9780060735241

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

by
  • ISBN13:

    9780060735241

  • ISBN10:

    0060735244

  • Edition: Reprint
  • Format: Paperback
  • Copyright: 7/8/2009
  • Publisher: HarperCollins Publications

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Summary

We are obsessed with watching television shows and feature films about lawyers, reading legal thrillers, and following real-life trials. Yet, at the same time, most of us don't trust lawyers and hold them and the legal system in very low esteem. 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. With a lawyer's expertise and a novelist's sensability, 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.

Author Biography

Thane Rosenbaum teaches courses in human rights, legal humanities, and law and literature at Fordham Law School. He is also an award-winning novelist. His essays appear frequently in the New York Times, Wall Street Journal, Los Angeles Times, Washington Post, and other national publications. He lives in New York City with his daughter, Basia Tess

Table of Contents

Introduction 1(178)
1 DOING THE RIGHT THING: THE SPLIT BETWEEN THE MORAL AND THE LEGAL
11(19)
2 A NEW PARADIGM OF MORAL JUSTICE
30(18)
3 POUND OF FLESH
48(13)
4 STORY AS REMEDY
61(18)
5 THE VARIOUS FACES OF GRIEF
79(13)
6 ABORTED TRIALS AND LYING UNDER THE LAW
92(22)
7 THE BEST-KEPT SECRETS OF ZEALOUS ADVOCATES
114(25)
8 FORBIDDEN EMOTIONS IN A WORLD OUT OF ORDER
139(18)
9 JUDGES WHO FEIGN NOT HAVING FEELINGS
157(22)
10 APOLOGY AS MORAL ANTIDOTE TO THE LEGAL DISEASE 179(15)
11 APOLOGIES IN PRACTICE 194(18)
12 RESTORATION OR REVENGE 212(14)
13 REPAIR IN PRACTICE 226(20)
14 THE NON-DUTY TO RESCUE UNDER AMERICAN LAW 246(12)
15 RESCUE AS MORAL IMPERATIVE 258(8)
16 THE LAW'S PREFERENCE FOR THE BODY OVER THE SOUL 266(19)
17 FRUSTRATED LAWYERS AND THE PUBLIC'S DISCONTENT 285(11)
18 THE ARTIST AND THE LAW 296(17)
CONCLUSION 313(6)
Afterword 319(10)
Acknowledgments 329(2)
Notes 331(20)
Index 351

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.

Excerpted from The Myth of Moral Justice: Why Our Legal System Fails to Do What's Right by Thane Rosenbaum
All rights reserved by the original copyright owners. Excerpts are provided for display purposes only and may not be reproduced, reprinted or distributed without the written permission of the publisher.

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