that one is allowable, and even encouraged, while the other is punishable by consensus. | |
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< | Cerriere says “mop and pail are mop and pail,” and indeed, they are tangible items with which to enact change in the world (while getting paid). What is the tangible for a lawyer? If the world is defined by double talk (and here perhaps lies Day’s distinction between types of lies) then what tangible reality do Cerriere and Tharaud have outside of their arguments? It is all right to lie about what you feel but not what you’ve done, simply because words, in the law, are more important than actions—ideas are what they do, not what they mean. Cerriere might say he hates ideas, but perhaps that is where Tharaud is simply a better lawyer, for what is the power of the law if not the power of ideas? | >
> | Cerriere says “mop and pail are mop and pail,” and indeed, they are tangible items with which to enact change in the world. What is tangible for a lawyer?
According to Day, it is trust. A lawyer should not lie about that which can be proven (about deeds, that is, rather than thoughts) because in that way he or she compromises the currency of the law: the appearance of truth.
It is all right to lie about what you feel but not what you’ve done, simply because words, in the law, are more important than actions—ideas are what they do, not what they mean. | | | “The question ought to be why. Why the law is what it is.”
The law, Day implies, is what it is because it is made by people who lack real power. Day believes that “real power exists outside the courts…you have discretion in this job…there’s a big difference between having a bit of discretion and having real power. it is a very important distinction.” The law is shaped by lawyers, whose only real objective power is their ability to sway the judge (in the courtroom, at least; one could argue that the greater power of many lawyers is their ability to shape settlements and other bargains outside of a courtroom setting) and judges, whose power is, according to Judge Day, interpreting and discerning. | |
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< | Tharaud vs Cerriere
In this analysis, Thauraud and Cerriere’s argument makes sense as their attempt to imbue more meaning into their daily activities.
They are, in Day’s analysis, engaging in the “posturing, the playacting, arguing over the smallest things, the narcissim, the beyond-belief egomania” that all part of the lying that goes along with “knowing too much.” | | | The truth of the record
The point of the phenotype discussion is simply this: lawyers have much less power than they would like others to believe they do. They lie, then, with clothes, with words, and with actions, in order to preserve their own sense of self-worth.
And what is the truth? For Judge Day the suggestion of what truth might be comes in her last story. An abused woman sits beside the husband she tried to kill.
Her astonishment is not just that the husband sits beside the wife he has abused and who has tried to kill him but that he does not challenge the record, does not try to create his own truth, instead simply sits and waits—a cardinal sin for those whose business it is to spin webs of deception. | |
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< | “Beautiful children. There are pictures of both of them. They are part of the record.” | | | | |
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< | “Man, in a word, has no nature; what he has is—history.” José Ortega y Gasset | | | |
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