Politics of Meaning Draft Platform: Plank on Law

By Gabel, Peter | Tikkun, September/October 1996 | Go to article overview

Politics of Meaning Draft Platform: Plank on Law


Gabel, Peter, Tikkun


POLITICS OF MEANING DRAFT PLATFORM: Plank on Law

This plank was prepared by Peter Gabel, Thane Rosenbaum, and Nanette Schorr.

The legal system is arguably the most important public arena in our society; it defines how we are expected to relate to one another within civil society and how the government is expected to treat us as citizens. It also shapes our understanding of the meaning of injustice and justice, and therefore profoundly influences our society's ethical consciousness, our perception of right and wrong in human relations. While other aspects of our culture--in particular, religion--also speak to these issues in important ways, it is law and the legal system that provide the society's "bottom line" on matters of ethics and social justice, even in defining the permissible scope of religious practice and influence, and the public relevance of other non-legal sources of ethical values.

The ethical understanding reflected in our present legal system is heavily tilted toward validating individualism, selfishness, and materialism, and shows little concern for fostering a sense of community or a spirit of caring for the well-being of others or for the natural environment. This basic individualistic orientation is reflected in the following core elements of the legal system:

The basic rules of substantive law embodied in, for example, the laws of contracts, torts, corporations, and property, assume that people are essentially unconnected monads who wish to pursue their own self-interest in the competitive marketplace, and whose main social concern is limited to protecting their persons and property against unwanted interference by others. Even the Constitution, often thought to be among the world's greatest legal documents in securing social justice, provides no recognition of the human longing for community, for social connection, for mutual caring and recognition. Instead, the protections of the Bill of Rights are restricted to protecting the isolated individual or family against government incursion, oppression, and discrimination, protections that are very important, but that in no way provide a basis for challenging the selfishness and materialism that is otherwise largely legitimized by the rest of American law.

Dispute resolution takes place within the framework of an adversary system which defines differences as antagonistic clashes of conflicting interests, foster hostility and mutual deprecation, and normally exclude any community interest in the resolution of disputes beyond the self-interested goals of the litigants themselves. The adversary process is characterized by the assumption that all participants should treat each other with skepticism and mistrust, and that justice is best served by the use of rules of evidence that are limited to the proof of empirically verifiable facts. As such, the underlying social meaning of disputes is presumed to be "subjective" and irrelevant; healing underlying social causes of an injury is not considered to be an aspect of legal justice; and empathy, compassion, and forgiveness are neither fostered by, nor relevant to, the legal process.

In their training, and in the disciplinary and ethical rules that govern the legal profession, lawyers are encouraged and even to some extent required to ignore ethical considerations beyond the narrow self-interest of the client. Legal education is almost exclusively directed toward the technical manipulation of specialized professional rules; the best students are seen as the ones who can demonstrate their capacity to shape precedent to argue for any side; no part of a law student's education is directed toward instilling in the student an obligation to promote the creation of a more humane, more just, or more caring society. The ethical rules of the profession reinforce the view of the lawyer as a hired gun with no transcendent ethical consciousness: the "duty of zealous representation," for example, virtually requires the lawyer to not allow his or her own ethical concerns to interfere with the zealous legal pursuit of the clients' ends, irrespective of the impact of these ends on others, on the community as a whole, or on the environment. …

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