Robinson: Aiming The Force of The Public Will And The Proximity of Evil

-- By RobertoRivera2 - 13 Mar 2015

The Idea

After our discussions on our lunch with Robinson I began to wonder what more there could be to lawyering that makes our desired positions "not far from evil." It was while thinking about this question and considering what unique powers and responsibilities come with being a lawyer that I decided it may be our ability to wield the public force that makes us never far from evil.

Indeed. But there might be other reasons as well, like the motives and behaviors of clients, adversaries, and the other parties one comes across.

Initial Thoughts

Before and during class I was struck with the strong feeling that Robinson lacked sympathy for the fate of his clients chiefly because he accepts everyone as “criminal”. I mean this in the sense that the criminal law creates an “evil” status at times attributable to anyone.

Why would sympathy for the fate of clients, or other people, depend on whether one considered them innocent of crime?

I am still wrapping my head around the idea but it seems that the issues of the dissociative effects of “law” (as transcendental nonsense), punishment and deterrence, and the wielding of the social force through law all come together in our lunch with Robinson.

That's what great literature does.

The Intruder Story

I couldn’t let go of this feeling when thinking about the Fujianese intruder story. In particular, the description of the district attorney’s thoughts and subsequent actions after discovering the intruder in his home bothered me. Seeing a stranger has entered his home, the D.A. instantly considers a series of options he has for action, weighing the costs and benefits of each. Knowing the law, he understands that he could lawfully kill the intruder with his registered firearm but chooses not to because he fears the effects of public opinion on his actions. To avoid this undesirable mobilization of public will, he chooses instead to attack the intruder with the force of law (stopping first of course to rip clumps of hair out of his head before the arrival of law enforcement). The attorney then uses his family connections to ensure first, that the best prosecutor is selected to handle this case, and second, that she uses the full extent of her prosecutorial discretion to effectively end this kid’s life. He want’s the intruder “dead” and the prosecutor “out for blood.” Right or wrong, the Fujianese adolescent is confronted with a laundry list of charges one could only hope to plea out of (if the prosecutor was willing to offer a deal, which in this case she will not).

The prosecutor was a federal guy, an AUSA. We are listening to a reconstruction of the situation by a lawyer for the defendant, and should accept that this is not the only way the story could be told. The defendant was Serbian and Chinese from Fujian, which is probably important in several ways. But the story is a story. Its point begins from the observation that this is the way power actually works. It ends in knowing how power works back. I think you want to give a little more room to the story's point, in that respect, for this essay.

We Are All "Evil": Transcendental Nonsense As A Dissociative Tool

This is what disturbed me. Robinson talks of “mens rea” and hints at the distancing it creates between jury and accused (just as Cohen describes the effects of transcendental nonsense). People cannot imagine themselves having the guilty mind requisite to be deemed “criminal” and engaging in these legalism gymnastics helps only to further entrench this belief. Yet, we see this district attorney and prosecutor act with fully evil intention (and I would hope a guilty mind) with approval and in the service of our community.

What evil intention? They are putting a wrongdoer away. They charged what they could prove. The prosecutor has decided she wants to go to trial. Not only isn't any of this criminal, it's people doing their jobs competently for the public that pays them. Obviously if our job is to represent the defendant as best he can be represented we will see a constellation of power pushing against us, and we will find a way to undermine it if we can. But how, precisely, does "evil" enter into it?

Noting this, I believe one of the messages we were meant to glean from this conversation with Robinson and which this anecdote emphatically illustrates is that we all have these instances of “evil” intention, but the law determines where the label falls and what to do with it. Our societal pathology is rooted in retribution. Does punishment deter? We don’t ask. We seem to have an inclination toward the infliction of pain, commensurate with offense or not. This is further illustrated in Robinson’s (and our own) musings on the nature of the prison system. If only we knew more about “what comes down.”

If we knew more about what comes down, would we see more evil? More fuckup? More acquisitive greed and less "public spirit" than the Republic requires? Does it matter what we are going to find in regulating our disposition to look?

Lawyers: Having the power to Manifest Evil with Greater Effect and Lesser Accountability

This illuminates how lawyers “are never far from evil.” We spoke of the courts as a system for wielding the public force. What is important to ask is by whom and against whom? Although no individuals exclusively wield this force, I do believe that when compared to the average citizen, lawyers come much closer to wielding a change-inducing portion of it. Robinson knows this and expresses it while rejecting Hand’s ultimate fear of a civil suit, replacing it with his fear of what it would mean for one to face a penal charge without legal knowledge or assistance. This is why lawyers are never far from evil. They have the agency to aim the sights of the public force toward or against others, and good and evil can be done in either direction. Lawyer becomes criminal; criminal becomes lawyer, and citizen both. On balance there is no difference.

I don't think Robinson believes that. Why do you believe it on the basis of his experience if he does not?

Perhaps lawyers are never far from evil more because clients never are than because the law is public force and public force never is. Madison is surely onto something in observing that government is the purest reflection of human nature, that if men were angels no government would be necessary.

In that case, how would your essay draft be different?

What this Means For Us

With this understanding, I think it is necessary that we as lawyers take the time to acknowledge the transcendental nonsense that we have exposed thus far in this class. It is important that we look at the law and define it by what it does and not in terms of itself. This is because, in the end, we are the ones determining the way it works and who it benefits. Maybe with this functionalist understanding we can better wield the public force, employing it for good instead of in the direction dictated by our inherent human and societal evils.

That's legal realism in its aspiration, summed up neatly.

I think you've got the plan right in this draft. I've tried to comment on the development of your idea to further the editorial process. You see how to proceed, and the next draft will be a substantial improvement.