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Law in Contemporary Society
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[Empty Title]-- By MohitGourisaria - 21 Feb 2010
This is not a spiel on how Tiger Wood’s “drifted away” from Buddhism. In fact, from the little I know, one cannot heal in counsel with the outside world. But that is not why I write today.
Each time I read a judge’s opinion, or try to make sense of some hallowed law review article, I feel that they are “empty.” This word cannot, for the present purposes, be understood with its Oxford Dictionary connotations. Thus, I shall do my best to expound its meaning through the lens of Buddhism. I do not propose that we interpret law using "Buddhist" principles of construction – such limitation of mental exercise should be, on the contrary, eschewed. Instead, by understanding (and treating) the law as a Buddhist would, we may further social and human progress while freeing ourselves from the suffering and the anxiety that law can bring.
Law – a Channel for Freedom, Not Human Suffering
The study of law – just like the study of the Bible or the Quran – should lead to freedom. The texts of law are comparable to the dharma (teachings) of the Buddha. The only difference is that the Buddha, being wholly bereft of ego, was able to admit that the dharma fades away once one has begun to comprehend the conditionality of human suffering and has started on a path to perfection and freedom – the ultimate truth. The institutions of law on the other hand, obtaining validity through the manifestation of their egos, espouse a hallowed notion of the law. We are labeled at every step – public interest, international private sector, 1L/2L/3L, unemployed, utilitarian, and the list goes on. This serves two purposes: first, it enables the higher powers to package us in convenient boxes so that our fates may be easily determined, rewards conveniently distributed, and statistics favourably reported; and second, it leads to our suffering, which, as Arnold hints, is imperative for our manipulation.
Why then do we indulge in (and even propagate) our own suffering? I do not know.
But the first step to freedom is the recognition that we are in shackles. Frustration, disenchantment, and sorrow – which emerge after we cease to be ignorant – must lead the way. Then, there comes the belief, through knowledge and self-awareness, in a path that leads to freedom from suffering. I do not speak of faith in an omnipotent saviour or in magical healing. This is a “simple” realisation that does not require reliance on any God or scripture, but rather a self-sought discovery of a personal path that will not follow an established doctrine (legal or not), which attempts to inflate our sense of entitlement and ego. And finally, there is the journey on the discovered path which emancipates us through the letting go of our delusions, our ego, and our labels.
The Law is Just a Boat that Carries us to, but is not in itself, our Destination
Q1. Why did we take simple, grade-enhancing political science courses in college? Q2. Why did we spend several valuable weeks (or months) studying for the LSATs? Q3. Why did we obsessively refresh our status-checkers while awaiting decisions?
Because we wanted to become lawyers.
Once the Columbia acceptance came through, the journey was complete – an Ivy-League legal education with guaranteed lifelong luxury. Given the economy, the finish line has been stretched to the end of EIP (or maybe even 2L summer when the offers are finalised), but the idea remains the same.
A legal education is seen as an end, and much is made of the three years we spend in law school. Law school is merely an opportunity – a boat that bears us in a transient journey from one shore to another – that has no utility beyond what it confers upon us – access to a farther shore.
We are not in law school. We are in life. [Professor Moglen] And law school happens to be a part of it for some of us. Once we have seen the larger truth, which may be impossible given our egos and entitlements, the law school phenomenon will become insignificant. Once this has become insignificant, there will be no need to incessantly refresh the webpage containing our grades, or to measure our self-worth in terms of numbers or percentiles.
The Illusion of a Constitution (with its Articles and Amendments)
The Constitution is meaningless, until, of course, the omniscient Justices have spoken. Once they do opine, lo and behold, the Constitution is given its “true” meaning.
Language, no matter how well-written, is ambiguous. Intent, where there was any, is almost impossible to determine. We have half-a-dozen principles of constitutional construction, which conflict more often that they agree. There should be no shame in admitting to the fallacy of the Constitution – it is not an unconditional thing.
It is important to not lose our way when dealing with humbug labels such as federalism, state sovereignty, plenary power, and so on. The particular words are not important. Yet considerable time is spent analyzing each comma, each period, as though the Framers (as read by the interpreters) wrote in one unified, perfect style. I do not know what the Framers had in mind. But I am certain they did imagine future scholars would spend lifetimes debating over words (that will remain ambiguous no matter how often one imposes one's interpretation upon them) rather than utilising the Constitution, with its shortcomings, to achieve a better Union.
Conclusion
Do not be lost in trying to grasp the “true” meaning of the lines above, for my words are empty. The law, with its legalese and complex taxonomy, is similarly empty. Its worthiness lies in the effect it has upon our conscience and our actions. Where that effect is an amplification of the ego and the enlargement of our suffering, a path of freedom must be found. There is no universal path and thus we must understand all that we know (from Shakespeare and Coke to Holmes and Orwell) in a manner such that is a mere means to our freedom, and the knowledge of which is not, in itself, the purpose and the hope of our present, fortunate existence.
“‘These children, this money is mine.’ The fool torments himself with such thoughts. One does not possess even a self of one’s own, how then children or money?”
– Dhammapada (Verse 62)
Nona's comments after an initial read through:
1. I was unable to really understand what you meant by "empty." The way I understood it, you are trying to say that it isn't the actual words or texts or decisions that matter, and that adherence to doctrine keeps us in shackles (and that this is the opposite of what Buddhism purports?). Freedom comes from when we can separate ourselves from doctrine and not get too bogged down in the details...how can we apply this to a practical legal end? How do you envision that this would work in the real world?
2. I saw that the shackle/freedom discussion took you in two directions: legal practice v. legal education. Maybe you could focus on one or the other because as I was reading, it was hard for me to know if I should be applying your Dharma metaphor to a SCOTUS decision, or to the problem of grades/curves you speak to or to both and how since they seem slightly different in the long run.
3. I don't know much about Buddhism, so maybe from the outset you could be more clear about the connection you are making. Are you saying legal education and/or legal practice needs to borrow more from the Buddhist notion of letting teachings "fade away?"
4. You say that your own words are just as empty as the Constitution's, but that "Its worthiness lies in the effect it has upon our conscience and our actions." The words have to have some meaning if they are going to operate on our behavior, thoughts, and actions. Maybe you can flesh out what you mean by empty words that still have an operational effect. I think I am probably misunderstanding your version of empty and how it relates to Buddhism which takes me back to #3.
5. I hope this was helpful in some way as you continue to write.
Devin's comments:
Mohit, I think you've asked some very interesting questions. Here's some questions you might want to consider as you work.
With respect to this line:
The study of law – just like the study of the Bible or the Quran – is designed to lead to freedom.
As a reader, the argument that the study of the law has been designed for a purposes raise the question of who the designer was. It seems that, from our class discussions, one can identify a number of different approaches to the study of the law which may intend and produce varying effects with respect to freedom. The conventional "curve and canning" approach may inhibit freedom. If I understand your argument correctly, it may be helpful to open by arguing that the study of law should be about freedom. You could cite some of the Buddhist insights about psychology that you mention to support this view, and it would set up your critique of the "shackles" of law school and practice later in the piece.
I think it may also be helpful to flesh out further the point you would like the reader to take away from analogy of the study of the law to the study of the Bible or Quran. Again, if I am anticipating your argument correctly, I think the analogy would be that they represent the study of texts that provide a set of analytical categories with which to interpret the world. But I'm not entirely certain that this is your message, and I think some elaboration here would be helpful.
-- DevinMcDougall - 22 Feb 2010
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