The Furies

 I guess I had to go to law school to realize I didn't want to be a lawyer. Ever since I started here, I've been trying—and failing—to recapture my once-plentiful sense of the romance of the profession. 

Oh of course I knew that many people get "disillusioned" once they go to law school or start practice. But usually, this is discussed in terms of "selling out." The conventional story is the idealistic would-be public defender who ends up in corporate law defending big polluters. But this actually frames the dilemma as easier than it is. If this were the only problem, all that would be required is a small amount of moral determination, plus enough privilege (or a big enough scholarship) not to graduate with a lot of debt. Equipped with these two things, one could easily resist the siren song of corporate practice, and hew to the path of virtue. 

But the real problem is something much more complicated. It's not that the evil side of every suit has more resources on its side, and that one must simply resist being bought. It's more that, in most legal matters, neither side is particularly evil or good. What you have instead is two parties trying to summon the coercive power of the state to redistribute resources in their favor. Who should win? Who should lose? Neither of you! I declare. I want to wash my hands of the whole self-interested enterprise. 

Of course, this is a rather dainty attitude; and a friend who advocated for me to go to law school is always trying to remind me of the many ways in which the world does in fact need lawyers. "Lawyers do a lot more than just zero-sum litigation," he says. "People need lawyers to do ordinary transactions, draft contracts," etc. And I embrace this logic in principle. But the world needs wedding planners and HVAC repair people too; it doesn't mean either profession is my distinct calling. More to the point, no matter how much I try to persuade myself of the strength of my friend's arguments, I can't escape the feeling of a certain "ickiness" hovering over the law itself. 

Oh, I try to remind myself of all the heroic, crusading things that lawyers can do in the pursuit of "justice." I was briefly inspired again a few months ago, for instance, by listening to a podcast interview with a recent law school grad who had founded a project to push back against the rising authoritarianism of the MAGA movement. His main tactic was to leverage existing defamation law to go after right-wing politicians and media outlets that are peddling false conspiracy theories about election interference, etc. There, I thought. Now that's the kind of things lawyers could do to make a difference!

But now that some of those same efforts are starting to bear fruit, I'm disgusted again. Of course, we're talking about the likes of Rudy Giuliani here—in short, total scum bags; the lowest form of humanity. And yet, I don't like seeing even someone like Rudy hit with tens of millions of dollars in damages. Where on Earth, I think, are juries getting those figures? These are absurdly ruinous amounts, and they seem to be pulled out of thin air. I wouldn't wish tort liability of that magnitude on my worst foe. I wouldn't wish it even on Donald Trump, who was likewise recently ordered to pay upwards of eighty million dollars in a defamation suit. 

The magnitude of these punishments seems frankly unjust, even though there was genuine malfeasance at issue in both cases. 

Of course, these are civil penalties, not criminal ones. And many progressives who feel uncomfortable wielding the coercive power of the criminal law—even against admittedly bad actors—feel relatively little compunction about these kinds of damage awards. Even prison abolitionists, for instance, who might feel somewhat conflicted about calling for a criminal trial against Trump—worrying over whether it is consistent with their principles—will seldom be heard to raise any objection to civil penalties. 

Yet, on closer examination—of course—the distinction between the two breaks down. For the backstop of all civil penalties is the threat of criminal sanctions. The "shades of the prison-house" loom over every civil trial, then (to borrow a phrase from Wordsworth), because every award of damages is ultimately enforced by the knowledge that a court can hold the defendant in contempt, and threaten them with jail time. 

This is the fundamental ickiness of the law, no matter one's area of practice. Ultimately, so long as one is working with the law, one is tangling with the forces of coercive power. Everything one does is ultimately supported by the state and its administration of justice, and lying behind all of these—their final source of power—is the fact that they can inflict legitimate violence on members of society. 

I do not find, in fairness, that this "ickiness" tends to warp the character of lawyers. Contrary to popular belief, I find that most lawyers are highly collegial people who are in no way more cut-throat or competitive than the average member of society. Indeed, I generally find them to be kinder than members of the ministry and the nonprofit philanthropic profession, having spent time in both. But perhaps the reason that lawyers are generally nice to each other and their clients is that it is necessary to maintain a certain civility and decorum, when one is suspended over the abyss of the oubliette. 

When all one does is ultimately backstopped and maintained by the whip and the wheel, of course one wishes to maintain a sense of dignity—like the lawyers of old England who always referred to each other as "my learned friend" while arguing over whether some poor wretch ought to be sent to the gallows or the stocks. 

I am reminded of the third play in the Orestia, in which the Eumenides—the mythological "Furies"—are deprived of their victim Orestes through an adversarial process that can only be described as the world's first courtroom drama. The point of the play is that the ancient law of blood vengeance—an eye for an eye—has now been replaced by a deliberative process. Law has won out over custom; reason has won out over revenge. (Or, more critically, one could read the play as saying that a patriarchal state has won out over a matriarchal tribal structure—after all, the reason Athena ultimately sides with Orestes in the trial is not particularly logical or deliberative—she mostly seems to be swayed by Apollo's frankly sexist arguments!)

But the most interesting twist in the play's resolution is that the Furies, after they lose the case, and Orestes is liberated from their clutches, are not sent away. Instead, they are given a consolation prize. They are told they must remain in the city, because they still have a vital role to play in the administration of justice. They are still, Athena implies, the ultimate backstop of the court's authority. It is because the court holds in reserve—as the ultimate threat guaranteeing enforcement of its orders—the primal forces of violence and revenge, that it retains its power and ability to compel obedience. The Furies are still with us then—the play implies—even if they are now kept on a tighter leash, and only get to worry their victims after a court proceeding has duly convicted and disposed of them. 

Aeschylus's argument appears to be that the state can never entirely abandon the use of force. It cannot expect people to honor their obligations in complex society unless the law is reinforced by the threat of violence. "There is a time when terror helps," the Furies plead. "Is there a man who knows no fear/ in the brightness of his heart [...] that still reveres the rights?" (Fagles trans. throughout.) And later, Athena concludes, "terror and reverence,/ my people's kindred powers/will hold them from injustice through the day [.... N]ever/ banish terror from the gates, not outright. Where is the righteous man who knows no fear?"

I actually don't disagree with the Goddess's (or the dramatist's) reasoning in this regard. If we are to have a state at all (and I think we must have one—that states are necessary in any complex society larger than a kinship band), then the state must use coercion, or the threat of coercion. "Reverence" for the laws—the sheer power of the moral code—will not be enough; and indeed, "reverence" itself, the internalized respect for the law, often descends, however indirectly, from the ultimate threat of force. If we are going to have a state, then, it must also use "terror"—the threat of prison time or other coercive sanction. For, as Weber said, the state is nothing other than "organized violence."

But even if I acknowledge the need for some ultimate residuum of "terror" in society, as the dramatist puts it—still, it must be kept within very narrow limits. We should strive to rely on coercion as little as possible to achieve our social goals. Far better for people to act out of voluntary moral impulse or, failing that, economic self-interest, than to do so out of fear of punishment. And we should never forget that this is the choice we really face, when we decide whether or not to try to accomplish something by law and the courts. If we rely on legal mechanisms, then we are effectively choosing to operate through force—through "organized violence." 

This is the heart of the "ickiness" I feel in the law. It may be necessary to accept some of this ickiness, when all other options have been exhausted. But we should never delude ourselves that the law is anything but—at best—a necessary evil. As Weber writes, in "Politics as a Vocation," to leverage the powers of the state is essentially to meddle in "Satanic forces." It is, as Aeschylus's play suggests, to call in the Furies to act on one's behalf. 

That is what one is doing, whenever one initiates a law suit. One is summoning the Furies. 

Of course, people try to idealize it. They speak of promoting "access to justice." They say that, the more lawyers in society, the more causes of action people can bring, the more justice shall rein. But let us not kid ourselves—it is "justice" only as defined in the old way. It is Eumenides justice. It is justice administered through terror. And even if there is a need at times for such measures, they should not be the default. Our first recourse should not be to what William Godwin aptly called the "gore-dripping robes of authority." Far better to try to act first through persuasion, moral reasoning, compromise, or mutually beneficial exchange—before we resort to the Furies. 

This is why I can't really see the appeal of practicing the law. Of course, many people think that more people should be able to have access to the Furies. They have a notion of justice that is essentially retributive, and they like the idea of each person being able to initiate their own law suits. But this vision does not appeal to me. I cannot get excited about the prospect of each person with their own lawyer—their own personal sorcerer, if you will—able to utter the right magic words to set Weber's "Satanic forces" in motion, or to invoke the aid of the Furies—which is essentially what filing a law suit means. I don't want our society to be like that, in the end. 

And so the law is not for me, even if it is needed in some abstract way. Let others meddle with the Satantic forces. Let others spend time in the company of the Furies. I prefer to devote my efforts to trying to promote "reverence" first—to get as much good for society accomplished as we can through "reverence" alone—and then, only when we have reached the limits of this method, to leap to the final resort of "terror."