Judging justice

This short parenthesis in the discussion of politics can be

justified by the fact that justice is the object of both

politics and law. The practice of law is the practice of politics

on a smaller stage. Political action, involving a new concept of

law and justice, closer to the environment of industrial work,

established not only that all (or almost all) were equal in

respect to the law, but also that justice would take its own

course. In the course of history, the various moments of change

in the pragmatic framework were also moments of change in regard

to the justice system. In incipient political praxis, rulers

administered the law. Even today, a governor or president is the

court of last resort in some legal cases. And law, like

politics, relies on rhetoric, on language as the mediating

mechanism of concepts.

In the course of history, the various moments of change in the

pragmatic framework were also moments of change in regard to

what today we call justice. The more powerful applied their own

ideas of law under circumstances of incipient human practical

experiences. It was the role of the appointed leader, whether in

the magic of ritual, in tribes, in religion, in forms of

settlement, to judge matters under dispute. Law focused on

agreements, commitments, and integrity of the human body, of

property, of goods, and of exchange. In time, the distance

between what was done, affecting the balance of people's rights

and obligation, and the reaction to it increased. A whole body

of mediating elements, religion included, governed action and

reaction. Just as myth and ritual did in their ways, major

religious texts testify to how rules of living together and

preserving life were established and implemented. The scale of

society, reflected in the nature of the pragmatic context,

played a crucial role in the process in respect to what was

considered a crime, the type of punishment, and the swiftness of

punishment.

What is of concern here is the change from the legal code

elaborated in the framework of literacy and legal experience in

the civilization of illiteracy. The institution of law and the

professions involved in it embody expectations of justice under

assumptions of efficiency pertinent to human practical

experiences. New lands were discovered, new property was

created, and machines and people made higher productivity

possible. Rights were fought for, access to education opened, and

the world became a place of new transactions for which the law

of the land, inspired by natural right, no longer sufficed. It

was in this context that literacy stimulated both the practice

of legality and the inquiry into the nature of human rights and

obligations. But it is also in this context that the language of

legal practical experiences commenced its journey into today's

legalese that no ordinary person can understand. Raskolnikov, in

Dostoyevsky's Crime and Punishment, criticized the "legal style"

of those educated as lawyers. "They still write legal papers

that way." Though he remarks that the writing had "a kind of

flourish to it..., yet look how illiterate his writing is." The

criticism could be glossed over, due to its context, if it were

not for an interesting remark: "It's expressed in legal language

and if you use legal language, you can't write any other way."

Trying to cope with ambiguity in language forces the lawyer to

look for precision.

The equivocal condition of the practice of justice is that law

originates in the realm of political experiences, but needs to

be implemented free of politics, i.e., regardless of who is in

power. The blindfolded goddess holding the scales of justice is

expected to be objective and fair. The separation between

judicial and governing entities is probably the highest

achievement of the political system based on literacy. But it is

also the area where, under circumstances of practical

experiences different from those based on the underlying

structure of literacy, the need to change is critical. This

applies to new means of maintaining a just system for people

less affected by the subjectivity of those holding the balance

of power, and more by the ability to process information

relevant to any object of dispute. The blindfolded goddess

already uses X- ray vision in order to substantiate claims and

counterclaims. Modeling, simulation, expert genetic testimony,

and much more became part of the justice routine. Each party in

a trial knows in advance what type of jury best serves its

interests. The context for all these changes sheds light on

their political meaning. If the practical experience of

politics and justice are disconnected, the effectiveness of both

suffers.

Politics stimulated change in respect to the perception of

democracy, civil rights, political authority, and welfare. It

demystified the origin, function, and role of property, and

introduced a generalized level of relativity and uniform value.

Law, on the other hand, supposed to protect the individual,

should therefore be less inclined to trade off fairness for the

lowest common denominator. Comparing this ideal to real legal

practice is an exercise in masochism. The ever increasing, and

fast increasing, human interaction via market mechanisms was

followed by instances of conflict and expectations of

negotiation. Without any doubt, the most pervasive mediating role

is played in our day by legal professionals.

Due to its own self-interested dynamics, the legal profession

insinuates itself in every type of practical experience, from

multinational business to relations between individuals. Lately,

it is involved in finding a place for itself in the world of new

media, involving copyright laws and private rights versus public

access. So one cannot say that law, as opposed to politics, is

not proactive. The problem is that it is so in a context bound

to literacy, and in such a way that style transcends substance.

Latin, reflecting the origin of the western legal experience,

used to be the language of law. Today, few lawyers know Latin.

But they are well versed in their own language.

Legalese is justified by the attempt to avoid ambiguity in a

given situation. There is nothing wrong with this. What is wrong

is when legal language and the procedures encoded in legal

language do not meet the pragmatic expectation, which is justice.

Law and justice are not the same thing. A good case in point is

the recent case of the State of California vs. O. J. Simpson.

The spectacle of the legal procedure showed how a literate

practice ended up convoluting justice. In fact, literate law is

not meant to serve justice. Its purpose is to use the law to

acquit a client. Allan Derschowitz claimed that the lawyer's

duty is to his or her client, not to justice. This statement is

far from the expectation that each member of society has.

Therefore law loses its credibility because it undermines the

notion of the social contract.

Some might say that this state of affairs is nothing new. Even

Shakespeare criticized lawyers. Far from being a wholesale

attack on the profession, the description I have given deserves

to be contrasted to the possibility of effective judicial

mediations in the civilization of illiteracy. Since changes

occur so rapidly, the law of yesterday rarely applies to new

circumstances created today. It used to be, people often find

themselves reminiscing, that laws and rules (the Ten

Commandments, at least) were expected to last and be respected,

in their letter-which was carved in stone-and spirit, forever. No

one will argue that justice is not an eternal desideratum. But

achieving it does not necessarily mean that laws and the methods

of lawyers are eternal. Some actions that society once

accepted-child abuse, sexual harassment, racial

discrimination-are now considered illegal, as well as unjust.

Other crimes (whistling on Sundays, kissing one's spouse in

public, working or operating a business on Sunday) might still be

in some legal books and locally observed, but they are no longer

considered instances of law- breaking. The result of changes

brought about by changing pragmatics is the realization people

have that there is no stable frame of reference, either for

morality (as it is subject to law and law enforcement) or for

legality.

Did lawyers create this situation? Are they a product of new

human relations required by the new pragmatics? Who judges the

legal system in order to determine that its activity meets

expectations? There is no simple answer to any of these

questions. If justice is to affect human practical experiences,

it has to reflect their nature and participate in defining its

own perspective in respect to the rights that people integrate

in new practical experiences of self-definition. It is all well

and good for the legal system to use non-literate means, such as

DNA evidence, videotapes, and access to legal information from

around the world via Internet. But if they are then subjected to

literate pettifogging, all this effort is to no avail.

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