The Lawyer's Craft

-- By AjaySaini - 26 Feb 2010

Introduction

While working in India, I came to the belief that the needs of every Indian could be met by legislation already enacted, and that the fundamental reason for the failure to live up to the standards they Parliament had set for the nation was a chronic lack of accountability. In other words, those executing the laws were not being held responsible for their corruption and inaction. There is an obvious air of colonial pretension in the argument, but its chauvinism and literal inaccuracy is not what I want to discuss in this essay. Instead, I want to focus on a flaw in its fundamental assumption. Implicit in the statement above is the idea that the political framework itself is satisfactory to bring about change and that individual justice and social revolution can be generated within that system. It is my contention that that same attitude underlies much of the general American complacency to injustice, a particular example of which is the exaggerated deference to the U.S. Constitution. As current and future lawyers we must rethink our roles and duties to the general public in light of revelations such as these if we ever hope to be agents of social justice.

Laws and Social Paralysis

The legal system is a fundamental instrument of those in power to discourage non-conformity and maintain the social hierarchy. It provides hazy lines between what is acceptable and what is unacceptable behavior in a given society and forbids the latter through the violence and force of the state. In conjunction with other significant social factors, of which the legal system is not wholly independent, such as access to social services and numerous culturally imposed disadvantages, laws become quite literally restrictive. They confine individuals, chosen typically by identity with a particular group on the margins of power, to not only social immobility, but to basic social dysfunction. The power-enabling American legal system justifies this suffocation in moralistic terms and narratives, which serve to encourage faith in the perceived “goodness” of the system, and stimulate legitimacy in the dominance of the powerful. Nowhere is this hegemony by consent more apparent than in perceptions of the U.S. Constitution.

Founding Fathers and Constitutional Moments

Constitutional interpretation is extremely controversial, but what seems common to all sides of the argument is an enduring faith in the moral force of the document, whether found in the wisdom of its words as originally composed or in its principles as evolved over the course of time. Congress, the President and most importantly the Judiciary derive their popular moral authority and legitimacy to the extent that they are seen operating within and furthering the principles of the constitution. It seems blasphemy to suggest that the document carries no such pervasive moral glue that legitimizes and binds together American institutions and “founding” principles, but once we can move past the idea of the document as sacred, and past the unhealthy worship of a generation far removed from contemporary life and problems, the idea of some inherent moral quality loses its vitality. We start to see the narratives of “founding”, “evolution” and “constitutional moments” as part of a larger national myth meant to inspire conformity to national ideals determined by the dominant class of power monopolizing interests. It is apparent to all but the voluntarily blind that the moral legitimacy of the constitution is nothing more than a veil, and the deference and respect we are to show is nothing more than our complacency in the existing power structure. A system that seeks both social justice for contemporary problems and the alleviation of oppression for the marginalized cannot operate within the framework of the constitution. Such system must be sought through radical change and revolution.

Lawyering Towards Social Justice

A lawyer should not seek to uphold the constitution. Given the benefit of training in the law, lawyers are those with intimate knowledge of the superficial quality of the constitutional moral legitimacy, and of the oppressiveness of the legal system as a whole. As a result she is in the best position to undermine the asphyxiating hand of the power structure on the crowded margins of society. When both those being oppressed and those watching the oppression, believe that it is in the best interests of all involved, it becomes the lawyer’s duty to point out that what is happening now will not change, and has not changed, that it is, in fact, only in the best interests of a few, and that such injustice need not be accepted as necessarily part of life. The stories that convince most to surrender to the idea of inherent moral legitimacy in the constitution are powerful, and lawyers must work to undermine those beliefs, and awaken the public to the possibilities of social justice through revolution.

Conclusion

Domination by a particular power structure and the consequent restraint of the marginalized through the aegis of the law is not a pattern unique to the U.S. The same oppression exists across the globe, and even after the incidence of revolution the structure will certainly reappears. The prescription is not acceptance and ignorance as we have currently adopted, rather it is constant social revolution. We must spend generation after generation unsettled and in flux. Injustice will always exist given the inherent limitations of humanity, but to draw from this the conclusion that that inevitability makes any endeavor pointless is a self-damning response. What we need in the face of constant injustice is constant endeavor. Every constitution must be undermined, every law stretched, every narrative debunked, and every power structure dismantled as we, as lawyers seek social justice on the margins.

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