Thursday, April 26, 2012

Dressed Up Like A Friar

My husband says I need to be “less academic,” which is a really funny thing to say to a person blawging within the confines of a university.

“Gretch, no one wants to read long passages from Shakespeare in a blog.  They’ll just skip over them.”

Hmm.  Perhaps he has a point.  And, upon reflection, it is actually a complex point. 

In fact, my long-suffering husband’s observation spawns two epiphanies. 

First, I am reminded that this advice is similar to what most practicing lawyers (and legal writing professors) will tell would-be lawyers: “Do not use block quotations.  They are too overwhelming.  Sure, the language of the statute you are asking the court to interpret is incredibly important.  We have to get the words just right.  But if you stick a big block of quoted text on the page, no one will read it.  Instead, you have to spoon-feed the relevant bits to your reader in digestible morsels.”

Second, my husband’s observation suggests that a successful blog/blawg involves a special kind of deception.  If the thing is going to be more than a narcissistic exercise, it has to involve something bigger than a person’s private musings.  You have to trick people into thinking that the exercise is not all about you.  But if anyone other than a handful of sympathetic compadres is going to read it—or stick with it—the readers ultimately have to find your idiosyncratic musings at least as interesting as the source material about which you write. 

So I’ll admit that Shakespeare gives me cover to pursue all manner of things rattling around in my head, and I’d like to share the agony.  To wit: that theme at work in Measure for Measure about which I have been obsessing.  That theme is the sense that the easiest way “to make the law a tyrant” (2.4.123) is to require a precise tit for tat.  And the most likely tyrants are those who convince themselves that working justice is like doing arithmetic—at least when it comes to everyone but themselves.

These realizations—that truth and appearance can be quite different and that deceptive appearances can serve both good and bad purposes—somewhat obsessed our man Shakespeare.  Part of this obsession is not hard to understand.  We all hate hypocrisy.  And we can easily relate to those characters who struggle to get at the truth beneath the surface (see Hamlet).  Shakespeare was haunted by how hard it is to know what is true and how easy it is to succumb to illusions and intentional deceptions.  Yet he also seems to have relished deception.  (He was, after all, a man of the theater.)  His work reflects a belief that a certain kind of deception is, perhaps, the most effective way of getting at the truth, of “holding a mirror up to nature” (Hamlet, 3.2.22). 

I wonder how different the law would be—especially the criminal justice system—if more people bought into the Shakespearean model of justice (which is not the “measure for measure” model).  All of us, like Isabella, value the concept of “justice, justice, justice, justice.”  But too often, unbridled emotion takes over.  And we conflate “justice” with “revenge” or “retribution.”  Or else we just let those languishing in prisons or those who have suffered from abuses by those in power operate beyond our gaze, creating the circumstances whereby power is more readily abused.  And yet we also admire characters, like Isabella, who have been wronged yet find a way to forgive.  We are moved, for instance, by the wrongly convicted prisoner who gets exonerated after 15 years in prison and yet does not rush out and murder the prosecutor who intentionally repressed exculpatory DNA evidence.  Likewise, many of us are unsettled by laws that, in practice, blur the line that distinguishes murder, manslaughter, and self-defense such that some guy on a neighborhood watch squad is able to stalk and then kill a kid who had the audacity to walk around after dark with a bag of Skittles wearing a hoodie and black skin.  We want the law to be above us, better than us.  But it is of us. And, therefore, terribly compromised.  So those who make the law, enforce the law, adjudicate legal disputes, or serve as officers of the court need to be monitored—just as the Duke in Measure secretly watched over his community.  But how exactly do we simulate that?  How do we monitor the law’s operations in a way that does not involve surveillance cameras, but is instead more like sneaking around in a borrowed friar’s costume in search of true complaints about injustice?


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    1. (Sorry, messed something up in my comment and couldn't find a better way to edit.)

      "Be less academic" is also a funny thing for hubby to say when he's a retired academic himself. ;)

      I think a related point to this post on deception would be the tension between objectivity and subjectivity in the law. Subjectivity allows the sort of effective deception you talk about with regard to Shakespeare, but it also causes the confusion over what "justice" means and the distaste I'm sure many are feeling for Florida's "stand your ground" law right now. On the other hand, objectivity is ever present (as an unreachable ideal, the cynic in me would say). We want our judges to be impartial, our juries to be fair, and even law students are expected to analyze issues without regard to their personal feelings (or at least without expressing those feelings).

      My only question is would monitoring those who make, interpret, and enforce the law really solve this conflict between deception (subjectivity) and truth (objectivity)? Or would it just create new avenues for more of the same?

    2. I think the law--at least as embodied in the 1L curriculum and in the popular imagination--is way behind other spheres of human inquiry in recognizing that the line between "subjective" and "objective" understanding is fuzzy indeed. But you are right that the notion of justice being dispensed in a wholly subjective fashion is decidedly unsettling. We cannot trust that the guy in the friar outfit knows what is best for the greater good.

  2. It may be more productive to think of "subjecive and objective" less like two armies from the Revolutionary War period, lined up neatly and facing each other in combat and more like the two asymptotes of a continuum. All human knowledge has elements of both; the issue is where along the continuum it's located.

    Humans have devised systems of constraints on knowledge that tend to push it along the continuum toward the objective pole. The most successful of these systems are science and law. And what really helps is when the historical advances toward objectivity in these systems aren't left to the revisions of individual or collective memory, but are memorialized in writing.

    That said, it's important to remember that subjectivity will always factor into any legal decision. After all, even the most exhaustive text still needs to be interpreted.