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 seeked to learn in order to teach and advocate for societies of others – certainty. As school children, we learn logic as 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 certain sides of the debate. 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. Even then, my own experience with rule of law has been inextricably tied to other, stronger social forces, and it becomes difficult to discern where the real stability I feel, if it even exists, comes from.

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, that would be a start. But the infrastructure did not exist.

Reevaluation

So if our rule of law, as Holmes persuasively argues, is judgment based on relative worth and importance, how does that affect my goal to impart certainty? 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 actually influences our society rather than what appears to.

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 comes from 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. This is not a travesty, but it is an indication that lawyering will not be limited to manipulating the law. 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 has forced me into, and I am hopeful that the answers will come.