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.