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 theyParliament 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.

This is a very abstract paragraph. Only a highly-motivated reader, or one who is very familiar with the ideas being expressed, will follow you through that length without some concrete example to provide a base for your formulations.

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,

I see no sign that this supposed seeming blasphemous is indeed how it seems to everyone. Consider, for example, the speech by Thurgood Marshall on the bicentennial of the United States Constitution, pointing out the racist and inhuman immorality of the original Constitution and the absence of any guarantee that the document will ever cease to countenance injustice. Although I had some particular reasons for following with care the public reception of those remarks, which were certainly extensive and prominent, my observation led me to a slightly different conclusion. It seemed to me that a few people confirmed the argument that there was an inherent relationship between white supremacy and the insistence on veneration of an unchanging US Constitution; another, much larger, minority of people felt it was a legitimate opinion with which they couldn't bring themselves to agree because it seemed somehow unpatriotic; and the vast majority thought it was obviously true, however pessimistic, and that it was somehow Thurgood Marshall's constitutional responsibility to have said what he did. Which was pretty much how it seemed to me. That in the long run it didn't seem blasphemy is shown by the fact that it's now included in all the collections of American historical speeches for young people, and is as much a monument of American history as Abraham Lincoln on the house divided.

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.

The conclusion does not follow. Even if the premises were tight, the hole between the premises and the conclusion is exactly the size and shape of Thurman Arnold's conceptions. All organized society must be held together precisely by contradictory creeds, and what you are calling "nothing more than a veil," is actually the spider's web, lighter than silk and tougher than steel, that holds all human social institutions together. Observing that it is made out of neither logic nor morality is necessary in order to begin understanding the social fabric enough to transform it, says Arnold, in response to precisely the insight that you claim ineluctably leads to the resolve to rip it up.

Of course, the premises aren't tight. As I've explained above, I don't think the constitutional culture of the US is correctly represented here, on both empirical and theoretical grounds. Experience persuades me as I've described. From a theoretical perspective, I agree with Arnold both that the institutional life of every organization is made of symbolic content that is not addressed to rational choice-making behavior, and also that being aware of the non-rational basis of organizations is much easier for ordinary working people than for privileged law school graduates who have mostly been trained to justify what is, in the mode you describe. The governed by and large acquiesce precisely because revolution is so undesirable, and is so pointless when every revolutionary regime must in the end resort to creeds that are no more morally consistent than those of the organizations it replaces.

Lawyering Towards Social Justice

A lawyer should not seek to uphold the constitution.

Somewhat problematic, because every lawyer here swears to uphold it. Is every lawyer to begin by swearing falsely?

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.

My impression, after I let the sense of faintness brought on by the purple prose wear off, is that a false conflict is here asserted between upholding the Constitution and advocating sufficient social change to enable the provision of justice. I see no reason to believe they're inconsistent, until you show that there is something about the existence of the Constitution, which is after all capable of infinite amendment, that prevents the achievement of justice. This you cannot have by assumption and must demonstrate.

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.

Unless "social revolution" has come to mean something you can do at a tea party, this sounds like a recipe for constant suffering. It's a drawback, not a boast, for a scheme of social improvement—no matter how comprehensive or how beneficial—that it requires massive suffering for the poor. Almost every revolutionary disruption, no matter how redistributive, ends in the suffering of the most vulnerable, who are the poor.

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.

This appears to exclude a priori all schemes for the appropriation of power structures, or their modification, through the exploitation of unintended consequences. I discuss social strategies of this kind with co-authors Karl Marx and Friedrich Engels in The dotCommunist Manifesto.