Reflections on Certainty and Stability

-- By SherieGertler - 16 Feb 2012

Preconceptions, In Light of Holmes

I am fairly confident, at this point, that I came to law school for the wrong reason. My wrong reason is unlike most peoples’ wrong reason for coming to law school, wherein they were feeling lost and looking for a stable career track that could assuredly lead to a paying, stable position. Whether or not they too have a rude awakening coming, I can’t say. I, alternately, was working in international development and felt very passionately about increasing global access to education, healthcare, and human rights protections. I am not looking for stability, and I know that high-paying positions are not in my future, but I did think that at law school, I could learn about the infrastructure and protection created by the rule of law in order to better apply that to developing nations rebuilding. What I have seen of our rule of law, however, is smoke and mirrors, and rhetoric.

Justice Oliver Wendell Holmes, in The Path of the Law, points out that “certainty generally is illusion, and repose is not the destiny of man.” In one fell swoop, Holmes demolishes the essence of what I was looking to learn in order to teach and advocate for societies of others – certainty. As school children, we learn logic to be constructed of hard and fast rules, one step leads to another which leads to the one correct answer. Our experience with the law up until law school is limited, most likely, and cloaked in logic, leading us to believe that an education in law will carry much of the same. Holmes posits, however, that while the “language of logic” is used, what lies behind it is “judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment … and yet the very root and nerve of the whole proceeding.”

Whose judgment? And more importantly, how can we trust his or her judgment when it is made unconsciously and later rationalized by unrelated logical steps? A professor in my first semester of law school disclosed that while clerking for a Supreme Court Justice, she witnessed Justices instructing their clerks to formulate opinions in order to come out on a certain side of the decision. This is obviously backwards, and disturbed me greatly. I spoke to her later trying to push her to admit her mistake – this could not be how some of the most important judicial decisions are made and explained. Rather, the root issue should be examined, the combination of facts should lead to a logical conclusion, and then another, until the answer reveals itself. She smiled at my naiveté, and I smiled back, but inside I panicked.

I did not understand the importance of certainty until I lived in a fundamentally uncertain place – a refugee camp near the Congo border. People arrive at refugee camps after their worlds have been ravaged. Some people abandon their homes at the first rumblings of trouble, and some wait too long, later arriving at the camps with scars to show for it, and horror stories. None are enraged at the ‘injustice’ however, as there is no underlying expectation of justice in the first place. In my experience, the people in my refugee camp had been taught from young ages the lawlessness of their societies, and felt reluctant to rely on or expect the type of protection rule of law offers (or appears to offer) to those of us fortunate enough to grow up in the United States.

I wished the refugees had something to rely on, to trust, but there was nothing in the camp that could even serve as a foundation to build on. The United Nations personnel were corrupt and ineffective, and the 1951 Refugee Convention and updating Protocol of 1967 were meaningless in the place they were needed most. I was meaningless too. I thought that if the Convention was upheld, or if the UN staff abided by the UN Code of Conduct, or if the Zambian government followed through on its promises, that would be a start. But the infrastructure did not exist.

Reevaluation

So if our rule of law, as Holmes persuasively argues, are judgments based on relative worth and importance, how does that affect my goal to impart certainty? I believe Holmes was describing the system of law in Western societies, and the culmination (and continuing development) of law that has been happening for almost a thousand years. In entering law school, I sought to learn about how our system’s stability was created, in order to apply that to societies looking for stability now. That was misplaced. However, perhaps in recognizing the problems of our system – for example, as Holmes provides, the blind adoption of tradition – I can view the rebuilding of post-conflict societies as an opportunity for improvement upon current form. Holmes writes, “Still it is true that a body of law is more rational and more civilized when every rule it contains is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words.” By having a clearer picture of what needs to be accomplished post-conflict – right to life, right to food, equal protection of rights, equal participation in government – I may get more out of learning what went wrong in the development of American law than what went right.

I never thought our system was perfect, but I was mistaken in believing that our collective sense of security and justice in our everyday lives is attributable to our justice system. As Eben has pointed out, law is not the strongest form of social pressure, and likely not the sole paramount institution that can effect change. I am no longer clear on what I need to learn here, and whether or not Columbia professors can teach it to me, but I am grateful for the reflection Holmes forced me into, and I am hopeful that the answers will come.

We've talked about this before, of course, Sherie. I think this is a perfectly lucid summary of the intellectual, moral and political significance of the education you have wrested for yourself so far. I think you have captured the issues, the route you took to them, and the bearing at which you emerge from them with clarity and force.

I agree with your conclusion that "rule of law" is sometimes an illusion covering justice for the poor and kindness for the rich, and sometimes an immensely fragile outcome of social and economic development, not a precondition for it. But it appeals deeply to unconscious human needs even more important than the need for stability, and where it can be sustained it will be fiercely loved. The fraudulent version palmed off on the subjects of monarchies and denizens of aristocracies, plutocracies and other despotisms is not as enervating as the death of society, because law is a weak force, but it is weakly loved where it is not despised.

None of this matters when the stronger forces that hold society together have dissolved. De-atomizing individuals who have survived the breakdown of their societies is a profoundly difficult task, at the individual psychic level. Building temporary societies consisting of large numbers of such people, and doing so using temporary improvised infrastructure at the margins of other weak, corrupt societies is equivalently hard on an immensely broader scale. From a statistical point of view, it's impossible: each such effort will present another collection of impressive failures and heart-warming but infinitely rare successes. "Rule of law" is a tool extraordinarily fragile, complex, and dependent. It has nothing to do with the society being constructed. Yet unless it is part of the environment of the social orders doing the constructing, predation and indifference will inevitably damage, often irreversibly, the temporary society being built.

That's the problem. Where the receiving society can impose rule of law on the organizations doing social construction, activities will be maximally successful. Where it can't, minimally. Where the social construction companies merge with the state in the receiving society, as between the Jewish Agency and the Israeli Government after 1948, rule of law is weakened (catastrophically for those outside the system of social construction, as in the avalanche of land theft from Arabs within the State documented by Alexander Kedar in his extraordinary history of Israeli land law) but social construction is advanced.

When you return to law school, if that's what you decide to do, you will be returning with the knowledge that you know, again, why you're here. But truly, this time, based not on a false hope or an invented, supposedly infallible mechanism, but rather on an awareness that making things happen in society using words does not necessarily mean "working within the rule of law." That law is something often misunderstood in law school, where other very important matters can be usefully inquired into, learned about, and discussed.