The problem with lawyers and law; truth and justice are many and varied, and not at all what we might otherwise think. Consider the following observations:

Montaigne

Montaigne

King Ferdinand, when he sent colonists to the Indies, wisely provided that no students of jurisprudence should accompany them, for fear that lawsuits might breed in this new world, this being by nature a science generating altercation, and division; judging, with Plato, that lawyers and doctors [of law] are a bad provision for a country.” ― The Complete ESSAYS OF MONTAIGNE, Translated by Donald M. Frame, Stanford University Press, Stanford, California; Copyright 1943 by Donald M. Frame, renewed 1971.  Copyright © 1948, 1957, and 1958 by the Board of Trustees of the Leland Stanford Junior University, Page 816.

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“Why is it that our common language, so easy for any other use, becomes obscure and unintelligible in contracts and wills, and that a man who expresses himself so clearly, whatever he says or writes, finds in this field no way of speaking his mind that does not fall into doubt and contradiction? Unless it is that the princes of this art, applying themselves with particular attention to picking out solemn words and contriving artificial phrases, have so weighed every syllable, so minutely examined every sort of combination, that they are at last entangled and embroiled in the endless number of figures and in such minute partitions that they can no longer fall under any rule or prescription or any certain interpretation.” ― The Complete ESSAYS OF MONTAIGNE, Translated by Donald M. Frame, Stanford University Press, Stanford, California; Copyright 1943 by Donald M. Frame, renewed 1971.  Copyright © 1948, 1957, and 1958 by the Board of Trustees of the Leland Stanford Junior University, Page 816.

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“Who has seen children trying to divide a mass of quicksilver [mercury] into a certain number of parts?  The more they press it and knead it and try to constrain it to their will, the more they provoke the independence of this spirited metal; it escapes their skill and keeps dividing and scattering in little particles beyond all reckoning.  This is the same; for by subdividing these subtleties they [lawyers and doctors of law] teach men to increase their doubts; they start us extending and diversifying the difficulties, they lengthen them, they scatter them.  By sowing questions and cutting them up, they make the world fructify and teem with uncertainty and quarrels, as the earth is made more fertile the more it is crumbled and deeply plowed.  Learning makes difficulties [Quintilian].” ― The Complete ESSAYS OF MONTAIGNE, Translated by Donald M. Frame, Stanford University Press, Stanford, California; Copyright 1943 by Donald M. Frame, renewed 1971.  Copyright © 1948, 1957, and 1958 by the Board of Trustees of the Leland Stanford Junior University, Page 816.

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“We give legal authority to numberless doctors [of law], numberless decisions, and as many interpretations.  Do we therefore find any end to the need of interpreting?  Do we see any progress and advance toward tranquility?  Do we need fewer lawyers and judges than when this mass of law was still in its infancy?  On the contrary, we obscure and bury the meaning; we no longer find it except hidden by so many enclosures and barriers.” ― The Complete ESSAYS OF MONTAIGNE, Translated by Donald M. Frame, Stanford University Press, Stanford, California; Copyright 1943 by Donald M. Frame, renewed 1971.  Copyright © 1948, 1957, and 1958 by the Board of Trustees of the Leland Stanford Junior University, Page 817.

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“It seems to me that with this complication and interlacing of language with which they [those possessing PhDs, Juris Doctorates, and other advanced degrees] beset us it turns out as with sleight-of-hand performers: their dexterity attacks and overpowers our senses, but it does not shake our belief at all.  Aside from this legerdemain, they do nothing that is not commonplace and mean.  For being more learned they are none the less inept.” ― The Complete ESSAYS OF MONTAIGNE, Translated by Donald M. Frame, Stanford University Press, Stanford, California; Copyright 1943 by Donald M. Frame, renewed 1971.  Copyright © 1948, 1957, and 1958 by the Board of Trustees of the Leland Stanford Junior University, Page 707.

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“I do not know what to say about it [lawyers and their trade], but it is evident from experience that so many interpretations disperse the truth and shatter it.” ― The Complete ESSAYS OF MONTAIGNE, Translated by Donald M. Frame, Stanford University Press, Stanford, California; Copyright 1943 by Donald M. Frame, renewed 1971.  Copyright © 1948, 1957, and 1958 by the Board of Trustees of the Leland Stanford Junior University, Page 817

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“We put one question, they [lawyers] give us back a hive of them.” ― The Complete ESSAYS OF MONTAIGNE, Translated by Donald M. Frame, Stanford University Press, Stanford, California; Copyright 1943 by Donald M. Frame, renewed 1971.  Copyright © 1948, 1957, and 1958 by the Board of Trustees of the Leland Stanford Junior University, Page 819.

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John Lukacs

John Lukacs

“The purpose of law is to maintain justice; the purpose of history is to establish truth.  What Dwight Macdonald wrote about the relationship of lawyer and novelist is worth noting by historians: “a lawyer qualifies negatively ―so he can’t be caught out later; but a novelist qualifies positively―to make his meaning not safer but clearer….”― Historical Consciousness, Copyright © 1968 by John Lukacs, Harper & Row, Publishers, Page 126.

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Edward Gibbon, 1737-1794

Edward Gibbon, 1737-1794

“In the practice of the bar these men had considered reason as an instrument of dispute; they interpreted the laws according to the dictates of private interest; and the same pernicious habits might still adhere to their characters in the public administration of the state.  The honour of a liberal profession has indeed been vindicated by ancient and modern advocates, who have filled the most important stations with pure integrity and consummate wisdom; but in the decline of Roman [and now, American] jurisprudence the ordinary promotion of lawyers was pregnant with mischief and disgrace.  The noble art, which had once been preserved as the sacred inheritance of the patricians, was fallen into the hands of freedmen and plebeians, who, with cunning rather than with skill, exercised a sordid and pernicious trade.  Some of them procured admittance into families for the purpose of fomenting differences, of encouraging suits, and of preparing a harvest of gain for themselves or their brethren.  Others, recluse in their chambers, maintained the gravity of legal professors, by furnishing a rich client with subtleties to confound the plainest truth, and with arguments to colour the most unjustifiable pretentions.” ― The Decline and Fall of the Roman Empire, Edward Gibbon, Volume I, 180 A. D. ― 536 A. D., Page 419, The Modern Library, New York, Random House.

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Fred Siegel

Fred Siegel

“…a judicialized politics tries to bypass public consent. Profoundly anti-democratic when it goes beyond vindicating the fundamental rights of citizenship, judicial politics alienates voters by placing public policy in the private hands of lawyers and litigants. And because rights are absolute, it polarizes by producing winner-take-all outcomes, in which the losers tend to feel embittered. The politics of rights displaces the Bill of Rights and subverts the constitutional design for self-government. In effective democratic politics, opponents must rely upon a public process of persuasion and deliberation; the politics of rights replaced that process with a judiciary whose swollen powers [bring] disrepute to the essential notion of rights even as it [undermines] public trust in government. Abraham Lincoln anticipated the plight of [today’s] voters in his first inaugural address:  “If the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation … the people will have ceased to be their own rulers [and armed revolution will follow sooner or later].” The Revolt Against the Masses, copyright © 2013 by Fred Siegel, Encounter Books, Page 176.

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Pierre Duhem, 1861-1916, Physicist

Pierre Duhem, 1861-1916, Physicist

“It is the care in minute exactness and precise analysis that distinguishes physical science from common sense.  It is this carefulness that gives to its laws a provisional and approximate character.  Everything we have just said about this character is, in some way, a commentary on this aphorism of Pascal: “Justice and truth are two points so fine that our instruments are too blunt to touch them exactly.  If they do make contact, they blunt the point and press all round the false rather than the true.”” ― Pierre Duhem, Essays in the History and Philosophy of Science, translated and edited, with introduction, by Roger Ariew and Peter Barker, Copyright © 1996 by Hackett Publishing, Inc., Page 109.

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John Lukacs

John Lukacs

“The law is a coarse net; and truth is a slippery fish.”  Yes, but the purpose of law has nothing to do with truth: it is the establishment of justice.  Truth and justice are not the same things, even though the pursuit of truth and the pursuit of justice may, on occasion, overlap.  But besides the question (or, rather, the obvious primacy) of truth over justice, there are other important differences between historical and legal evidences and thinking.  One is that law, after all ― inevitably and necessarily ― is a closed system, within its own definite rules and regulations.  For instance, it does not and should not allow multiple jeopardy: a case, when and if properly tried, is decided once and for all.  History (and our memory) is open and never closed; it specializes in multiple jeopardy: its subjects and people are rethought over and over again, and not even necessarily on the basis of newly found evidence. . . .  Another great difference ― I am again referring principally to Anglo-American law ― is the one between motives and purposes.  These two are regrettably confused because of the vocabulary and the practices of twentieth-century psychology and thought, the attribution of motive having become a pestilential habit [my italics].  But we must distinguish between the two.  Motives come from the past; purposes involve the pull of the future.  At its best, Anglo-American law will admit only a “motive” which has been, in one way or another, expressed; in other words, an actuality, not a potentiality.  (As Dr. Johnson said: “Intentions must be gathered from acts.”)  At its worst, unexpressed motives are sometime attributed and accepted in some courts on the basis of psychological characterization and other dubious “expertise.”  A proper comprehension of the essential difference between motives and purposes is an essential condition of the pursuit and of the protection of justice and of truth ― and of all historical thinking and speaking and writing.” ― Remembered Past; On History, Historians, and Historical Knowledge, by John Lukacs, Chapter I, Page 8, edited by Mark G. Malvasi and Jeffrey O. Nelson, ISI Books, Wilmington, Delaware, © 2005 ISI Books.

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“Justice is of a lower order than is truth, and untruth is lower than is injustice.  The administration of justice, even with the best intentions of correcting injustice, may often have to ignore or overlook untruths during the judicial process.  We live and are capable of living with many injustices, with many shortcomings of justice; but what is a deeper and moral shortcoming is a self-willed choice to live with untruths.  (All of the parables of Christ taught us to believe in truth, not in justice.)” ― Remembered Past; On History, Historians, and Historical Knowledge, by John Lukacs, Chapter I, Page 16, edited by Mark G. Malvasi and Jeffrey O. Nelson, ISI Books, Wilmington, Delaware, © 2005 ISI Books.

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“Facts” ― inevitably dependent on their associations and, more important, on their statements ― are not truths.  Their statements or expressions can come close to truths ― which is the best we can expect.  A “fact” is never absolute.  (Our very language reflects this.  “This is true” is not quite the same as: “This is the truth.”) ― Remembered Past; On History, Historians, and Historical Knowledge, by John Lukacs, Chapter I, Page 17, edited by Mark G. Malvasi and Jeffrey O. Nelson, ISI Books, Wilmington, Delaware, © 2005 ISI Books.

-End-

About Michael

Retired military officer; retired Air Force civil servant; retired executive, DS Information Systems Corporation; writer; researcher; reader and avid yachtsman.
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