Justice as Play - Jack L. Sammons

• Citation: Vol. 61 No. 2
• Publication year: 2010

Justice as Playby Jack L. Sammons^*

Although we are many, we shall speak concisely. Answer us verse for verse by taking turns. Tell us, first, if you killed your mother.

Aeschylus, Eumenides 585-87¹

I am interested here in using Johannes Huizinga's work on play, Homo Ludens,² to explore a strange, yet civilizing, phenomenon. Why do we take those social disputes in our ordinary lives that often seem most serious and therefore most divisive, turn them over to playful participants in a legal game, and then choose, more or less, to call the outcome of this game justice and to trust it as such even to the point of preferring it to the political? Why, that is, do we think that it is justice that arises from this play?

This inquiry is not quite as broad as it may seem, for the justice I have in mind here is the justice that is carried as an internal good of the legal conversation. It is not the justice we might mean when we say a law or an action or a person is just or when we use the word justice in many ofits other forms. It is, however, rather closely related to what we mean when we say that a society is a just one. The justice here is the justice of justice was done, but in the procedural sense of doing that refers to the legal conversation's having gone well on its own terms. It is, in other words, the justice best described, and most admired by lawyers as advocates, with reference to the manner in which a particular legal dispute was resolved through the conversation for which these lawyers are primarily responsible. By defining justice this way, I do not suggest that only lawyers appreciate this justice or that it is only a lawyer's justice. For the ideals of the legal conversation are accepted by our community, for the most part, as providing something it is willing to call justice.

When members of our community complain of a legal judgment, as they often do, they do so legitimately by faulting in some way the legal conversation that produced it: a violation of a rule, a failure of some of the participants to be true to their roles, or some claim about the playing field not being level. Of course there are those within our community who insist that the justice carried by the legal conversation is not justice at all and that they know what the outcome of legal disputes should be in some manner external to it. Often theirs are the voices that seem to dominate popular culture, but I would insist that even popular culture recognizes this form of justice and bemoans its absence, for example, in other cultures.

As the use of the term playing field may have revealed, I will argue that this justice depends for its recognition as a form ofjustice, and thus for its civilizing effect, upon being play and game in Huizinga's terms.³ While this claim may initially seem perfectly compatible with Huizinga's work, it is instead a challenge to it. For Huizinga, I think, is not at all sure what to make of the relationship between justice—in which he discerns, with a force of seriousness that "whelms" the question⁴ of what is play and what is not, a true and overarching "moral content"⁵ —and the modern lawsuit which, while it retains certain praiseworthy Greek agonistic elements, he thinks most resembles the unrestrained, indeed unruly, rhetoric of the Roman lawsuit.⁶ It is a "verbal battle," Huizinga says;⁷ and while it includes elements of play, it is not for him true play nor capable of play's civilizing influence upon culture that he so admires.⁸ He is not at all sure that there is a good internal to this verbal battle by virtue of which we should call its outcome justice.⁹

There are, I am certain, other ways of reading Huizinga's Homo Ludens on this subject. (His thoughts on law and play occur only in one short early chapter,¹⁰ and he never returns to the subject, as he does most of his others—not even in the overviews of the concluding chapters.) Nevertheless, what I have just said seems the most straightforward reading of him on the relationship of law to play, and the one most consistent with what he says about the relationship ofplay to other modern activities.¹¹ Notice that when Huizinga says law he means lawsuit or, as I have termed it, the legal conversation. It is important to what follows here to recognize the difference; for we are not discussing the state's creation and enforcement of social rules (and whether or not they are just ones), but the process by which the meanings ofthose rules are determined for their enforcement: a conversational process that operates as a restraint on the state's use of force, as a reduction of the general to the particular, and as a continuation of the rhetorician's ancient fear of written law.¹²

The trouble Huizinga has in seeing justice as an internal good of the legal conversation is obviously a very old one. When he says that "[i]t is the moral content of an action that makes it serious," he is talking about combat,¹³ and he goes on to say that "[w]hen the combat has an ethical value it ceases to be play. The way out of this vexing dilemma is only closed to those who deny the objective value and validity of ethical standards."¹⁴ Yet, as applied to the combat of lawsuits, this solution to the "vexing dilemma" is itself vexing. For lawsuits are about the value and validity of competing ethical standards expressed in legal terms; they represent a social denial that such disputes can be resolved objectively if what is done in resolving them is to be called justice.¹⁵ Thus, when Huizinga turns to the legal conversation, those rules and requirements offair play—with which, he strongly concludes, civilization must always be played¹⁶ —are themselves in doubt.¹⁷ And the ques- tion at stake is, often enough, which one ofthe disputants is Huizinga's feared "cheat"—"the spoil-sport shattering] civilization itself."¹⁸

I point out this difficulty not to call into question any particular aspect of Huizinga's good work, nor to question his foundational assumptions about civility, nor even to ask which game it is in which they arise from play. I wish only to suggest that this difficulty is why Huizinga could not see the elements of true play that remain in modern lawsuits; why he could not see those elements of the legal conversation that exert a civilizing influence upon our culture; why, that is, he could not see its play as justice.¹⁹ Huizinga was surely correct when he wrote,

We moderns cannot conceive justice apart from abstract righteousness, however feeble our conception of it may be. For us, the lawsuit is primarily a dispute about right and wrong; winning and losing take only a second place. Now it is precisely this preoccupation with ethical values that we must abandon if we are to understand archaic justice.²⁰

But he spoke more than he knew. For this preoccupation, in the form it takes in his work, must also be abandoned ifwe are to understand the current legal conversation's civilizing potential.

If we are to see this justice as play, we must try hard to abandon our current assumptions concerning what the legal conversation is and is about. Then we may be able to appreciate anew its formal elements as a game: constitutive rules,²¹ a "lusory attitude" toward those rules upon which the game depends for its continuation;²² and, most important for present purposes, its insistence upon a certain playful "disinterested-ness"²³ or, as I will call it here, an alterity or otherness, while also appreciating its archaic Greek elements: agon, ritual, chance, and most difficult of all, the remaining elements of sacredness and the divine.²⁴ It is to this rhetorical task that after a few preliminary matters, we will turn by way of the ancient Greeks. We do so not to define the legal conversation by origins that may well be only the product of my imagination, but to attempt to reopen our understanding so that we can perceive the conversation anew.

I.

The tradition whose origins we will be exploring here is the tradition of legal rhetoric, of legal casuistry, and of the emergence of a culture of argument supporting the art of this casuistry. Before starting, and in the interest of clarifying the distinction made above between law and the legal conversation, we need to separate the lawyer within this tradition—the Greek tradition of the lawyer as advocate and the advocate as rhetorician²⁵ —from the more Roman commercial tradition of the lawyer as scrivener or, in its modern form, the transactional lawyer.²⁶ Of these two it is the tradition ofthe lawyer as rhetorician that is dominant in the United States and most merits our attention. The ethics of the practice of law, including its virtue ethics and its ethical regulations, are almost entirely based upon a conception of the lawyer as a zealous advocate representing clients in the resolution of certain social disputes and with the dual obligations of providing meaningful participation to these clients while maintaining the conversation in which this participation can occur. We see this same dominance in the figure of the lawyer as routinely imagined in popular culture; rare it is to find stories about transactional lawyers even though it is possible that most modern legal work is transactional.

This rhetorical and ethical tradition of advocacy, we should further observe at the outset, has been subject to what Peter Goodrich describes as antirrhesis attacks upon it.²⁷ These attacks arise when dogmatic conceptions of the law spill over to nourish interpretations supposing that the law expresses a truth (and typically a supporting theology) that can be revealed and used without the need for true and fully human mediation in applying it.²⁸ Goodrich describes these attacks as "belong[ing] to those epochs of legal rule in which lawyers have misunderstood the relation of oratory to ethics and of theater to legality."²⁹

However, these attacks seldom have come from the advocates themselves,³⁰ for whom a dogmatic conception of law would create...