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< | NOTE: Eben, I've been working on a revamp of this paper to come at parts of this idea in a different/better/less meandering way, but it's not soup yet. By all means read this if you prefer, but if you are deciding between which pieces to read and it matters to you, know that I plan to drop in an edit in the next 24-36 or so hours if it seems to work better. - Mike |
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< | Winners and cynics
-- By MikeCarson - 12 Mar 2017
“Some people call politics fun, and maybe it is when you're winning. But even then it's a mean kind of fun, and more like the rising edge of a speed trip than anything peaceful or pleasant. Real happiness, in politics, is a wide-open hammer shot on some poor bastard who knows he's been trapped, but can't flee.” 1 Hunter S. Thompson, The Great Shark Hunt: Gonzo Papers 120 (1979).
I. Grim words from malcontents
Whether it's an act of accurate sociological reproduction or simple storytelling choices, in his first three chapters Joseph gives us malcontents for lawyers. They're self-consciously vulgar and sharply critical. They have unkind words for other lawyers, and skepticism about the profession as a whole. It all gets a bit grim at times. The criminal law is “civilization's pathology.” The law is “chaos.” Lawyers are “liars.”
“It's an inherent part of the process,” Judge Celia Day tells us. “Lawyers know too much. If you know too much, how don't you lie?”
II. Marginal powers, absolute consequences
What makes Joseph's lawyers cynical (if not, one insists, cynics)? |
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> | Primitive: Fear in Veblen, and in lawyers |
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< | The lawyers Joseph presents do different work, although each is “never far from evil.” Carl Wylie's deals are “going to ruin the lives of thousands of people and their families.” Robinson and Day's courtroom stories are full of murderers, callous defendants, unsympathetic plaintiffs—and lawyers eager to be positively vicious in retaliating for personal wrongs against them. |
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> | -- By MikeCarson - Edited 26 April 2017 |
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< | Certainly some of the tough talk and gallows humor comes from these intimate brushes with “evil.” But if they need to take a hard-bitten stance to cope with evil—to dissociate it, perhaps—I don't believe it's just because they brush up against the bad folks and their victims. |
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> | “I asked my partner what he thought of cousin Thorstein. Now this is a very socially aware young man, a very good lawyer I'm very fond of him. Do you know what he said?" Tharaud smiled. "'Cousin Thorstein was primitive.'” Lawrence Joseph, Lawyerland 125 (1997). |
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< | “Robert Jackson had it right—what we do is by force of our commission,” Day tells us. “We are forced to discern the law as we see it. We are forced to enforce it.” |
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> | I. Proxies of 'primitive' force |
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< | Wylie points out that lawyers like him do whatever their clients want them to. But even for the ones who aren't “pigged-out on cash,” the roles Joseph's lawyers play are still dictated. Day points out that even if she wants otherwise, there's “not much room for mercy” if she holds up her end of the bargain as a judge. Even Robinson, the iconoclast, the weirdo, is left by the system to wait, to plead out, to brag because the mostly-harmless kid he's representing “only” gets a year in Rikers. Joseph's lawyers fill roles dictated by their legal surroundings while operating in a world with high stakes for the parties, and relatively low ability to bend the system of justice to fit any particular moral sense of their own. |
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> | Martha Tharaud didn't misunderstand her partner when he called Thorstein Veblen “primitive.” Certainly he did mean that his philosophies were at least outdated and out of fashion, if not completely archaic. But he may also have meant more, |
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< | One expects that can be bad for the psyche. Being a lawyer is deeply embedded in the identities of each the main characters Joseph gives us. How could it not be? But gifted “elites” though they might be, Joseph's lawyers use their considerable skills to wield marginal powers, in a world of absolute consequences at the hand of the system. |
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> | The currency of the social systems Veblen describes (at least through the first few chapters of The Theory of the Leisure Class) is grounded in understandings of the most primitive kind: waste of time and money develop as useful proxies for displaying brute, destructive force. Veblen drains some of the blood from the his descriptions, but “prowess” and “prepotency”—the kind of strength signaled by successful exploit—stand in for displays of the ability to cause harm. Cousin Veblen's theories say at least in part that what drives our economic and social behavior is a pervasive need to signal the traits that makes us “better capable of a sudden and violent strain”—namely, the capability to crush one another. What could be more primitive? |
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< | III. Love winning, hate losing |
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> | “The predatory instinct and the consequent approbation of predatory efficiency are deeply ingrained in the habits of thought of those peoples who have passed under the discipline of a protracted predatory culture. According to popular award, the highest honours within human reach may, even yet, be those gained by an unfolding of extraordinary predatory efficiency in war, or by a quasi-predatory efficiency in statecraft; but for the purposes of a commonplace decent standing in the community these means of repute have been replaced by the acquisition and accumulation of goods.” |
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< | Before law school, I spent five years as a manager and consultant on political campaigns. I was good, in a small-pond sort of way. |
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> | The emulative efforts of individuals are the outgrowth of this ancient respect for “predatory efficiency.” In a world with no buffalo to hunt and no tribal territory to go to war over, demonstrating wealth or leisurely refinement are the only ways left to demonstrate one's strength. |
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< | If the only good reason for a career in law is because one loves justice or hates injustice, then I'd suggest that the way to make a career out of politics is to love winning, or else hate losing. The back-and-forth of political discourse around elections is mostly nonsense. (And rarely well-mannered enough to be transcendental). The candidates range from well-intentioned but imperfect, to mean and stupid and horrible. The methods of delivering the messages are mostly blunt and crass; and even worse, they sometimes work. |
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> | II. Fear as a driver of emulation |
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< | But if the old saw is that elections have consequences, campaigns often don't. It's the exception and not the rule where the forces of demography, partisanship and incumbency allow for an election to be close enough where the staff or strategic choices can hope to make any difference in the result. Of course when you lose, then real people get pounded, and lose their healthcare, or get deported, or are sent off to fight in wars. |
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> | In class, we talked about how one mechanism for ingraining the need to show these distinctions in sexual selection and romantic competition. But it seems obvious that the same instincts must have functioned also toward mere survival. In a world of exploit, broadcasting strength does more than bring social approbation and self-esteem—it also signals to rivals who isn't to be trifled with. Ability to emulate is just evidence of exploitative capability; pick a fight with the one displaying the most social status, and one is liable to find themselves “exploited.” |
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< | In that environment, it's important to focus on marginal victories. Good campaign staff focuses on “winning the day,” and hopes that when the time comes, the capricious political winds puts a win within spitting distance on election day. Mostly that means blowing up the other guy, in a hope those inclined to support him skip his name in when going down the ballot. In the best case, it's worth a percent or two. Which might be enough. |
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> | To the extent this hold true, it fits with the treadmill of acquisition and waste which Veblen describes as requiring individuals to always aspire to the next class. Ambition is one thing; fear that someone else will come and hurt you is quite another. Societal approbation and self-esteem are the engine of the patterns of waste and consumption Veblen identifies. But fear is forced induction for that process, supercharging each individual's effort to climb ever higher in the parade of emulation that determines social status to try to scare away violent challenges before they start. |
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< | For those staffers, the larger issues are beside the point. Good staff makes every dollar and every second of airtime do the work of hammering the negatives. Your worth is measured in large part in how effective you are at landing your punches. |
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> | As Veblen himself points out, the increasing industrialization of society reduces the frequency and necessity of violent action. This makes the incentives for displaying exploitative prowess less clear in industrial societies. But many-thousand-year-old habits die hard in people. Even if new methods of display and new cultural and psychological tensions develop with the gradual decline of more “primitive” economic states, there's no reason to think that the old, visceral fears get left behind. |
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< | IV. Not beanbag, but not combat |
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> | III. In defense of Thorstein's cousin |
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< | If you talk to most campaign staff lifers, they sound a lot like Joseph's lawyers, the same sardonic smile and ready bite. |
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> | In the last draft of this essay (see revision history, but treat it as useful reading at your own peril) I made a lot of the gallows humor and and combative rhetoric of Joseph's lawyers in the opening chapters of Lawyerland. After Veblen, it seems clear to me that all three of the lawyers at the center of that draft are well in touch with their primitive sides. They feel fear, and they know how to cause it at their courtrooms and conference tables. They intuitively know their way around a nervous system forged in a few a few millennia of violence. |
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< | There seem to me to be similarities in the high-stakes adversarial nature of the two jobs. Sometimes your client will lose when they deserve to win. Sometimes, you work for the bad guy. But every time, you know the outcome will have big consequences—and that there's only so much you can do to change it. |
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> | I'm certain that it makes them better lawyers. I feel reasonable sure it doesn't help them feel less afraid. To differing extents, all three show they are in touch with this vestigial condition of fear, but dissociate it (or perhaps embrace it), rather than transcending it. They intuitively know both how to leverage that kind of fear and to cope with it, but still spend much of their psychic energy like most everyone else in the industrial world Veblen describes—either broadcasting their strength, or else balled up and hoping to avoid the kind hammer shot unlike to come in their economic era. |
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< | In a professional word with clear winners and losers, it's easy to love to win. Even Robinson, thoughtful in his way, suggests a love of the practice as pugilism. Good practitioners love to do the thing. Respect goes to the ones who get wins. |
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> | As Robinson and Celia Day know better than most, violence and exploit remain in the modern world. But even that is of a different character: our interpersonal contacts tend to be more dense, our means of violence more efficient. The old saw says “God created man, Sam Colt made them equal.” Economic and social factors have a role to play too, but generally, any level of protection afforded by demonstrations of wealth and leisure become a less valuable form of protection in a larger modern surrounding. |
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< | In Chicago, they say “politics aint beanbag.” But it's also not combat. Neither is law. This seems to me a challenge to a lawyer's theory of social action, though—to be first a trench fighter, instead of an actor with higher purpose. Surely it will make you a cynic, if you let it. |
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> | There is too much that's outdated in the instinct toward violence and the accompanying fear. It's powerful, and likely to cloud efforts to feel or to do good. I don't think it's a given that Tharaud's partner doesn't feel this, even if he might not say it. Veblen sees us left with primitive instincts difficult to cast off. A bright young lawyer might see rejecting those fears as helpful for doing good, or feeling good, in a world where they've lost so much value. |
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