Playing God?

Posted: August 7th, 2009 | Author: | Filed under: Reflections on Law Practice | No Comments »

Since I first starting practicing law in the US, I was struck by the fact that clients’ moral compasses often appeared to be guided purely by rules of law rather than a common-sense approach of what is right or wrong.  Take the following example:

Client:  “I want to sue my brother for breach of contract.”

Simon:  “I wouldn’t recommend that; first, this is your family.  Second, your brother has a family that would suffer the consequences of your unresolved fraternal conflicts.  Third, it just doesn’t seem right to me”.

Client.  But the law says I can do it, right? 

Simon.  Yes it does, but that doesn’t mean that it’s an appropriate way to deal with something.  Have you tried calling your brother to discuss this?

Client.  You think that might help?

This conversation is entirely fictitious, but the substantive content is a thread that permeates a significant number of my attorney-client interactions, and underscores the point that there is a difference between what is lawful and what is right.

I’m going out on a limb here, but is this perhaps the logical by-product of our constitutional democracy?  That is to say, the result of the fact that the glue that binds the nation is essentially a collection of laws – necessarily generic, rigid and of universal application – rather than a shared set of normative values derived from collective history with rules in place merely to regulate extreme transgressions of those values.  The United Kingdom for example does not have (nor seems to need) a written constitution and much of the way their society behaves is determined by generally accepted and long-established custom.  Granted, not all of those customs are necessarily palatable and perhaps require rule-based modification, but as a general matter, I believe that recourse to a set of generic rules as a template for a personal code of conduct breeds rigidity, lack of personal responsibility, a reluctance to think, and often fairly extremist views.  I also believe this has profound implications for the way we interact as citizens, and the way our nation interacts with other nation states. 

It may also explain the general antipathy toward the legal profession; perhaps we have become regarded as demi-gods, with tremendous power to influence personal choice?  I don’t know, but for myself, I would prefer clients to act out of an innate sense of decency and what’s plainly right, rather than the alternative.



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