Mark's got a new post up on his site entitled "Do You Love the Law?", that I actually found myself agreeing with more than I do with most of his articles. The whole article is a rant, but it's an enjoyable one:
The law is a street fight. It’s trench warfare. There’s nothing beautiful about it. It’s inelegant, messy and dangerous. Sometimes the right side loses. Often everyone loses.
He cites (in the comments) that what set him off was the latest issue of the Texas Bar Journal that (to use his words) "was filled with pompous asshattery".
But I think he brings up an interesting topic to those of us who practice criminal law.
Do we do what we do out of a love with the abstract "Rule of Law" or because we like to just fight for what we individually believe is the right thing?
It seems in foggy, hung-over haze from law school, I recall learning something about an old-timey justice systems where it was divided into two parts: the Courts of Equity and the Courts of Law. The Courts of Equity always seemed a lot more reasonable to me, um, probably because they were equitable. The Rules of Law were a little stuffy for my taste.
But of course, the problem with the Courts of Equity, (and, by Mark's analogy, our "street fight") is the Equity is often in the Eye of the Beholder. I have a friend of mine who likes to jokingly refer to himself as "The Ultimate Arbiter of Reasonableness". I suppose he would make a great judge in a court of equity, but let's say that, instead of him, we got somebody like Idi Amin.
I'm sure old Idi would think that he would be a tremendous guy in deciding equity. The rest of us, not so much.
My point is that the Law, in my mind, is a necessary evil, and there is certainly little about it to "love". It's there as a protection against the unreasonable mind running a twisted version of "equity".
And the sad thing about the law, is that there is just too damn much of it. And it can all get twisted in an intellectual argument so that God knows whether the true ends of Equity are ever really being served. Mark is right. The wrong side sometimes loses.
There is a bar in Downtown Houston that I went to a couple of times a few years ago. Attorneys go there and drink.
When I went, I noticed that at one section of the bar was a table where a couple of prosecutors sat with a couple of criminal defense attorneys. They were laughing and talking with each other about all kinds of topics that ranged from criminal cases, courthouse gossip, to their home lives. They all seemed very comfortable with each other.
At a table nearby, there were a group of civil attorneys, talking about the majesty of the law, and how through a certain provision in the Code of Civil Procedure, something was going to happen that dealt with a lot of money, or somethingorother. All they talked about was the law.
The members of the two tables never spoke with each other (other than a polite nod or two).
Please don't get me wrong, I'm not making fun of the Civil Attorneys, but I think that when it comes to those of us who practice criminal law, that Mark is also right. We (rightfully) consider ourselves to be street fighters. The civil attorneys are playing with money. The criminal attorneys are fighting for lives. Lives either lost, damaged or in danger of being forfeited.
We do look at the civil guys a little differently, because we have been down in the trenches. We have fought life and death matters. They have not.
It's okay, though. The civil attorneys look at us a little differently too, but that's mainly because we're poor.
The law is often times the biggest obstacle to achieving equity, I think.
I'd much rather live in a world where the kid caught with weed had to call his parents and let them scream at him, rather than get arrested. I'd rather deal with low level narcotics cases with mandatory treatment.
I would imagine the defense bar would like me for my ideas on equity in those kind of cases.
But on the flip side of that, my sense of equity would lead me to a world where people who hurt or sexually abuse children would be beaten to death with two-by-fours. Thieves who just steal for the sake of stealing (as opposed to trying to feed their family) would get a huge kick in the crotch and then released by loss prevention. People who murder? Well, that's just going to depend on the type of case it is. If you committed a mercy killing, you are probably going to be alright in my world of equity. If you killed a child under six years old? You would be wishing for something as peaceful as a lethal injection.
The bottom line is that the law does lead us to be unnecessarily harsh sometimes, and sometimes it is all that keeps us in check. I don't know if I would go as far to call it a "whore", as Mark does, but I will definitely call it a stubborn damn mule at times.
So, I guess we just all have to go back to work on Monday and keep our street-fighting ways going for another day -- striving for life, death, freedom and equity within the Courts of Law.
But none of us will find any sort of majesty in the "Rule of Law".