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The Basic Unreality of Law

"Our laws were written a generation ago, and

to the needs and demands of today's competitive world."

interview article: John Wells, Nation's Chief Mediator Remains

Suffused in Neutrality by Harry Bernstein dated: 2/19/95, p.M3

The Black or White nature of Law

Law and the legal system are extremely poor guides for running our day to day lives, for dealing with the everyday complexities of modern life. This is primarily because the law cannot recognize new situations, or unintended happenstances. Serendipitous circumstances are anathema to law. For law to function as law it must prescribe and proscribe very specific behavior --- the do's and don'ts must be specifically laid out. For this to happen, things must be known and anticipated in advance. Since new things --- things which never happened before or which have not been experienced by the relevant humans involved in dealing with the things cannot be known in advance, the law is completely inadequate and unprepared to guide us in our behavior with reference to these new things.

Moreover, there will always necessarily be a time lag on the writing of laws, indeed, legislation or any regulations, in general. That is, they will always be written down after the fact --- after the occurrences which necessitated their writing have already occurred. And presumably, the occurrences which caused the laws to be written in the first place, have occurred more than once. Otherwise, it would be foolish to write legislation to cover an event which is only known to have occurred only once, or which almost never occurs. Why have a formal written law for something which almost never has to be dealt with? It seems only reasonable that relevant law should only be created for behavior and actions or inactions that society really does want to prescribe or proscribe, and which is relatively recurrent in experience --- recurrent enough to warrant a law. So something which is extremely unique, does not lend itself to being able to be covered by law, reasonable law, that is. Furthermore, the main point of this paragraph is to show that law will always be untimely to guide humans in novel situations. Therefore, it is not a good guidebook for dealing with reality --- reality which time and again is composed of many unanticipated complexities --- reality requiring immediate judgement, decisions, and corresponding actions --- actions made in real time, not after we've had the benefit of waiting to pass a law.

Now individuals with common sense know what I have stated here is true. But why then do we time after time act stupid, and behave as if we expected law to be a realistic, and accurate reflection of reality. It never has, and never will! And any intelligent person knows this, even lawyers. It's just that it doesn't serve their interests to openly reinforce or recognize this fact. That is, the fact that law suffers from an almost irreconcilable contrast with reality --- it's basic nature is unreality.

As if the above noted unrealistic qualities of law were not bad enough, law by its very nature deals only with a black or white reality. That is, for the most part it does not or cannot deal with shades of gray. A legal state described by law must be either this or that. It cannot be only a little bit this or that, or composed only somewhat of this or that. To be properly considered as legal or illegal, the act, inaction, or quality or state of behavior covered by the law must have been either-or characterized --- that is, it is either legal or illegal. If an act is only 5% or even 1% illegal, then it is actually 100% illegal because degrees of guilt or innocence are irrelevant except for sentencing. The quality of being illegal is fully attained if only one iota of an act can be deemed illegal.

Let me explain. I remember learning an important defining characteristic about the law when I was a teenager. Way back then in a California city a policeman who said he "clocked me" for speeding in the space of half a very, very short block, issued me a traffic citation which I decided to fight in court. My car was a very poorly running, very inadequately maintained '50 Chevy --- a typical, ill-financed, teenager's rattletrap in the early '60s. The officer said I was going approximately 55 mile per hour in a posted 25 mile zone. Now this was extremely unlikely to have occurred in the way the officer recorded the so-called facts. The half-block in question was only about 150 feet in distance. And before, I traveled that distance to a waiting red-light at the nearest intersection where as I was stopped waiting for the light to turn green so I could go, there was an earlier stop sign that I had obeyed before getting to the aforementioned intersection. I know these facts because it was only a few blocks from where I lived; and it was the main route I almost always traveled to get home from wherever I was coming from. Furthermore, I was completely aware at the earlier stop sign that there was a police car right behind me.

The reason I was fighting the ticket is because I was extremely upset with the arbitrary, high-handedness of the officer alleging facts and a speed which was almost a physical impossibility to have been true, at least to the extent as described by the officer. I told my story outlining the facts as mentioned here to the judge, who acted as if he believed me. He then asked,"Well, if you weren't going as fast as the officer put on the ticket (55 mph); then how fast were you going. Naively foolish, and not wanting to seem unreasonable or totally without blame, because I may have been speeding or at least going faster than 25 mph, I conceded that I may have been going 26 mph; but I was adamant that there was no way possible that I could have been going 55 mph with that car in that short distance from a dead stop. To my surprise, the judge quickly found me guilty, and fined me. Dumbfounded, I asked why was I guilty when he knew and I had proved that it was impossible for the officer to have told the truth --- when I had clearly shown that it was most unlikely that I could have been going 55 mph in that car at that time. The judge replied that was true; but that I myself had freely admitted that I had broken the law when I told him that I was probably going 26 mph. Since the law only authorized 25 mph; the law didn't care that I had just barely broken it, or that the officer had severely muffed the case. The fact of the matter was that as far as the law was concerned I was speeding, even if only going 1 mile per hour faster that the speed limit.

This incident played a key role in shaping to this day my attitudes about the law. I realized from that moment on that there could never be any compromise with the law. The law will never adequately deal with reality --- it will always be an all or nothing proposition. Therefore, you have to flatly deny it, whatever it alleges, if you want to have any hope of winning if wronged by the law. This is so because it cannot deal with any shades of gray, or any ambiguous complexities of the situation. It's like you can't be just a little bit pregnant, you either are or you aren't. This little true story shows the law will always be imprecise and inadequate for dealing with reality. Where it is precise is that if you're caught one step over the line regardless of the circumstances, you're guilty, and you're snared no matter what the facts and or exigencies are.

It's a game of Semantic Technicalities

The other curious and relatively absurd characteristic about Law is that the current practice of so-called good lawyering in America today treats it as a "game." That is, instead of being an institution set up to preserve, protect and ensure justice for all those governed; it has become a competition --- much like a sporting event. Currently accepted best practices of lawyering have become established as a game played according to seemingly nonsensical, abstruse, and arcane rules, wherein truth and justice are totally unnecessary to the outcome of legal proceedings. And if truth and/or justice do occur; it is completely and entirely incidental --- that is, it wasn't the main objective of the lawyer participants, nor was such an outcome planned for. If truth and justice do occur in any judicial proceedings to construct and/or interpret the law, to determine guilt or innocence, or to pass judgement, they only occur as accidental, unintended by-products of the whole legal process as the "game" plays itself out.

What is the bottom line on what the above means? It means to the extent truth and justice do occur in our legal system in any significant way; it is a total accident, purely an accompanying secondary-type outcome. The serendipitous emergence of truth and justice are essentially outcomes which the main players: lawyers and judges, never sought nor intended.

Oh, yes! They'll tell you that all they want is truth, justice, and the American way. But that is only public posturing designed to keep you thinking that's what they really stand for, and what they really are trying to accomplish. However, it has to be total, unadulterated B.S., because they are playing the game by rules which almost by their very nature make it impossible for truth and justice to emerge.

The rules adhered to by "good" lawyers and judges give us certainty. They give us specificity. They give us prescribed and proscribed behavior with consequences, etc. But they don't give us common-sense application and judgement for solving and dealing with the real problems of day-to-day living in America today.

Legal outcomes should function as guideposts and stability markers which emerge from our legal system to make our lives better. They should help us live together and better get along with each other. That is, the laws should be for man, and they should contribute something positive and helpful for our existence --- not stand as obstacles to better living.

Lawyers, judges, and the legal system they represent are supposed to help society --- not hinder it. They are supposed to make our social condition --- our pluralistic, heterogeneous living "better" and "more just" for all. Or at least this should happen for the greatest number of our democratic majority --- those who are supposed to have in their majority consented democratically to be governed by the law. In this context, we should always remember that law is fundamentally of, by, for, and about the people --- those who have consented to be governed by it. And much to the dismay of many lawyers and judges; the opposite is not true. That is, people are not supposed to be made in the image of the law. But rather the law must constantly be made in the image of what is right, beneficial, helpful, "good" for the people. The law exists for the people; not the people for the law! Only a weirdo, legalistic technocrat who has lost all contact with his human condition could get this wrong.

If laws are supposed to be useful in any way, shape, or form for human beings; they must be helpful. That is, they should help the persons who are required to live under the law --- a law which get this, is supposed to be from them. Law is not for the lawyers and judges, as we said, it is supposed to be for the people. Therefore, law must be primarily constructed and applied in such a way that it actually helps the greatest number of the consensually governed to live together and meet the exigencies of their everyday lives. This certainly demands that truth and justice should again be made preeminent, and in the public interest. Therefore, we have to find our way back to a time when this is the way it was. Somehow, the law has become so bastardized and distorted that it has lost its way. Process and form have taken precedence over the original objectives and reality, and what should be the legitimate ends of a truly helpful and beneficial justice system.

Consider the alternatives that instead we condition ourselves to accept semantic technicalities, or play little procedural semantic word-games to render judgements --- judgements which all of us must live under --- no matter how ridiculous, or how much worse they make our lives. If we allow this; then law has indeed turned on society! An over-legalistic commitment to process and rules, which by their very nature have lost touch with reality, or lack any semblance of usefulness to human beings, is a legal system which is bound to fail. And it is failing. If it wasn't we wouldn't be experiencing the ever-increasing avalanche of new material, emerging almost daily to lend credence to and support the basic themes and objectives of this book.

Along with the idea that good lawyering today is a game of semantic technicalities, there are many examples which show that considerations of process and form are indeed taking precedence over more substantive concerns with what is legally fair, just, and "good" for society.