The Myth of Moral Justice

by ROSENBAUM THANE

• ISBN13: 9780060188160
• ISBN10: 0060188162
• Format: Hardcover
• Copyright: 2004-04-07
• Publisher: HarperCollins Publications

Summary

American culture is obsessed with the law, the legal system, and lawyers. Much in our everyday lives revolves around the law, and we are bombarded daily by cultural images of lawyers and the legal system at work. We indulge in dramatic television shows and feature films about lawyers, we read legal thrillers, and observe trials as they unfold. Many of us wish for our children to attend law school and become lawyers. At the same time, most people report that they don't trust lawyers and hold them and the legal system in very low esteem. Those who have had unfavorable experiences with the law have walked away bitter and resentful. Some have observed that lawyers operate according to their own professional worldview, one that is emotionally detached and unfeeling, overly logical, technical, narrow, bureaucratic, and insensitive to basic human emotions and moral principles. We are, paradoxically, both fascinated and repulsed by our legal system. The dramatic allure of judgment keeps us enthralled; the absence of moral conviction in the law makes us furious. 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. Individuals seek out lawyers and enter courtrooms because they have an emotional grievance as well as a legal complaint. They expect the law to do the right thing. Yet our legal system, bent on separating the legal from the emotional, willfully ignores basic moral criteria. As a result, the justice system undermines truth, perpetuates secrets and lies, prevents victims from telling their stories, promotes adversarial enmity over community repair, and fails to equate legal duty with moral responsibility. Legal outcomes that make sense to lawyers and judges feel simply wrong to most people and enrage others. With a lawyer's expertise and a novelist's sensibility, 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. Rosenbaum reinforces his themes with artistic representations of lawyers and legal systems from the classic works of Shakespeare, Charles Dickens, and Franz Kafka, along with various important feature films that illuminate why our legal system fails to do what's right.

Author Biography

Thane Rosenbaum teaches courses in human rights, legal humanities, and law and literature at Fordham Law School.

Table of Contents

Introduction	p. 1
Doing the Right Thing: The Split Between the Moral and the Legal	p. 11
A New Paradigm of Moral Justice	p. 30
Pound of Flesh	p. 48
Story as Remedy	p. 61
The Various Faces of Grief	p. 79
Aborted Trials and Lying Under the Law	p. 92
The Best-Kept Secrets of Zealous Advocates	p. 114
Forbidden Emotions in a World out of Order	p. 139
Judges Who Feign Not Having Feelings	p. 157
Apology as Moral Antidote to the Legal Disease	p. 179
Apologies in Practice	p. 194
Restoration or Revenge	p. 212
Repair in Practice	p. 226
The Non-Duty to Rescue Under American Law	p. 246
Rescue as Moral Imperative	p. 258
The Law's Preference for the Body over the Soul	p. 266
Frustrated Lawyers and the Public's Discontent	p. 285
The Artist and the Law	p. 296
Conclusion	p. 313
Acknowledgments	p. 319
Notes	p. 321
Index	p. 341
Table of Contents provided by Ingram. All Rights Reserved.

Excerpts

The Myth of Moral Justice
Why Our Legal System Fails to Do What's Right

Chapter One

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 secondchance, 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 anavalanche of moral corruption and cynicism -- all courtesy of thelegal system. They see the artifice that shadows the spectacle of a trial, the breaches of professional duty and lapses in humancharacter, 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 whatthe jury is exposed to: manipulated procedural and evidentiaryrules, 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 isno justice, the rich win, the poor are powerless. We becometired of hearing people lie. And after a time we becomedead. We think of ourselves as victims, and webecome victims ... We doubt ourselves, we doubt our beliefs,we doubt our institutions. We doubt the law. Buttoday you are the law. Not some book. Not some lawyer ...These are just symbols of our desire to be just. They arein fact a prayer, a fervent and frightened prayer ... Inmy religion we say, "Act as if thee had faith." Faith willbe given to you. If we are to have faith in justice we areonly 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 teachingsthat are embodied in both law and religion -- the consciousnessand ideals that are invoked in cathedrals and courthouses -- arebasically 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, althoughmost of us wish to believe otherwise.

We assume that an exalted sense of rightness, and knowingthe proper standards for engaging in the world and dealing withour fellow human beings, is what clergy and judges have in common.But men of the cloth and men who sit on judicial benchessee the world quite differently from one another. And it's notmerely their elevated pedestals that make it so. Let us not befooled by the robes: priests, rabbis, ministers, imams, and juristsmay dress the same, but they are not the same. Uniforms can bedeceiving; the mirage of uniformity -- despite the fact thatjudges wear black robes and clergy are sometimes dressed inwhite -- may be more of a caveat than sartorial coincidence. And yes, courts and churches are decorated with similar props andvestments. But, once more, the similarity here is only one of interiordesign. The decor is intended to elicit a particular emotion,an aura that isn't always deserved, but does commandrespect.

Despite The Verdict's spirited call to faith, the faith that animatesreligion does not exist in the law. In the film, the jury exercisesfaith in its own judgment, ultimately rejecting what itsees as the immoral shenanigans of a system that plays by itsown blighted rules. But, of course, The Verdict is a movie, andthe jurors are only actors. Most actual juries don't have the kindof moral courage to flagrantly ignore the instructions of thejudge, and even if they did, the judge would ultimately nullifytheir verdict.

In another Sidney Lumet movie, in fact, his first featurefilm, 12 Angry Men (1957), the jury once more commands centerstage -- not in the jury box, but in the jury room itself. It is a filmthat deals with the conflicts and deliberations that precede theactual verdict. It is a fictional, inside glance of what the law lookslike as it arrives at its judgments. But unlike the jury in The Verdict,the one in 12 Angry Men prevailed over its own human failingsand redeemed itself by exposing emotional truths that thetrial would never have uncovered. For reasons of prejudice andexpediency, the jurors, at the outset of their deliberations, presumethat the defendant is guilty, even though, in a criminaltrial, innocence is always presumed until proven otherwise. Thedeliberations in 12 Angry Men transform the jury from one thatshares a nonchalant certainty about guilt to one that eventuallysees more complexity in the story of this defendant, which leadthem to find him innocent. One juror, played by Henry Fonda,calls attention to other values, motives, and events that his colleagueshad been willing to overlook. Ultimately they arrive at averdict 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 systemor 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 justiceon a system that is equally disposed to injustice.

The Myth of Moral Justice
Why Our Legal System Fails to Do What's Right. Copyright © by Thane Rosenbaum. Reprinted by permission of HarperCollins Publishers, Inc. All rights reserved. Available now wherever books are sold.

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Excerpted from The Myth of Moral Justice: Why Our Legal System Fails to Do What's Right by Thane Rosenbaum
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