Law in Contemporary Society
Plumbers apprentice so that they may become well trained and certified master plumbers. I am in law school so that I may gain the qualifications and certification necessary to be a lawyer and attain a job as one. To me, the function of law school is to provide training for a trade: the trade of lawyering. I do not believe that there is anything that makes the law and the trade of lawyering any more venerable than other trades such as plumbing, electrical work, and vehicle repair.

  • Do you believe lawyering is not about producing justice? Or do you believe there is nothing more venerable about justice than plumbing?

We have made indoor plumbing, electricity, and vehicular transportation such an integrated part of our lives that the absence of technicians capable of sustaining these functions would have as much of a disruptive effect as the absence of people capable of lawyering.

  • The clear implication is that you mean to have clients in the same direct sense that a car mechanic does. Most of the people who go to school here don't have individual human clients. Did you mean to distinguish your intentions in this way?

I have no pretension about what I am doing. I am in law school to become a tradesman and render my services to those who seek it.

  • How would you explain your position to a client who expected you to produce justice? Would you deny that justice exists, call it a pretension, or would you urge the client to retain a different lawyer?

QUESTION 1: I don't think lawyering is objectively about anything. There are those who perceive lawyering solely as a mechanism for eliciting a judgment in favor of their client and nothing more, and there are others--possibly the majority--who believe lawyering is about producing justice for their client and/or for society. However, I cannot rid myself of two important notions that I have about justice. 1. Those who seek justice are only seeking their personal conception of justice. 2. Justice does not exist independent of the world.

  • By "cannot rid" do you mean "cannot try to rid" or "don't understand why other people at least as smart as I am don't agree with me" or "am not listening to anything said about"?
  • By this I mean that the notions seem true to me a priori, and after lengthy discussions with those astute in ethical theory, I have yet to understand how necessary moral truths, which include principles of justice, can exist when their denial is intelligible. For instance, a four sided triangle is unintelligible as is 2+2=7. Thus, "all triangles have three sides" and "2+2=4" are necessary truths and as such the truths exist in all possible worlds. Now let's take a commonly accepted necessary moral truth related to the law. "It is wrong to break promises." From this the law applies contingent truths. For example, Jones borrowed $1,000 promising to pay it back in 30 days. He has not; therefore,the judge says,"It is unjust for Jones to borrow $1,000 and refuse to pay it back, justice requires him to pay it and he must, it is so ordered." The statement "justice requires him to pay it back" is a contingent truth based upon the previous necessary truth "it is wrong to break a promise." But the converse of that statement is intelligible. I, a rational agent, can conceive of a world where "it is right to break promises" (even setting aside situations of unconsionability). Fittingly, I conclude that it is not a necessary truth and no contingent truths can follow from it. I believe this to be the case for all other moral principles of which our law is based on.
  • Admittedly, saying that there are no necessary moral truths is of course subtly distinct from my assertion that moral statements do not contain a truth value. I have come to that conclusion for two basic reasons: 1. The metaphysical conundrum created by saying an act is wrong or right. 2. The epistemological issue of how we even have access to knowing whether something is right. When we say "the stop sign is red" we are saying that "there exist a stop sign such that it instantiates the property red." This is fine. I know the property red and I have epistemic access to it. When we say "killing for pleasure is wrong" we are saying that killing instantiates the property of wrongness. This is where the metaphysical and epistemological dilemma for me arises. I am not sure what justifies the belief that there exists a property wrongness or justice or goodness. The difficulty in justifying these properties leads me to the conclusion that they do not exist, or in the very least that the onus is on those purporting its existence.

  • If a large number of people agree on, for example, the injustice of racial segregation, is that still only a personal conception of justice?
  • I would say that it is a personal conception held by many people, but the aggregation of a belief does not entail its existence. 100 years ago you might have found that a majority of people had a personal conception that miscegeny was an injustice to society. Today, a majority of people believe that animals which have proven themselves to be self aware creatures (such as elephants, dolphins, and primates) don't deserve the same rights as humans. Such speciesism may find itself in the minority of society within the next 100 years, for it is my hope that this will be the case. But we should not conclude that because a majority of society intuitively believes something is wrong there exists a property of wrongness without first justifying the existence of the property.

  • What is the significance of the apparently tautological statement that justice cannot exist independent of "the world"?
  • I'm not sure how it is tautological, but I meant that the justice does not exist independent of our mind as we might say the property red or the property wet does

Question 2: I did not mean to distinguish having an individual client from working for an employer, but you are right, that implication does follow.

  • It seems important to observe, then, as a thing we have learned about your opinions and intentions, that law firm employment wouldn't be consistent with them.

Question 3: I don't think that complex philosophical positions on justice necessarily affect my potential relationship with a client who seeks justice. I certainly have a normative sense of justice. For instance, the Israeli response to petty rocket launches strikes me as unjust, but I believe moral statements such as this are not actual propositions (i.e. they do not contain truth values). The expression then is akin to saying "go jets" or "boo giants." While this non-cognitivist perspective makes certain discussions difficult, it has little effect on how I live.

  • But doesn't it have a decisive effect on your ability to represent a client who considers it incompatible with her values? That you answered the question only from your own perspective, rather than also from that of the client suggests a junction where your pose becomes untenable.
  • I'm afraid I don't understand why this problem exists. I assumed, though maybe without justification, that the main concern a client has about his or her lawyer is whether the lawyer can win.

-- JonathanGuerra - 29 Jan 2009

Jonathan -- Plumbing and vehicle repair have clearer end goals that involve less dispute. Usually, if a building has leaky pipes, both landlords and tenants agree that the plumber should fix the problem, and they have a similar conception of what a fixed pipe looks like (it doesn't leak). In the law there is always someone on the other side. Let's say there are two plumbers, one hired by a landlord who asks him to turn off the water to a tenant's apartment because he doesn't like the look of her, and one hired by the tenant to get the water turned back on. Is there no difference between them? Would you be the first plumber in one building and the second in the next, and consider yourself simply plying a trade? Would you build the plumbing for a gas chamber?

AndrewCase 29 Jan 2009

You make a good point which was touched on by Professor Moglen at the beginning of class. Our legal system is an adversarial process which gives rise to complexities not within other trades. For your hypothetical, I must admit that I am not sure what significance it has to our discussion. I will assume that the plumber hired by the landlord is motivated by his bottom line and the lawyer hired by the tenant is motivated by a desire to help the tenant. We would naturally loathe the first and laud the second, but yes they are both plying a trade. As for your last question, allow me to respond by asking my own: Would you pay taxes to a state which conducts executions and a federal government which condones torture?


Webs Webs

r9 - 08 Jan 2010 - 17:17:12 - IanSullivan
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