The Myth of Moral Justice

Why Our Legal System Fails to Do What's Right

Thane Rosenbaum

• Publisher: Harper Perennial
• Year: 2011
• Print ISBN:
  9780060735241
• eBook ISBN:
  9780062119889
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

We are obsessed with watching television shows and feature films about lawyers, reading legal thrillers, and following real-life trials. Yet, at the same time, most of us don't trust lawyers and hold them and the legal system in very low esteem.

In  The Myth of Moral Justice, law professor and novelist  Thane Rosenbaum suggests that this paradox stems from the fact that citizens and the courts are at odds when it comes to their definitions of justice. With a lawyer's expertise and a novelist's sensability,  Rosenbaum tackles complicated philosophical questions about our longing for moral justice. He also takes a critical look at what our legal system does to the spirits of those who must come before the law, along with those who practice within it.

Chapter 1
DOING THE RIGHT THING: THE SPLIT BETWEEN THE MORAL AND THE LEGAL

In the motion picture The Verdict (1982), directed by Sidney Lumet from a screenplay written by David Mamet, Paul Newman, playing the role of Frank Galvin, a washed-up, ambulance-chasing, alcoholic attorney desperate for a second chance, sums up his case to the jury by imploring, and empowering them, to simply do the right thing.

Throughout the film the jurors become witnesses to an avalanche of moral corruption and cynicism—all courtesy of the legal system. They see the artifice that shadows the spectacle of a trial, the breaches of professional duty and lapses in human character, the way the courtroom, despite its sturdy, marbled appearance, can serve as an unbalanced playing field for those outmatched by resources and foiled by foul play. And there are so many instances of tampering, not with the jury, but with what the jury is exposed to: manipulated procedural and evidentiary rules, and the ways in which money is used to silence the truth. Having faith that the jury will be able to judge what is real, honest, and human from the staged facades and deceit that dominated the courtroom, Paul Newman ultimately summed up what most people expect and wish the law to be:

So much of the time we’re just lost. We say, please God, tell us what is right, tell us what is true. When there is no justice, the rich win, the poor are powerless. We become tired of hearing people lie. And after a time we become dead. We think of ourselves as victims, and we become victims.... We doubt ourselves, we doubt our beliefs, we doubt our institutions. We doubt the law. But today you are the law. Not some book. Not some lawyer.... These are just symbols of our desire to be just. They are in fact a prayer, a fervent and frightened prayer.... In my religion we say, “Act as if thee had faith.” Faith will be given to you. If we are to have faith in justice we are only to believe in ourselves and act with justice.

Law and religion. Judges and clergy. Verdicts and absolutions. Blind faith and blind justice.

For most people, there is a belief that the values and teachings that are embodied in both law and religion—the consciousness and ideals that are invoked in cathedrals and courthouses—are basically the same, that they go hand in hand. In practice, however, they are connected by left feet. Law and religion are, in fact, largely and unfortunately not inspired by the same values, although most of us wish to believe otherwise.

We assume that an exalted sense of rightness, and knowing the proper standards for engaging in the world and dealing with our fellow human beings, is what clergy and judges have in common. But men of the cloth and men who sit on judicial benches see the world quite differently from one another. And it’s not merely their elevated pedestals that make it so. Let us not be fooled by the robes: priests, rabbis, ministers, imams, and jurists may dress the same, but they are not the same. Uniforms can be deceiving; the mirage of uniformity—despite the fact that judges wear black robes and clergy are sometimes dressed in white—may be more of a caveat than sartorial coincidence. And yes, courts and churches are decorated with similar props and vestments. But, once more, the similarity here is only one of interior design. The decor is intended to elicit a particular emotion, an aura that isn’t always deserved, but does command respect.

Despite The Verdict’s spirited call to faith, the faith that animates religion does not exist in the law. In the film, the jury exercises faith in its own judgment, ultimately rejecting what it sees as the immoral shenanigans of a system that plays by its own blighted rules. But, of course, The Verdict is a movie, and the jurors are only actors. Most actual juries don’t have the kind of moral courage to flagrantly ignore the instructions of the judge, and even if they did, the judge would ultimately nullify their verdict.

In another Sidney Lumet movie, in fact, his first feature film, 12 Angry Men (1957), the jury once more commands center stage—not in the jury box, but in the jury room itself. It is a film that deals with the conflicts and deliberations that precede the actual verdict. It is a fictional, inside glance of what the law looks like as it arrives at its judgments. But unlike the jury in The Verdict, the one in 12 Angry Men prevailed over its own human failings and redeemed itself by exposing emotional truths that the trial would never have uncovered. For reasons of prejudice and expediency, the jurors, at the outset of their deliberations, presume that the defendant is guilty, even though, in a criminal trial, innocence is always presumed until proven otherwise. The deliberations in 12 Angry Men transform the jury from one that shares a nonchalant certainty about guilt to one that eventually sees more complexity in the story of this defendant, which lead them to find him innocent. One juror, played by Henry Fonda, calls attention to other values, motives, and events that his colleagues had been willing to overlook. Ultimately they arrive at a verdict that is both legally and morally correct.

In The Verdict and 12 Angry Men, Lumet provides two portraits of juries, each overcoming either the perversions of the system or their own prejudices, and, in the end, doing what’s right. But since the law sets such a bad example in guiding their conscience, the jury must have faith in each other to impose justice on a system that is equally disposed to injustice.

Yet this faith in a moral universe that can reveal itself in law, and the similar faith that inspires common men and women of the jury to courageously stand up and do the right thing, is really a cry of longing, made by artists, not lawyers. It is also a figment of the artist’s imagination. Faith has no counterpart in the legal system itself. Once a witness swears to tell the truth with his hand over the Bible and his fingers crossed behind his back, the spiritual world of God and faith ceases to be part of the proceedings.

It shouldn’t be all that surprising that The Verdict brings law and religion into the same film only to show how irreconcilably needy of salvation, and empty of faith, both institutions actually are. Paul Newman’s stirring summation to the jury addresses this natural desire—almost a religious longing—to think of judgment and faith in the same vein. Indeed, he even calls this impulse a “prayer.” But as a prayer, it is very much an unanswered one.

Now, I’ve referred to the imperative of doing the right thing several times. And perhaps it’s a good idea to explain what I mean by the phrase, because in an age where we are naturally suspicious of moral absolutes, and where moral relativism reigns supreme, some people are made uncomfortable by any notion that there is a universally shared standard of morality, or that there even is such a thing as doing the right thing. But what’s right and what’s moral doesn’t have to conform to a particular religious ethos. In our fear of religious intolerance, we shouldn’t ignore that morality and conscience can and should guide private lives.

Sometimes what’s right is simply obvious, because its opposite is so clearly wrong—like failing to apologize or acknowledge someone else’s pain. We were taught these basic moral lessons as children, and we have conveniently forgotten them as adults. The very things that we were properly warned not to do as children, like lying, blaming others, and failing to take personal responsibility for our actions, underlie the lawsuits that crowd our dockets and choke the decency out of our morally challenged legal system.

The presumption that law and religion are, in many ways, motivated by the same values is an understandable one. After all, there is a widespread belief that the law is primarily in the business of seeking out truths and revealing the just path. Its task is to do what’s fair and what’s right. Judges hand down judgments. They judge. They make hard decisions. But these decisions should make sense, they should feel right emotionally and morally to those not only on the receiving end of these judgments, but to the rest of us, the outside witnesses to these private proceedings. This expectation of fairness, wisdom, and justice is precisely what draws people to the law in the first place—the desire for a just resolution to a conflict that simply can’t be mediated elsewhere.

As for religion, most people attend churches, synagogues, and mosques in search of moral and spiritual guidance, among other things. They want to expand their moral vision and consciousness, wishing to anchor themselves temporally to this world while at the same time aspiring to a more transcendent existence. We all want to know the recipe for virtue, the secret formula for becoming a better person. Is there a way to live righteously when our daily endeavors are marked by so much personal failure? As Paul Newman explains to the jury, most people want to know “what is right, what is true.”

Unfortunately, the law is not the place to find those answers. Justice may be about many things, but the moral complexity of distinguishing between right and wrong, or arriving at the truth of a given situation, is neither its strength nor its ostensible mission. Courts of law are there to administer justice, to efficiently streamline cases, to ensure the availability of a forum that offers the chance at some relief. It’s the possibility of justice that it guarantees, not the quality of that justice, nor the certainty that, in the end, justice will make sense, feel right, and resolve matters in a way that leaves the parties better off and reconciled to move on with their lives. The institution of law defines itself as an arbiter of legal disputes, and not as a dispenser of moral lessons or seeker of truths. It thrives on an adversarial process that only takes prisoners and leaves little room for peace.

Truth has a way of seeming incidental to the law, an accidental by-product of a stated goal that generally gets short shrift. The legal system justifies its role in society by imposing discipline on the lawless and resolving conflicts—often inadequately—among the rest. These are its fundamentally narrow objectives. As long as caseloads progress, justice is done. That’s what servants of the law mean when they proclaim, unapologetically, even after an unjust verdict, that “the law has spoken.” But when the results are immoral, what can be said about the words that were used to justify the law’s spoken decree? When the application of the law is perceived as senseless, it has a shattering effect on the capacity of the parties and the community to reconcile and move on.

The legal system always seems to ignore that the public has inherent expectations about the law, which conflict with the more circumscribed vision of what the law has in mind for itself. Truth is one example of this broken trust. The legal system functions quite well knowing that most cases don’t end up achieving any measure of truth. In fact, trials, legal settlements, and plea bargains generally result in either silencing the truth or bastardizing it. The legal system, for its part, is satisfied with learning facts. If the facts also turn out to be true, that’s a fortuity of the legal system, not an aspiration. But facts and truths are two different concepts entirely. Facts don’t have to be true. They just need to be found and applied to the law. Facts are artifacts of the justice system, while truths are trademarks of the moral universe. Fact is a legal term; truth is a moral one. The legal system’s notion of justice is served by merely finding legal facts without also incorporating the moral dimensions of emotional and literal truth.

The law is inured to these practical realities of providing justice. The public, however, finds this situation intolerable, and it contributes to a kind of moral revulsion toward the legal system for its complacency about discovering truth. Two parties come before the law, each telling a different story. Which story is true, or is there yet another story that approximates the truth more accurately? The public needs to believe that the law can reveal the truth—that it even cares about the truth—as much as it needs to believe that the law can punish offenders and resolve conflicts. But on this treadmill toward resolution, the truth loses traction— the zeal for finality overrides the truth behind the story.

This failure to distinguish facts from truths—what many believe ought to be the law’s central aim—is one source of hostility that artists have long directed at the legal system. How can the law be about anything if it’s not about establishing the truth? And why should the public have faith in an institution that professes to be about truth but then delivers a brand of justice that ends up undermining and subverting the truth?

In the film A Civil Action (1998), directed and written by Steven Zaillian, based on a true story written by Jonathan Harr, a high-powered, cynically seasoned defense attorney played by Robert Duvall acknowledges to his adversary that courtrooms are not places of truth, and that the law has very little to do with finding truth.

There is a difference between justice and doing what’s just. Justice is a legal term. It involves the administration and maintenance of the legal system, the manner in which it is institutionally organized, the way it presents itself to the outside world. Justice lives according to its own set of internal rules. It is governed by its own proprietary rituals and formalities. It exists within a vast labyrinthine maze of bureaucratic and technical procedures, fed by an inexhaustible supply of lifeless statutes and precedent-affirming cases, choked by all those court records, docket numbers, and written forms.

Justice, in many ways, has far more in common with the soulless, airless atmosphere that Franz Kafka concocted for his character, Joseph K., in his novel The Trial, than anything that approximates just treatment or a just result at the end of a long trial. Paradoxically, there is no actual, legal trial in The Trial— only one that is spiritually imprisoning. Joseph K. never gets that far. He’s too busy living under the gaze of accusation and suspicion, preparing for a trial that never comes, yet a death sentence arrives anyway. Kafka’s portrayal of justice is horrific, but perhaps all too accurate. The legal system’s path to justice has a consumptive, machine-like quality to it, with all its grinding wheels and soul-crushing, dehumanizing dimensions. The corridors of justice in The Trial are only attic-size, providing nothing but suffocation and despair.

Similarly, nearly three quarters of a century earlier, not in Prague but in London, Charles Dickens, in his Victorian masterpiece Bleak House, imagined the dense fog of endless legal confusion surrounding the estate matter of Jarndyce v. Jarndyce. And throughout the more than eight hundred pages, there is no resolution, just black-hole anguish and ruination. This was Dickens’s vision of what the Court of Chancery offered citizens who came before it each day like addicted beggars, seeking relief and justice but receiving nothing in return other than wasted time and arrested lives.

The word “just,” however, quite separate from the word “justice,” implies a moral dimension. It speaks entirely to the moral realm of our humanity. Doing what’s just is the experience of providing, and ultimately receiving, true relief. To be just is not a legal aspiration but a moral one. When someone is acting justly, the outcome makes sense not just to the mind, but also in the heart and soul.

Of course, soul and morality are hardly ever mentioned in law school. This, among other reasons, is what sets legal trade schools apart from divinity schools. These words constitute the language of the spiritual sphere, the interior world of human beings and the vocabulary of priests, rabbis, ministers, and mullahs—and not judges. Morality does not appear in a law-school syllabus. Nor is it a word that lawyers think about when performing their jobs. Law school does not teach moral education, which explains why the practice of law is never framed in moral terms, only in legal ones.

And that’s why there is a tremendous difference between legal ethics, which is taken very seriously by the profession, and private morality, which usually plays no role in the performance of a lawyer’s job. One has to do with the way lawyers police themselves in their dealings with clients and each other; the other concerns a lawyer’s moral duty to the world at large, beyond the attorney-client relationship, beyond the rules of court, beyond anything other than their own humanity and private conscience. An individual can fastidiously maintain all the ethical requirements of his or her profession and still spend the workday engaged in morally questionable practices. And all this fidelity to legal ethics seems to have no connection to producing morally just results. Justice is merely what the law provides as an answer to your injury, even if it is otherwise unjust. All that matters is that it be legally correct.

Indeed, what passes for justice in America is often immoral justice—a resolution that makes sense legally and can be explained and justified by judges, lawyers, and law professors simply by conforming, in a very narrow formalistic sense, to precedent and procedure, but ultimately feels emotionally and morally wrong to everyone else. Justice that doesn’t feel just, but instead feels like a colossal misnomer.

There is a cold bottom-line to justice. Bureaucratic efficiencies trample all other values. The human drama, with its variety of upended, disrupted lives, and backstory that never receives front-and-center attention, goes undetected and unremedied.

These discontinuities, often misunderstood by laymen and ignored by lawyers, account for much of the public’s general disdain for the legal system. The fact is, many of the foundational principles of the legal system leave people with an empty feeling and a sour taste that doesn’t go away anytime soon after a legal resolution. For ordinary people, what passes for justice is simply too hard to stomach.

In every legal action there is going to be a winner and a loser. That’s how the combative, adversarial system is set up to work. And make no mistake about it: the system is adversarial. Even with corporate mergers and acquisitions, takeovers are usually deemed hostile. The advocacy is supposed to be zealous, which only heightens the winner-take-all dimensions of the conflict. Two parties present their cases, trying to sway, if not manipulate, the story in their direction, even as their versions may stray from the actual truth. Courts are designed to facilitate the resolution of these conflicts, to essentially pick the winners, officiating this zero-sum exchange between parties who somehow, through life and its varied transactions and mishaps, wound up as adversaries, or worse, enemies.

But in a pure winner-take-all paradigm, where the advocacy is always fierce and strategically played out, victory is not synonymous with justice, because the right party—the party that was right and should have won—may not end up victorious. Sometimes the outcome of a legal conflict is determined for reasons wholly apart from the truth or from what the morally correct result should have been. Often it’s a matter of one side having superior resources over the other and exploiting them mercilessly. One lawyer—or a team of lawyers—might be simply more skilled than his adversary. Sometimes the government’s prosecutorial power is insurmountable, or the political passions that exist outside the courthouse make it impossible for the defendant to receive a fair trial. In some cases, the presumptions go in the opposite direction, where the community—in the form of a representative jury—sends a message by allowing a guilty person to go free. Then there are those occasions when technical, procedural, or constitutional irregularities dictate a result that is morally wrong, but one that justice somehow demands. Such an instance occurs when the police mishandle or obtain evidence unlawfully. Had it not been for a procedural error, the defendant would have been found guilty.

The legal system reveals its own cynicism—and undermines its legitimacy as an arbiter of truth—by declaring unjust winners. Most people realize this, but that doesn’t make it any more palatable. In fact, the more immoral and unconscionable the law appears, the greater the critical mass of cynicism and faithlessness that accumulates. The O. J. Simpson trial was a horrifying example of this phenomenon for the Goldman and Brown families. And when such cases occur and we become witnesses to them, it invariably reshapes and prejudices our attitudes toward the law. Powerful attorneys, and biases that had no actual bearing on the truth, produced an outcome that most people felt was wrong, although legally sanctioned and deemed correct. For many people, the Bush v. Gore Supreme Court decision was similarly unjust, governed by the political leanings of the justices and their partisan readings of the law, and not by what was right. But why are such travesties of justice tolerated? We accept decisions that are plainly wrong, all because legally they are completely justified.

If the community believes that the legal system is there to do what’s just and to discover the truth—indeed, to provide an official record of the truth—then a sporting theory of justice, where one side is anointed the winner while the other is banished as the loser, may not achieve a legitimate sense of justness, or truth. Winning, after all, is a contest of skill and luck, story-spinning and manipulation, and not a referendum on truth. Justice, as defined by a legal resolution, may be done, but sometimes not at all served, because the result is a gruesome miscarriage, and not just at all. The winner-take-all structure of the legal system is morally deficient because it creates a presumption that justice has been achieved ...

Table of contents

• Cover
• Title Page
• Dedication
• Epigraph
• Contents
• INTRODUCTION
• Chapter 1 - DOING THE RIGHT THING: THE SPLIT BETWEEN THE MORAL AND THE LEGAL
• Chapter 2 - A NEW PARADIGM OF MORAL JUSTICE
• Chapter 3 - POUND OF FLESH
• Chapter 4 - STORY AS REMEDY
• Chapter 5 - THE VARIOUS FACES OF GRIEF
• Chapter 6 - ABORTED TRIALS AND LYING UNDER THE LAW
• Chapter 7 - THE BEST-KEPT SECRETS OF ZEALOUS ADVOCATES
• Chapter 8 - FORBIDDEN EMOTIONS IN A WORLD OUT OF ORDER
• Chapter 9 - JUDGES WHO FEIGN NOT HAVING FEELINGS
• Chapter 10 - APOLOGY AS MORAL ANTIDOTE TO THE LEGAL DISEASE
• Chapter 11 - APOLOGIES IN PRACTICE
• Chapter 12 - RESTORATION OR REVENGE
• Chapter 13 - REPAIR IN PRACTICE
• Chapter 14 - THE NON-DUTY TO RESCUE UNDER AMERICAN LAW
• Chapter 15 - RESCUE AS MORAL IMPERATIVE
• Chapter 16 - THE LAW’S PREFERENCE FOR THE BODY OVER THE SOUL
• Chapter 17 - FRUSTRATED LAWYERS AND THE PUBLIC’S DISCONTENT
• Chapter 18 - THE ARTIST AND THE LAW
• CONCLUSION
• AFTERWORD
• ACKNOWLEDGMENTS
• NOTES
• INDEX
• CREDITS AND PERMISSIONS
• About the Author
• Praise
• Also by Thane Rosenbaum
• Copyright
• About the Publisher