Law in Contemporary Society
Judge Day tells us that justice on the streets is getting what you deserve: “…all great problems come from the streets. Do you know what the definition of justice is on the streets? You get what you deserve (80). Oddly, this definition of justice is her description for the code amongst lawyers: “…a lawyer will get even…that’s how the system retributes itself. It really does. How do they say it on the street? – ‘what you do comes back on you’” (75). This seems to suggest that lawyers are just as unruly, lawless, and disillusioned as those on the streets that must resort to this type of justice to fight for their nearsighted and selfish vision of liberty (“Everyone with a different sense of when the law should protect our liberty. Always…at the expense of someone else’s” (80).)

Presumably the cause of all this is the law, which after all (perhaps even more than politicians), exerts power on people’s minds. It would certainly make sense that it is the law that has made lawyers what they are. Lawyers’ schooling in the law, their dissecting and discerning it, has made them liars, full of double and triple-talk and spin. Lawyers do not know what is real or true anymore because lawyers are not real people: “Real people know what the real truth is!” (73). It is the law itself, as it is currently formulated, that is creating the problem. This is exemplified the battered woman, sentencing case that Judge Day must preside over the next day. Nine years minimum is intuitively wrong given the years of abuse, but that is the law. The law is unintuitive, powerful, and ultimately dehumanizing – because of it no one knows the real truth (certainly not lawyers) and thus no one is a real person. Moreover, in the eyes of the law, people are not people. Like the battered woman’s children, “They’re part of the record” (84).

The current law is the problem. What is the solution? We do not know but perhaps the narrator will find out. This is point of the novel, of his stories of constantly wandering, following various legal professionals, listening to them but himself remaining quiet. Judge Day reports that “The people who aren’t talking are looking – and when you’re looking, you’re either listening or your mind is wandering – God how the mind wanders!” (71). We are wandering with the narrator, looking for an answer but at times hopefully also listening. We’re listening for the clues to why the law is the way it is. The solution is clearly not in the courts, which don’t make law but just enforce it. That is some place the solution is not. Where it is, we’ll have to look harder to find: “’Why is the law the way it is…if you look hard enough you’ll find what you’re looking for. He also said, don’t count on the courts” (78).

-- AlexWang - 03 Apr 2012

Alex, cheers - an interesting take. To building on your reading, a slightly different interpretation would be that Joseph considers the legal profession to reside at the the opposite periphery of the law's influence to the streets. Whereas those on the streets may revert to retributive ethics in response to disenfranchisement and social condemnation, lawyers conversely do so out due to overenfranchisement (i.e. Day's fantasies of suing the MTA while on the subway (66), her observation that "lawyers know too much" (73)) and insufficient social guidance (i.e. "lawyers are spooky because they have no idea what real people … think about them" (73)). From that viewpoint, I would venture the opposite conclusion (but similar in spirit) - the law isn't troubling for Day because it makes lawyers what they are. Rather, it is troubling because it fails to do so.

Day's cynicism towards the effectiveness of law and the courts as a medium for social change underscores the broader point that lawyers, judges and politicians are human phenotypes, shaped by the social institutions they interact with. The slicked hair, expensive suit and suspenders - all of it mirrors the values and norms of the society out of which those individuals emerge. What is the social reflection, then, of a legal system in which judges think like Day, and all lawyers are "liars"? Do we really want potentially life-or-death decisions to be made by computer-like umpires that apply bright-line rules? More importantly, does a system that actually or perceptually limits judicial discretion achieve greater justice than one that gives a more explicitly participatory role to judges in lawmaking? Maybe the warning "don't count on the courts" really means: "don't count on these courts," and foreshadows the prescient suggestion that the law we have might in fact be the law we deserve (80).

I see the true crux of the story revolving around the blurry differences between "lawyering," "judging," and "lawmaking." I was both intrigued and annoyed by Day's description of herself as a "lawyer with society for a client," since I liked it as a principled definition of the judicial function, but did not feel that it described Day's own approach. When faced with the battered woman case, Day hid behind the perception that judges are bureaucrats with limited discretion rather than fight for her client - society - against the harms of its own imperfections. This is exemplified when she says "Next time, what will it be? Blame the judges for not stopping a war? Drugs? Our fault! Social insanity? Our fault! As if we are the ones who make the laws" (62). This conception of neutral lawmaking goes against not only Holmes's realist interpretation of the role of courts, but also against the kind of quantitative law-making described by Black that occurs every time a lawyer exercises discretion in choosing settlement over litigation, or filing a particular motion. In failing to see that her limitations are ultimately those of her own dedication and imagination (in that she needs to come up with the "really good reasons" to sidestep the mandatory sentencing (83)), Day has failed the basic lawyer's test of walking and chewing gum at the same time.

Day's cognitive dissonance on this issue appears to stem from the undisclosed subtleties of her epistemological views, combined with the belief that "controlling personal dispositions" can temper the inherently political nature of legal interpretation (63). Together, these beliefs allow her to think that she has done "all that she can do" in her position for the battered woman, and that the only solution is to assign this person to jail for an arbitrary length of time. But if the outcome would be different if Day had consulted her personal dispositions, is she really powerless to act? To paraphrase the Python boys, Day's conscience has learnt the first lesson of not being seen, however it has chosen a very obvious hiding place.

Thinking back to Day's initial call for a revolution after reading the whole story left a sour taste in my mouth. She calls for "civility" to be an "integral way we do things," and laments the rise in "Politicians!" that emerge from the fragmentation of "civil society" (63). But, to quote Robinson, society is a fucking vulgar place. The civility she yearns for is in my opinion, at best a fictional construct. At worst, it is code for regression back to a system of even greater dehumanization and cruelty, where mercy is frowned upon and harmless-looking bureaucrats secretly make law when they're not judging young girls on trains or fussing about courtroom dress codes and chewing gum.

But what is the alternative? From my limited understanding, directly elected judges in US states tend to produce a whole host of problems avoided by unelected judges, including the "tough on crime" trends that have been discussed in numerous places on this Twiki. However, it's hard to know how various factors have contributed to shaping that particular legal environment. perhaps we should be encouraging greater democratic participation and politicization of the judicial branch, or even a reorganization of the current separation of powers between branches.

-- RohanGrey - 03 Apr 2012

It is interesting how people come to different interpretations about the same piece. For me, I think Judge Day feels somewhat powerless about her role as a judge. She said that lawyers are liars, because they double talk, triple talk. Are judges any different? Perhaps they are. But I think the reason is that judges are much more powerful. Lawyers play with the words to try to exert whatever influence on the judges, and meanwhile need to stay in their ethical lines. Judges, within their discretionary power, can make decisions that have a direct impact on the clients and the lawyers’ own lives. However, judges’ discretion is quite limited, so the laws as administered by judges may also far from the truth. For example, in the story about the antitrust case, Judge Day told us how she had to follow the complicated rules to find the facts that may appear obvious to others. The expert on the one hand despised the rules, on the other hand was overwhelmed by them. That explains why lawyers and judges are seen “like someone special”, but also as “an idiot”. They have to follow the rules that seem to be unnecessarily complex or obscure to reach a finding that seem natural to people outside the legal profession. They create the laws to mimick the real world, try to make sense of it by the multiple factor tests, but the world simply does not function that way. For example, there is “no reasonable person”, but only various social, economic, and psychological factors that together influence the community’s notion regarding whether there is negligence.

-- MeiqiangCui - 04 June 2012


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