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“If language is not correct, then what is said is not what is meant. If what is said is not what is meant, then what must be done is left undone.” Confucius
Lawyers probably understand Confucius’ words better than most people. Whether we’re drafting a contract, hammering out a settlement agreement or delivering a closing argument, correct language is how and what we deliver.
But is our language correct when we ask why we do what we do? Indeed, the scope of law’s reach cannot be understated. “[Law] touches every aspect of life, operating . . . as a norm of action. But it remains, like life, puzzling in its complexity. It is inescapable.”1
Mindful of its complexity, are we clear about the purpose of our profession, legally and politically? Or is something left unsaid, as Confucius would ask? I’m not the first to raise this point: “Although our intuitive understanding about law, the state and society has evolved, our vocabulary has lagged behind our intuitions. The result has been for courts and lawyers to [be] deeply out of sync.”2
By asking such questions, to say nothing of answering them, we might discover that within law lies a transformational key as powerful as any technological breakthrough or scientific discovery.
Three Metaphors Helps Us Understand The Law’s Purpose
Nearly twenty years ago, Professor Tribe suggested that something has been left undone. In Law & Society in Transition3, law professors Philippe Nonet and Philip Selznick drop some clues about how to remedy this: they give us a vocabulary for understanding why we need, and how we use, law. Specifically, Nonet and Selznick identify three metaphors that help us better understand the purpose of law by describing repressive, autonomous and responsive law.
Repressive Law’s purpose is to maintain order out of chaos, and preserve form and function over anarchy. Its style is authoritarian and political, and its philosophy is legal positivism. I apply Repressive Law more than I’d like, but probably less than necessary, with my five children.
Autonomous Law seeks to achieve fairness and justice in a diverse society. Its focus is on rules and it seeks legitimacy for the legal system across the broad political and social spectrum. As a result, the operational style of Autonomous Law is politically independent (hence, its label). Its philosophy is legal formalism. Equal protection is a well-known expression of Autonomous Law, and the blindfold on Lady Justice is its symbol.
Responsive Law tries to exert social influence in a specific context. A family law judge who exercises broad judicial discretion on a case-by-case basis is an example of Responsive Law in microcosm; affirmative action is an example of Responsive Law in macrocosm. Responsive Law offers more potential freedom and flexibility but less certainty and consistency. Therefore, the risk of error is greater.
According to Nonet and Selznick, Responsive Law depends on two components: the professional competence of the advocates (with an emphasis on “officer of the court” status); and the professional accountability of the decision-makers (again, as officers of the court, or of the commonwealth in the case of politicians). To wit, professionalism is a key component of Responsive Law.
The Law Is Also About Relationships
Perhaps we can articulate yet another purpose for law that builds on and goes further than the metaphors we’ve been using. Suppose we state that its purpose is to craft and reveal relationships. After all, we use law in the most ubiquitous ways to describe relationships of every sort:
- The law of gravity (the relationship of celestial bodies in motion)
- The laws of physics (E =MC2, the relationship between energy, matter and the speed of light)
- The laws of nature and evolution (the relationships inherent in natural selection and intelligent design)
- The laws of metaphysics (the Law of Attraction, involving the relationships between thought, belief and action)
- The laws of relationship itself (Men are from Mars . . .)
These examples don’t even touch on the conventional ways in which the law crafts and reveals relationships in our culture. Torts, contracts, constitutional law and politics—it’s all about relationships. If we recognize that the purpose of law is to craft and reveal relationships (for better and worse), we come closer to creating a core purpose for all facets of the legal profession.
Suppose we call this type of law Co-Responsive Law because it describes a “corresponsive” relationship among elements in a system. Its focus is on participation and inclusion. Its strategy is to foster correspondence and co-responsibility among all constituents. It is self-organized (a/k/a autopoietic 4). It is philosophically holistic and trans-rational.
Co-responsive Law Focuses On The Client
Co-responsive Law is not just theory, and its most crucial component is the “client,” the grassroots stakeholder. Co-Responsive Law shows up today in the form of collaborative law and therapeutic jurisprudence5; in the use of “truth and reconciliation” efforts around the world; and in new statutes and court rules that give evidentiary protection to apologies.6 There are efforts to apply the dynamics of Co-Responsive Law to politics and social theory, as evident within emerging scholarly works that call for a new alloy of rights and responsibilities at the grassroots level.7
Indeed, Co-Responsive Law is primarily a grassroots expression. A 2002 ABA survey8 provides some clues about how and where to build a stronger foundation for Co-Responsive Law. For instance, 70% of those surveyed said they had a regular need for a lawyer yet only 30% chose to hire one. This suggests an untapped market for legal services. It also begs the question, “Why do 40% avoid hiring lawyers.” The language used by some of the participants in the survey might surprise you:
- “You are a lot more vulnerable with a lawyer than with a doctor [with whom] it’s easier to figure out what’s going on.”
- “The law in general can be very frustrating to the average human being. [S]he is dealing with a world that is just not natural to deal in. [It’s an] unnatural world.”
When is the last time you considered that your client felt vulnerable when working with you, or that she felt like a fish out of water when coming anywhere near the law? These expressions are symptoms of a bigger problem, and are worthy of attention.
“Conscious participation in law is a concern for everyone, not just lawyers and judges, for everyone is involved with the many spheres of law: its ethical base, its inter-subjective relations, its political structure . . .We are all continually exposed.”9
Let’s consider one final, obvious example of how a legal metaphor crafts and reflects relationships. We claim that our legal system is “adversarial.” If law does craft and reflect relationships, do we take for granted what we are saying with this phrase? Is this really what we mean? Before answering quickly, consider how the “adversarial system” manifests itself in all the spheres of our lives: the law, politics, society, commerce, medicine, entertainment. It influences all the ways we deal with the innate tensions and imbalances in our diverse world.
Law is relationship, and it has the potential to be a healing profession. Let’s mean what we say and do what must be done. Confucius will be proud.
FOOTNOTES
1. Granfield, David; The Inner Experience of Law: A Jurisprudence of Subjectivity; Catholic Univ. Press, 1988.
2. Tribe, Laurence; The Curvature of Constitutional Space, Harvard Law Rev. Vol. 103, # 1, Nov. 1989.
3. Nonet & Selznik; Law and Society in Transition: Toward Responsive Law; Transaction Publishers, 2001.
4. See, e.g. www.calresco.org/lucas/auto.htm
5. See, e.g. www.renaissancelawyer.com/
6. Thirty-five states have statutes that give evidentiary protection to apologies in some circumstances. See, e.g. Cal. Evid. Code § 1160 (2000); Colo. Rev. Stat. Ann. §13-25-135 (Wash. Rev. Code Ann. § 5.66.010 (West 2002).
7. See, e.g. Turner, James & Chickering, Lawrence; Voice of the People: The Transpartisan Imperative in American Life; DaVinci Press, 2008; Dionne, Jr., E.J.; Why Americans Hate Politics; Simon & Schuster, 1991; Kagen, Robert; American Legalism; Harvard Univ. Press, 2001.
8. Public Perceptions of Lawyers; Consumer Research Findings, ABA; April 2002.
9. Granfield, supra.
