A Lawyer and a Believer: Part 1

To Be A Lawyer and a Believer: A Two-Part Series

Part 1: Lawyer

 Originally Published in the Maryland Daily Record

            After we leave our places of worship, we lawyers don’t usually talk about our faith much.  There are lots of reasons why.  Maybe the biggest is the disconnect between the way the faithful think and the way lawyers usually do.  Always the pressure on lawyers is to pinpoint the authority for our position, to point to something hard and durable, something objectively verifiable: authoritative precedent, a line of deposition transcript, a clause in a contract, a phrase in a statute, a principle in a written constitution. 

            For believers — at least for those to whom scripture is a starting point but not a user’s manual for life — it can never be that way: we intuit God in a chain of events, in a feeling inside when we sing a hymn, in something (or is it Someone?) ineffable that occurs as we rub shoulders with fellow believers or pray silently.  We sense God, all right, but we can’t prove God or pin God down.  God is not tame: God could be anywhere at any given moment, but will not be palpably there to check with when you come back later the way a West headnote will always be there.  In this sense, the experience of God is not very lawyerly.  And it’s disconcerting to drop the a priori style of thought and discourse lawyers are trained in, to articulate convictions that just are, and may not be based on anything objective.  Easier not to talk about it, treat faith as one’s little secret. 

            And at the same time, being a lawyer in and of itself raises the suspicion of other believers.  To other faithful souls, we lawyers appear far too worldly for our own good.  And the law thing we do — that’s commonly perceived as having little to do with justice, which is of much greater interest to most believers.  And then there are the material rewards that come to many of us, calculated to draw our attention away from more transcendent and important objects.  So what makes us think we belong in the community of the faithful, really?  If humanity is screened through the eye of the needle en route to heaven, and the well off are least fitted for the process (Matthew 19:24), what are the chances we’ll get through?  

            In short, our dual citizenship is apt to alienate us somewhat from either world. 

            Trying to hold both passports myself (born and raised Catholic, an attorney since 1981), I have experienced this.  And being (people tell me) less reticent than some about bringing up difficult subjects, I thought I’d share a few insights my situation, both blessing and predicament, has afforded me. 

            Let me start with this.  Most kinds of believers agree that a real and personal God has created, interacted with and continues to interact with us individually and also with human history, and that this God loves and makes demand upon each of us.  Most of us believe that the God who created all natural laws can and sometimes does suspend them. And most believers would also agree that God is in our midst and we in God’s.  To put it another way: There is no secular, and there is no sacred.  The holy and the profane, the miraculous and the mundane: it’s all the same stuff. 

            A consequence of this sense that sacred and secular interpenetrate is that for us there’s no division between what we do as believers and what we do as lawyers.  For me, this cuts both ways.  Belief informs my views of law practice, and my legal experiences have a great impact on my faith.  In the first part of this essay, I want to talk about the way in which belief influences my views of my profession.  Next time I will talk about the influences going the other way. 

            First, the easy part.  The kind of ethics that my faith and pretty much everyone else’s urge – truth-telling, treating others with respect, not stealing – are all reflected in the Code of Professional Responsibility, and if you internalize the first, you’re not going to have much trouble dealing with the second.  Despite the largely undeserved bad reputation for dishonesty we lawyers suffer from, most of us acknowledge this code and the Code, and there’s no conflict in that area.  A word of obvious caution here: we believers are no more likely to live up to our ideals, personal or professional, than anyone else.  This is about how we believers understand our responsibilities, not how well we as a group or certainly I as an individual live up to them. 

            The more interesting conflicts start when you’re forced to take sides in negotiations and disputes.  My particular faith is not thrilled with disputes, with disharmony between people, with self-seeking to the detriment of one’s neighbor or, worse, the common good.  (See St. Paul’s distrust of lawsuits in 1 Cor. 6.)  By lending myself to one side in a “case or controversy,” by putting forward only one point of view regardless of the merits of the other side’s view or of the common good, I am quite arguably at odds with the outlook of my faith.  After all, what about the importance and dignity of the side I am opposing? 

            C.S. Lewis said it very well in his great sermon The Weight of Glory: “There are no ordinary people. You have never talked to a mere mortal . . .  It is immortals whom we joke with, work with, marry, snub, and exploit. . . . Next to the Blessed Sacrament itself, your neighbor is the holiest object presented to your senses.” The Society of Friends, or Quakers, say the same thing, I think, in their maxim that “There is that of God in every man.”  And though I do not always live up to this view, I agree with it.  How can I, then, oppose the interests of anyone? 

            I have to start answering this question by reminding myself that my neighbor can be at one and the same time both divine and wrong about certain things.  I remind myself that God has for some reason placed us in a world where there is constant dissension and competition among even those creatures created in God’s likeness.  There had better be some kind of system for ironing these things out (exactly as there had better be a system for curing the disease God has also allowed in our midst), and there had better be people like me who specialize in making that system work. 

            Fine, but does that mean this system, where advocates compete to put the best face on each side, where dueling biased views are presented as bases for resolving disputes?  I think it does.  While I lack the hubris to say ours is necessarily the best system – and like any thinking person I certainly object to many aspects of the way it is run – I do believe this system is, spiritually speaking, adequate.  There is always a finder of fact and law, be it judge, arbitrator, or jury, who has the responsibility of looking out for the ultimate truth and the just solution.  And that finder gets the last word.  Meanwhile, and no matter how counterintuitive it might be, the finder observably benefits from the interplay of the biased presentations.  The apparently uncontrolled dialectic of partial views somehow leads to an impartial synthesis that usually gets it whole and gets it right.  By taking one side, therefore, I may help all sides get past a dispute. 

            I also don’t want to overstate the one-sidedness in advocacy.  The most effective advocates try to foresee what the referee, the judge, jury, or arbitrator, will demand and will think, and not advocate things that the referee will reasonably reject as nonsense.  They also recognize a responsibility to the common weal that conditions and informs their loyalty to any client.  Together these tendencies keep them from grossly misleading any party to the process, especially the referee.  I have never felt that the role of advocate made a liar of me. 

            In sum, I do not necessarily do violence to the immeasurable dignity of every other man and woman, or of the society of which we are all a part, by taking the part of some of them against others of them.  In the end, we are all equal in God’s eyes, I am quite sure, but after much thinking I have concluded that this does not mean I cannot be partisan at certain times and for certain purposes. 

            But let’s pull back further.  Most believers, I among them, derive from their estimate of human divinity certain conclusions about the way law should structure society.  Actually, certain competing conclusions.  

            To illustrate, my Church has advocated a “preferential option for the poor,” meaning we are urged to try to steer social policy in the direction of alleviating the burdens of the needy.  Some quantum of property seems to be critical to the fully realized life of any and all human beings, and the absence of property literally defines (though it does not by any means fully capture) poverty.  Thus, part of a program of according the poor the more fully realized life their dignity demands would seem to indicate seeing to it that the poor get more property than they presently possess. 

            But we need to be careful about this.  The world’s poor are so very numerous that satisfying their property needs on a wholesale basis would inevitably require mass transfers of wealth which would certainly trench on the property rights of those who have much.  Property is itself a specifically legal construct: a bundle of rights to various tangible and intangible things which the law will enforce.  To effect such a transfer would therefore require amending the law. But amend the law and destroy property rights, and we will also destroy the incentive system dependent on those rights.  And that incentive system drives commerce without which there is no property for anyone, never mind for all. As lawyers, accustomed to dealing with the very world of wealth and commerce that makes some fellow-believers so suspicious, we understand this full well.  All else being equal, we know, mass property transfers would therefore simply make everyone poor and not achieve the desired end, the demise of poverty, but tend in fact in the opposite direction, making poverty even wider-spread.  (A classic recent example is the forced land transfers in Zimbabwe, which have largely destroyed agriculture there.) Which is why religious belief does not make socialists of most believers, and especially not of the lawyers among us. 

            All the same, when the legal systems we presently have – and in one way or another they are worldwide – routinely support the existence of large pockets of the poverty, most faiths still say that something is very wrong.  Maybe outright redistribution in the teeth of both legal title and market forces won’t solve the problem, but that doesn’t mean there’s no problem or that we don’t have to worry about solving it.  We are called upon to address at least the effects of poverty, and better yet the causes. 

            Addressing the effects, for a lawyer, certainly includes representational pro bono work, generally recognized in the profession as a moral obligation for each of us.  It probably means donating to charities as well.  Addressing the causes calls for political action, in which we lawyers must also be concerned, though as much in our status as individual citizens as in our status as attorneys.  But as we know the most about the laws, and as the laws are intimately involved in the problem, we ought to be using that expertise in the project of bettering the laws. Which is perhaps a bloodless way of saying that each of us believing lawyers needs to break off a chunk of the laws that are responsible for poverty and try to do something about it. 

            It is a similar story with the over-militarization of the world and the ongoing destruction of the environment.  Most believers recognize the wrongness in the way these things have developed, and most recognize the special role of law in perpetuating the wrongness.  We lawyers thus must play a special role in the fix. 

            But in contemplating that role, we must recognize that uncompromising rejection of the status quo is not an intelligent or productive alternative, either.  Armies exist and are used for good reasons as well as bad, and we humans cannot simply turn on a dime and stop all destructive and unsustainable activities on this planet.  So a rigid “no” is no more correct or religious an alternative than uncompromising acceptance.  

            Faith, then, calls for an uneasy maturity.  We cannot be complacent or resigned, either as lawyers or citizens, and indeed our faith calls us to critique our system and its laws from a profoundly humane perspective.  Most faiths teach that the world is imperfect (a Fallen World is the phrase I learned in my tradition), and that the divine plan and destiny is for a better one, a juster one, a safer one.  We must hang onto and try to bring about that vision, recognizing, as we do so, that our present system is not the unalloyed result of sheer stupidity or evil by any means.  Our faith should never allow us much comfort; while on the other hand our legal training should never permit us to overdose on discontent. 

            Critiquing our world and trying to improve it, we must sort out wheat and chaff as best we can.  It isn’t easy, and there are no guarantees we will do it well or successfully.  But for lawyer-believers, sorting it out and then acting on what we see — that is our task.

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