March 9, 2010

"You feel that you're sacrificing your inhumanity..."

I misspeak, back in 2006:



This is part of a discussion of the oral argument in the partial-birth abortion case, Gonzales v. Carhart. (I'm teaching the case this week in conlaw2.) What I'm worrying about when I misspeak there is the way one seems inhumane when framing a profound moral question in legal terms. I meant to say that legal analysis makes you seem, to laypersons, as though you are sacrificing your humanity. I hate to misspeak — especially when it comes, as it so often does, in the form of saying the opposite of what you meant.  But misspeaking may reveal something you actually believe, even if you didn't want to say it. Perhaps, deep down, I think the structures imposed by legal analysis really are the best of humanity. And yet, I feel that for general audiences, I need to apologize for being a lawyer.

26 comments:

Henry said...

Rationality is human.

This is probably when everyone decided you were a libertarian.

traditionalguy said...

Once inhumanity is gone, there is no getting it back. But why apologise to bitter non-lawyers? Lawyers function in a world of accepted definitions using words of art to avoid the word's shrinkage or enlargement. Then some legislator or Appeals Court tries to redefine things . Finally a Jury's Nullification is the key to the survival of humanity within the legal system. It is far too easy in gossip and in media mini-dramas to avoid telling the rest of the story. That is why jurors are the guardians in our system because they care enough to listen to and think about all of the facts in cases. The trial lawyers skill starts by getting cooperation from the Judge ( another lawyer and hopefully a friend) in order to get his case in front of that jury.

Scott said...

The veneer of humanity has been delaminating from the intelligensia for a long time. It just happens to have flaked off first among lawyers.

I think every attorney deserves to be slapped with a nice thick coat of Rustoleum.

NewHam said...

"And yet, I feel that for general audiences, I need to apologize for being a lawyer."

Oh, I don't know about that.

I think you'd probably be best served by apologizing for being a lawyer no matter what kind of audience you're standing in front of.

ricpic said...

No one ever knows what they really think.

k*thy said...

So you're conflicted. You're...human...and a trained lawyer. In reality, it's not all that unique.

Brian said...

"Oh, the inhumanity!"
vs.
"Oh, the humanity!"

Sort of sounds the same, huh? Both expressions would be valid, denoting a sense of despair. Though, perhaps, the original phrase is best for disasters, and the mis-speak for man-inflicted suffering.

Sort of like flammable and inflammable. Boy, did I learn that one the hard way.

lyssalovelyredhead said...

Several of my law school professors, with regards to several different things (the jury system, for example) said some variation on:

"It's the worst system possible, except for all the others out there"

I think that applies here, too. There are a lot of problems with putting moral issues in a legal framework. It feels wrong. But can you think of a better way to deal with them?*

*(Disclaimer: the liberatarian ideal would be to just live and let live, and let each decide for himself what is moral and right. I agree generally, but where there is another person who needs protection, which is what most people who are anti-abortion believe, that doesn't work as well.)

traditionalguy said...

A study of the middle 1600s politics in England really looks like the struggle of the Tea Party people with King Obama. In that strategic conflict between a Divine Right King and a de facto Parlementary rule the Courts were used to make many rulings about ancient laws and customs. The battle cry for liberty became, "No crime , no punishment". That sounds easy to us today, but the King, like Obama's administrators, specialised in arresting opposition on charges that resisting the King's rule on anything was a crime itself. One wonders if Congressman Massa would like to plead " no crime, no punishment". The divine right to rule by King Obama is getting more inhuman each day.

Henry said...

I will elaborate on my first comment. To frame profound moral questions in legal terms is to frame them in in structured, rational, and logical terms. This is profoundly human.

It is only a part of being human, but it is an essential part. Without it, we never get to science or philosophy or the rule of law.

Joseph said...

I agree. Despite their reputation and plenty of bad examples, I find lawyers I interact with actually tend to be more careful and cognizant of the ethical implications of their decisions than most people. Lawyers are often seen as instigating conflict, but, even to the extent they are (and I don't think that's what lawyers tend to do at all), they funnel conflict into constructive forums for peaceful, rational resolution.

Sarah said...

I need to apologize for being a lawyer.

You, a law professor.

I don't think an apology is necessary when you mis-speak and only really need to clarify.

IANAL.

ricpic said...

Oy, what a can of worms is this philosophy!

--Gimpel the Fool

bagoh20 said...

Ann: "I think the structures imposed by legal analysis really are the best of humanity."

Maybe...sometimes, but often they are a defense for the indefensible, kind of like: "I was just following orders." I was just following the structures.

traditionalguy: "It is far too easy in gossip and in media mini-dramas to avoid telling the rest of the story."

But often the whole story is withheld from juries as well assuming them too weak to sort it out.

I guess us laypeople just don't see the legal system as able to escape the limitations of human weakness as much as the legal profession seems to.

I'm definitely not arguing for anarchy, but the advantages of the legal system have to be weighed against a lot of corruption of it's own standards and the injustice perpetrated by valuing process over outcomes.

When I fear being sued or tried, I fear being mistreated by the system more than the jury. It's not the jury that delays justice until it's out of reach, or makes everyone a loser regardless of verdict.

traditionalguy said...

Bagoh20...That is why both side get to speak and to present witnesses and to cross examine the other side's witnesses. From that, the Jury will discover the truth no matter how hard one side covers it up.

Trooper York said...

Despite what you might think about my attitude tradionalguy, I have to agree with you thatlawyers have their uses!

t-man said...

There was law and there was equity. The essential merger of the two has deformed both.

Trooper York said...
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Trooper York said...

That guy said that was you. All of my photo's are emailed to me by my many readers like this one that Andrew Sullivan sent me!

Fen said...
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Fen said...
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Fen said...

To frame profound moral questions in legal terms is to frame them in in structured, rational, and logical terms. This is profoundly human.

Exactly. Law is nothing more than the codification of Morality.

One of our Morals is that we err on the side of caution when a human life is involved - we will not convict if there is "reasonable doubt".

And we should hold to that same morality when judging whether a fetus is a human protected by Human Rights.

Big Mike said...

I need to apologize for being a lawyer.

That's actually a good idea. There should be a day set aside like the Day of Atonement in the Jewish religion, where lawyers publicly apologize for being a lawyer. In fact, it might even be a monthly thing, not just annual.

Ritmo Brasileiro said...

It's okay. It was probably just a Freudian slip.

traditionalguy said...

Big Mike...That's fine. Do we get a real Mardis Gras before the fast begins. We love rituals. Legal rituals pass along human traditions and give meaning to men and women. Rituals commemorate births , deaths, marriages, and the end to a judicially settled dispute. So let's have a Yom Kippur Day for imperfect lawyers. No need to invite C-4 , he would only feel threatened by it.

Holmes said...

Isn't the law an expression of our humanity?