What’s Justice Got To Do With It?

The problem with lawyers can be expressed in three words – Truth, Justice, and Winning. Simple sounding words alright but words that govern a great deal of what transpires in this American society in the guise of civility. The three words and their opposites follow us through life like a pack of hounds. Winning has become all in this competitive American society. Whatever it takes to win is the battle cry. Children are conditioned almost from birth to compete at whatever activity they engage in and to achieve it at whatever cost. We have popular sayings to characterize both poles of the dynamic – winners and losers. Champs and chumps. And as the memorable Vince Lombardi put it, “Winning isn’t everything, it’s the only thing.”

When lawyers convene in a courtroom the word Winning looms like a scimitar. Forget about Justice – it’s all about winning. If lawyers don’t win they will soon be out of work not unlike coaches of losing professional sports teams. In fact, court trials are not unlike sports events as each side competes for the same trophy – not always Justice but, always and ever, Winning. Are there two or more truths in these matters? Truth is irrelevant.

What this Sophistry does is reduce Justice to a very low status. Seeking Winning over Justice naturally demeans the legal processes and, even, worse destroys public belief and faith in the fairness of civil justice and civilized recourse. This is why we must have ACLU lawyers and the other exceptions who fight bravely and intelligently for social justice and a manifestation of Truth. On the other hand, those who vigorously oppose the ACLU and its lawyers are just as interested in defending a vision of society that does not necessarily include Truth or Justice but generally advantage and venality. Of course the irony is that those hired to oppose the ACLU are also lawyers.

According to social philosophers, Peter Berger and Thomas Luckmann, “reality is socially constructed”, thus we find ourselves in courtrooms confronted with conflicting realities as constructed by the opposing sides. These combating realities are presented as Truth, so help us God. It is not as much legal philosophy being played out as it is a pathology. What we are witnessing is sociopathic behavior which destroys the social contract that has kept this country on a more-or-less even keel since the end of the “Great Depression”. I was recently informed by a lawyer that there is no Social Contract. I took it he meant that it’s, “everyone for themselves, it’s all “dog-eat-dog”. This is the socially constructed reality being played out in courtrooms today.

As the philosopher Harry G. Frankfurt so elegantly put it, “The most irreducibly bad thing about lies is that they contrive to interfere with, and to impair, our natural effort to apprehend the real state of affairs.” Absent Truth, the “real state of affairs” is rendered irrelevant. There cannot be Justice in this, and in the end the most serious moral flaw in the adversarial legal system is the making of Truth simply another victim. What kind of a world will we then have if the liars prevail?

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