The Complete Lawyer

In 1959, George Steiner, the renowned English literary critic, angered many Germans, especially German academics, by announcing in his article “The Hollow Miracle” that the German language was dead.

“Open the daily papers,” he wrote, “the magazines, the flood of popular and learned books pouring off the new printing presses; go to hear a new German play, listen to the language as it is spoken over the radio or in the Bundestag. It is no longer the language of Goethe, Heine, and Nietzsche. It is not even that of Thomas Mann. Something immensely destructive has happened to it. It makes noise. It even communicates, but it creates no sense of communion.”

What brought about this death was complicated, Steiner says, but the final blows were the “drill call of the classroom [that] led to that of the barracks” and the ease with which the German language could be politicized under the Reich. The Reich could readily turn a non-resistant language into an “inhuman gibberish” no longer capable of performing language’s two principal functions: “the conveyance of humane order which we call law, and the communication of the quick of the human spirit which we call grace.” It was no surprise that writers like Mann, Brecht and Zweig went into exile.

Morality And Language Are Inextricably Linked

What I want to suggest here is that these two functions of language, “the conveyance of humane order which we call law, and the communication of the quick of the human spirit which we call grace,” are really one in the language of the law. Because this combining of order and grace is the law’s moral purpose, lawyers have a moral obligation to use their language well to protect it from the corruption of it that Steiner described.

I am not suggesting that the rules of correct usage of legal language should be elevated to moral status; morality may just as well require that any such rules be broken for the language to retain the openness that the expression of grace requires. What I am suggesting instead is that the language of the law is used well when it is used honestly to persuade another person; when the identification between writer and reader that persuasion seeks is an accomplishment of the conversation itself rather than a recognition of a shared identity formed prior to it; and when the language is, in James Boyd White’s term, the “living speech” of a fully human person, a real self at work behind the words.1 For only when the language of law is living speech can the law perform well its moral purpose.

Why do we trust the judgments of the law? Its judgments are, at rock-bottom, judgments about who we have been, who we are, and who we are to be. Its decisions are about the narrative of which we are a part, made in the context of competing narrative interpretations of an authoritative text as it applies to disturbing, though often quite pedestrian, human events. These judgments about us are not, however, the product of deliberative arguments as one would expect them to be. They are instead, for judges and jurors alike, judgments discovered through what are essentially theatrical recreations and subsequent reflections upon these recreations. The law’s judgments, then, are the judgments of those who have in some fashion “lived” the experience, who know it through aisthēsis (the Greek word for a perception that demands all of who we are—from which we get our word “aesthetics”), and are trusted as such in the way that other judgments are not. They are ethical judgments as acts of literary imagination “linked,” as Aristotle put it, “in the human soul.” And because they are (and as counter-intuitive in our culture as this may seem), we trust these judgments precisely because they are more fully human than others are, combining, as they do, order and grace.