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dominic
30-11-2004, 06:11 AM
As someone who recently graduated law school and passed the New York bar, but has yet to motivate himself to get a job working as a lawyer, I took some interest in the heated exchange between K-Punk and Luka concerning lawyers.

Here's the best reason for thinking ill of lawyers. They are intellectual laborers. They toil over their computer keyboards for hours each day, upwards of 80 hours a week, skimming boring case law, crafting boring arguments, when they could be channeling their efforts into writing novels, writing plays, writing philosophy, writing poltical agit prop. They could use their talents to do something interesting. Instead, they allow the fear of not having a roof over their head at age fifty or sixty to determine the course of their youth and middle ages. Or they let the worry that without a steady and substantial income they'd be unable to win the affection of women render them squares in gray suits . . . . They want a modicum of prestige but aren't willing to put forth the effort required by more demanding lines of work. They want a modicum of intellectual satisfaction, the satisfaction of writing a winning argument, but know they will never have the satisfaction of doing work that is intrinsically interesting, truly important.

But even here, the lawyer may not come off so badly. Compare him with the academic, let's say the Shakespeare scholar who adds his bit of commentary to the reams of commentary already in the libraries, or the Deleuze scholar who does the same to Deleuze. At least the lawyer deals with real live disputes, though the dispute may be trivial and the area of the law well settled.

And let's compare the mediocre lawyer with the mediocre scholar. The mediocre lawyer lives in a city. He can afford to go to decent restaurants. He has time in the evening to do as he sees fit (unless he's a corporate lawyer). Perhaps he reads a book, catches a film. Perhaps he has a girlfriend or wife. Goes out drinking, follows music. Whatever. And at work he sits in a leather chair, has air conditioning and a secretary. And he gets to deal with people his own age. Perhaps he thinks they're boring and uptight, and perhaps they think the same of him. But that's how it goes. As for the mediocre scholar, he's an adjunct professor at three different community colleges in some rural state or province. He hardly has any money in his pocket. Cannot even afford to drink, or if he does it's at a grungey student bar. For the most part he spends his time trying to get published. Struggling to say what has already been said by more capable scholars. Down in the depths of a dusty, musty library.

The lawyer has the comfort of knowing that people don't expect much of him. He knows that they believe that he's in it just for the modicum of money, comfort, prestige. They understand, therefore, that the law is not really his profession. That it's just a job for him. He's free to pursue other interests, should he spend his time that way. The scholar, by contrast, is expected to have a calling. His existence is supposed to be exalted. To the extent he retreats from his articles and books, he shirks his solemn duty. The scholar must live at a remove from society, the lawyer is its creature. And for both, this is for better and worse.

And remember this too: the scholar can become a lawyer, and the lawyer a scholar. Their skills are roughly the same. They need only go back to grad school to get new degrees. All that is lost is the effort already spent.

Even so, the scholar is a teacher, he helps people improve themselves, aquire talents and skills. The scholar may even help his students reach their "ownmost potential," though most will inevitably abandon that potential. Lawyers, at best, advance the interests of their clients. If the clients are workers, this is perhaps for the good. If the clients have had their rights infringed by unconstitutional government action, perhaps also for the good. And this is a weak "perhaps."

So that's the best argument against lawyers.

The second reason for thinking ill of lawyers is that they are sophists. Rather than saying what they really think, they devise arguments to suit the interests of their clients. But this is perhaps overstated. That is, it is relatively rare for a lawyer to argue one side of an issue in one case, and then the other side of the same issue in another. There's some leeway here, but rarely direct conflict. That's why there are prosecutors and defense attorneys, lawyers who specialize in representing plaintiffs, lawyers who specialize in representing corporate defendants. Unless a lawyer's inordinately mercenary (which is, err, not uncommon), he'll specialize in representing positions for which he has sympathy.

As for the arguments that lawyers devise, they usually devise as many as they can think of. What may carry great weight for one judge may strike another judge as unimportant. Sometimes legal arguments are logically seamless, others times akin to music, shifting from theme to theme. Sometimes arguments are like houses, each plank bolstering what would otherwise fall, and sometimes arguments are cumulative.

What lawyers do not do, however, is present arguments that work dialectically. Lawyers do not strive to clarify the Law. Lawyers try to win cases. In so doing they may offer an explanation of the law, but only if the explanation advances rather than undermines their case.

It is up to judges to render decisions that fit with the wider law. And on this point, many theorists have argued that the Law moves by processes internal to it toward its own clarification. The Law as Reason's Own Self-Understanding. Yes, at any point in time the law is in disarray. Various incompatible ways of justifying decisions may be current at any one time. But over the long haul, only justifications that cohere with the structure of the law remain in circulation. Specious (or extraneous) justifications are squeezed out.

So lawyers are sophists. But the Law is the Work of Reason (though Reason perhaps pragmatically mutates in the course of its unfolding, rather than developing in strictly rational fashion).

The third reason for thinking ill of lawyers is that they help perpetuate the system, private property relations, and so forth. But on this point, perhaps more blame should be directed against legislatures, not lawyers as such. Do not forget that at the height of socialism in Britain and the New Deal in America, there were still lawyers. Even were private property entirely abolished, lawyers would still have the business of establishing the rights and immunities of their clients in court. For people will continue to injure each other, negligently or intentionally, and so need lawyers (unless tort law is abolished and replaced by a scheme of universal insurance). People will continue to break or underperform on contracts (many, presumably, with complicated provisions), people will continue to mug, kill, rape one another, people will continue to slander one another, divorce one another, injure or imperil each other's rights . . . .

Only a very primitive society could do without lawyers. Or a society just on the other side of revolution, for about fifteen minutes.

And this is because public justice requires that like cases be treated alike. That a case that arises today be treated the same way as a similar case that arose in the past, barring exceptional circumstances. And from this requirement comes the need for written law and for persons well versed in the law.

The fourth reason to think ill of lawyers is that, like priests, they disempower common people. Just as the priest disempowers believers by mediating between them and their god, so the lawyer serves to keep average citizens ignorant of the law. The gods are shrouded in mystification, the law grows distant, arcane . . . . Yet there is great fallacy in this comparison. There simply are no gods, at least not as traditionally conceived. But there can be no doubt as to the law's existence. Moreover, men have no real need of gods, but if they are to have justice they must also have law. And if they are to have a sophisticated society, if they are to live in any way other than as pigs, they will need written laws to organize their relations. And insofar as the law is written, there will be pages of law to study and read. Therefore, a certain class of citizens will always be required to fill this purpose. For not everyone will have the time, let alone the desire, to know the ways of the law . . . . But as for gods, nothing need be written, and therefore nothing need be read

Are there other reasons to despise lawyers?

luka
30-11-2004, 10:09 AM
just quickly i really don't give a shit what people say about lawyers.
that 'heated exchange' which didn't involve much exchanging, had nothing to do with lawyers whatsoever.

i was just saying, and i expect to have to remind people like mark of these things, but not law students, that you can do child care law, immigration law, human rights law, there;s a whole heap of things where lawyers are directly engaged in trying to save peoples lives. i think thats both intersting and important. whether or not lawyers are structurally evil i don't know, i don't even know what that means, but on an individual level theres a significant number of lawyers who are little short of heroic.

dominic
30-11-2004, 10:57 AM
if a lawyer wants to be "engaged," he can certainly take up the cause of children, of immigrants, of workers and trade unions, of oppressed minorities and state prisoners . . . . but in so doing, he must frame his arguments to persuade courts. he cannot be radical or extreme. he must invoke notions of the political good that are widely current. he must avoid philosophical candor. that is, he must not weaken his argument by expressing doubts about his commitments. he is a doer, not a thinker. he must argue only one side of the argument, and in arguing that side of the argument he must pitch it so that it seems eminently sensible. further, he cannot write with a hammer, or being unduly clever in his phrasing. his mode of writing must be, again, sensible, from beginning to end. everything he says must seem obvious. each paragraph end with "accordingly" or "therefore" or "in light of the foregoing, it is clear that . . . . "

yes, lawyers can do good, assuming one does not ask hard questions about "what is good." and in any event, relatively few lawyers try to accomplish social justice or advance the good. and of the few that do, most are to inclined to action, not thought. if you think disicplined thought man's highest capacity, then this amounts to waste. again, my view is that different people have different inclinations, dispositions, capacities, talents -- so all is not waste. for some people, being a lawyer is a good option. it's in their interests. but i don't think this holds true for most . . . . most lawyers haven't the slightest idea of what to do with their lives. they're at a loss. but knowing how to read and write, they went to law school because it seemed a sensible think to do with that particular skill set. even the ones who are not otherwise sensible. they panicked. or if they didn't lose their way, they consciously sold out ambitions that they left untried.

and the lawyers who excel at being lawyers for the most part do the bidding of large corporations or wealthy individuals, or they work for the government.

these are the plain facts, to which there are of course exceptions. but without general facts, we'd never get anywhere in argument.

however, i think k-punk attacked lawyers because the law orders rights and responsibilities in terms of private persons, not collectives. and he probably disagrees with the philosophical foundations of the law, of treating people as individual subjects, etcetera. (not sure where i stand on this sort of question)

also, just as having a class of people devoted to religion serves to mystify divine matters, so having a class of people who specialize in law serves to mystify law. however, my considered position is that law is necessary in any complex, sophisticated society. and the more sophisticated the society, the more complex its laws, the more necessary it is to have lawyers who devote their time to working with the law. perhaps in a small poltiical community devoted to republican virtue, lawyers might not be necessary. all citizens would know the principles of the law. and should they have to go to court themselves, they'd be allowed time to get a handle on the specific laws (case law, statutes) relating to their suit, and allowed time to prepare their own arguments. so, mark either thinks that a communist society would be relatively simple and small-scale and have no need of complex law, or he thinks that lawyers as encountered today are complicit in the workings of the capitalist order, which is based on private property and private rights and duties . . . . i think the second possibility the more likely explanation of his views

luka
30-11-2004, 11:20 AM
you might want to talk it over with a careers advisor.

mind_philip
30-11-2004, 12:02 PM
That Kafka story has a lot to answer for...

rewch
30-11-2004, 02:36 PM
but still when/if a revolution comes people will want to deal with the perceived cause of their problems & a very obvious symbol of those problems is the law and since you can't put the law up against the wall they'll want the nearest thing...you guessed it, the lawyers

& despite dominic's very well-reasoned & rather admirable efforts at an anatomy of lawyers (& up until now i had solely considered them as machines and am quite shocked to discover they have nervous systems and soft-wiring like the rest of us) there is something so visceral & joyous in being able to make a sweeping & necessarily untrue generalization such as 'all lawyers are evil'

mind_philip
30-11-2004, 04:13 PM
Lawyers and cold rationalists both have to open their bowels in the morning. Isn't this whole attempt to demonise an entire group based upon their profession rather disgusting?

be.jazz
30-11-2004, 05:05 PM
The fourth reason to think ill of lawyers is that, like priests, they disempower common people. Just as the priest disempowers believers by mediating between them and their god, so the lawyer serves to keep average citizens ignorant of the law. The gods are shrouded in mystification, the law grows distant, arcane
Couldn't you say this of any specialist? The computer "people" as a whole conspire to keep the general populace ignorant of ways of communicating with their hardware in K-punkian liberating ways. Doctors keep common people ignorant of the functioning of their own bodies, and so on. In fact, couldn't K-punk be described as "distant, mystical, arcane"?

dominic
30-11-2004, 05:10 PM
i didn't think i was demonizing lawyers. if anything, i was offering a qualified defense. i think mark's position is overly abstract and in the final analysis untenable. but it's not without merit . . . . everything depends on how you slice and dice the issues. hannah arendt could in one breath dismiss lawyers as mere intellectual labors, and in another breath treat lawyers, a la tocqueville, as one of the few genuinely aristocratic elements in American society . . . . both nietzsche and heidegger considered a sophisticated legal system as symptomatic of cultural decline. praise the pre-socratics, damn the byzantines . . . .

and while k-punk would not approve of my overtly biographical, subjective take on "the trouble with lawyers," i like to let people know where i'm coming from when i think the info relevant

but letting people know where you're coming from invites comments, alas, that you get counseling to figure out where you're going

dominic
30-11-2004, 05:25 PM
Couldn't you say this of any specialist? The computer "people" as a whole conspire to keep the general populace ignorant of ways of communicating with their hardware in K-punkian liberating ways. Doctors keep common people ignorant of the functioning of their own bodies, and so on. In fact, couldn't K-punk be described as "distant, mystical, arcane"?

yes and no. yes, because specialization is the price of luxury, of not living in a city of pigs. it's an economic proposition. the specialist, by devoting his time to one matter, frees others to devote time to other matters. the result is that each is conversant in only one or two subjects, ignorant of all others.

no, if you're a radical protestant or gnostic, because priests are not necessary to access the truth about "god." the so-called spiritual counseling or mediation of the priest is in fact mystification. the priest may save others time and effort, but he offers no real truth. he trades in cheap comfort.

and no, if you're a radical republican, because all citizens should be conversant in the law and able to fend for themselves in matters political and legal (deliberate rationally about such matters). by yielding this ground to lawyers, people save the time and effort. avoid tedious detail. but at what price?

and unlike medicine and computer engineering, the law is not rocket science. the law, at least in its origins and principles, is simple, the embodiment of common morality, common sense, common norms.

be.jazz
30-11-2004, 07:51 PM
and no, if you're a radical republican, because all citizens should be conversant in the law and able to fend for themselves in matters political and legal (deliberate rationally about such matters). by yielding this ground to lawyers, people save the time and effort. avoid tedious detail. but at what price?
Why stop there? Why not require that individuals also be able to physically "fend for themselves" (food, protection, health...)? If you have a police force to protect you and supermarkets to feed you, why should an exception be made for the law & politics? Then again, I'm a Hylic.


and unlike medicine and computer engineering, the law is not rocket science. the law, at least in its origins and principles, is simple, the embodiment of common morality, common sense, common norms.
Medicine isn't complex, it's just that there's a lot of it.

dominic
30-11-2004, 09:19 PM
I'm a Hylic.

I'm not a pneumatic, and I ain't phlegmatic.

Generally melancholic. Very rarely choleric, still less sanguine.

In K-Punkian nomenclature, I'm probably a Spiritual.

&catherine
01-12-2004, 02:53 AM
There simply are no gods, at least not as traditionally conceived. But there can be no doubt as to the law's existence. Moreover, men have no real need of gods, but if they are to have justice they must also have law. And if they are to have a sophisticated society, if they are to live in any way other than as pigs, they will need written laws to organize their relations. And insofar as the law is written, there will be pages of law to study and read. Therefore, a certain class of citizens will always be required to fill this purpose. For not everyone will have the time, let alone the desire, to know the ways of the law . . . . But as for gods, nothing need be written, and therefore nothing need be read
No doubt as to the law's existence? In one sense - in the everyday manner of saying that 'there is such and such' - this is undisputable. But in another sense, the law has no material existence. Which I find quite fascinating. It doesn't exist like a chair or a table. It produces effects insofar as we give it authority, but the law itself is never an obstacle to us. (Its effects might be - incarceration, for example - but it is only our abiding by the law that we bow to that produces restrictions upon us.) The relationship between religion and law is not so dissimilar after all. Both are adopted very pragmatically, also... Historically speaking, law and religion as organising principles for society are often bound up together.

The nature of Law is a strange thing... if you haven't already read them, Kafka's short parable "Before the Law" and the piece that Derrida wrote on it (also entitled "Before the Law", in a collection called Acts of Literature) are incredible 'illustrations' of our relationship to the law, and the question of how it exists and from where the Law originates... After all, there may be collections of precedents and common law, but what is it all 'founded' on? Perhaps these are too-philosophical questions, but I find them fascinating all the same.

I think I would find being a lawyer much too disconcerting. Attempting to make practical use of this entity (the law) that is commonly thought to be stable and constant, but which in reality is full of contradiction and without easily-understood 'origins', 'foundations'... Though perhaps this is just my proclivity for letting the philosophical get in the way of the practical that is showing through ;)

An interesting post, though. I find law fascinating.
(Mandatory plug: "Read Kafka!" ;) )

&catherine
01-12-2004, 03:01 AM
also, just as having a class of people devoted to religion serves to mystify divine matters, so having a class of people who specialize in law serves to mystify law.
Forgot to mention before: Kafka's story/parable "The Problem of Our Laws" is also highly relevant here.

Thanks for the posts - a number of my good friends are currently doing law degrees, so I've been looking at 'the problem of vocation' over their shoulders. You describe it well - "I can read and write, I can argue, so I may as well do law, at least it's something practical..."

&catherine
01-12-2004, 03:29 AM
Couldn't you say this of any specialist? The computer "people" as a whole conspire to keep the general populace ignorant of ways of communicating with their hardware in K-punkian liberating ways. Doctors keep common people ignorant of the functioning of their own bodies, and so on.

I do think that you can say this of most specialised knowledge, including that of academia. Extreme specialisation tends to kill societies. There are some quite convincing arguments put forward for this by John Ralston Saul (though I think he gets lots of other things quite wrong) - and so he holds that you can have doctors and services et al (contra the 'do everything yourself including policing the neighbourhood' option that someone suggested as the alternative to specialisation) while also having some sort of knowledge-sharing across disciplines. If everyone has only a pea-sized, blinkered view of the world, of their area of expertise, then there is really no 'society' to speak of, as there is no common ground... These are of course, systemic problems, rather than problems of 'individuals' per se (Ralston Saul has it that individualism is the necessary counterpart to a society whose logic is specialisation). Specialisation lends itself to the rule of technocrats and bureaucrats, after all.


In fact, couldn't K-punk be described as "distant, mystical, arcane"?
I don't really think so. The antidotes to specialisation are broad knowledge and interdisciplinary discussion, which Mark does a fairly good job of assisting, I find. Perhaps I'm only speaking for myself here, but I've found the k-punk blog and related locations in the blogosphere 'rhizome' to be educational experiences... It's encouraged me to look into theories and phemonena that I doubt I would have otherwise. I tend to want to read more when Mark expounds his positions through unfamiliar theory... It's hardly so difficult as to be impenetrable, in other words, though it may seem a little weird at first.

dominic
01-12-2004, 07:45 PM
Why stop there? Why not require that individuals also be able to physically "fend for themselves" (food, protection, health...)? If you have a police force to protect you and supermarkets to feed you, why should an exception be made for the law & politics?

Because on the radical republican theory (which I don't subscribe to, by the way), participation in law & politics allows citizens to develop their capacity for reasoned discourse and to exhibit public (as opposed to private) virtue . . . . Nor am I suggesting that K-Punk would take this view. Rather, I suppose I was trying to make sense of his attack on priests & lawyers -- tease out the logic of the attack -- and then respond

dominic
01-12-2004, 08:11 PM
The relationship between religion and law is not so dissimilar after all. Both are adopted very pragmatically, also... Historically speaking, law and religion as organising principles for society are often bound up together.

Yes, law and religion are definitely bound up together as organizing principles for society. And you can throw "morality" into the equation as well. Positivism (Austin, Holmes, Hart) attempted to separate law from religion and morality, but at the moment the most influential legal theorists (Dworkin, Llloyd Weinreb, Ernest Weinrib) argue otherwise, to one degree or another

However, precisely because so little is known about the origins and foundations of law and religion, it's hard to say whether they came into being as a result of "pragmatic adoption." That's a major question for philosophic speculation. However, I'd say that the law, once in being, develops both conceptually and pragmatically = pragmatic conceptualism

dominic
01-12-2004, 08:17 PM
I find law fascinating.

I find legal theory fascinating, but not law per se

At the end of the day I prefer political philosophy, critical theory, etc

But when it comes to writing, I'm much better at short essays or legal briefs than research papers or hardcore scholarly articles. Accordingly, the choice of profession

dominic
01-12-2004, 08:22 PM
if you haven't already read them, Kafka's short parable "Before the Law" and the piece that Derrida wrote on it (also entitled "Before the Law", in a collection called Acts of Literature) are incredible 'illustrations' of our relationship to the law, and the question of how it exists and from where the Law originates...

I'll put them on my reading list, though I can't guarantee they'll be near the top. Feel that I need to read a lot of other authors before returning to Derrida. Think I've read 3 or 4 of his books. I realize he's written 10 times that many, but I'm not a completist . . . . Also, HLA Hart is pretty good when it comes to speculating about the origins of law. Somewhere in the middle chapters of "The Concept of Law"

dominic
01-12-2004, 08:28 PM
I tend to want to read more when Mark expounds his positions through unfamiliar theory

agreed. this is why i intend to read spinoza and zizek.

&catherine
03-12-2004, 04:00 AM
I'll put them on my reading list, though I can't guarantee they'll be near the top.

Extra plug - the Kafka stories are very short ;) "Before the Law", one page, "The Problem of Our Laws" two... Of course, you'll be pondering them for years. (I have been, anyway.) The strength of the Derrida that I mentioned is precisely that it alerts you to the opaque profundities in Kafka's parable(s). It's easy to read short things and then just brush them aside, I often find - it's easy to assume that small meals are digestible. Derrida points out that you might just be eating rocks ;)