Justice, Play, and Politics

• Citation: Vol. 66 No. 2
• Publication year: 2015

Justice, Play, and Politics

Eugene Garver

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Justice, Play, and Politics

by Eugene Garver^*

Justice as Play¹ is a highly illuminating gloss on Coke's idea of the law as "artificial reason," and one of its merits is that it is equally about the law as artificial and as reason. While he leans on Huizinga to talk about justice as play, Jack Sammons deepens the analogy by another meaning of play, celebrating the venerable connections between the trial and the drama as relatively insulated arenas for developing alternatives to the existing political order. According to Jack, legal argument can be regarded as play because of that relative insulation. So I want to turn from judicial to deliberative and political reasoning and ask whether it too can be regarded as play, in spite of its not having several of the features that Jack singles out to make his analogy.² To be quite unfair to Justice as Play, one could say that it argues that justice, and legal argument, is play because political argument is not. I am interested in what we can learn about political argument from thinking about legal argument as play.

I also want to ask a question Jack does not ask: if legal argument is a game, what sort of game is it? Justice, as embodied in trials and other legal proceedings, is a very peculiar sort of game. One set of people plays and another pays. The best analogy I can think of is cock-fighting. In addition, one often has to participate, while in most games, playing is optional. So I want to use Justice as Play as a place to look at the nature of representation.³

Justice is play because it has a certain freedom from politics, a freedom that, as Jack notes, is a privilege granted by the political

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community.⁴ A cynic might argue that relative autonomy opens up a space for a non-threatening venting of ideas that would be dangerous if taken seriously.⁵ This is play as the contrary of the serious, so one challenge for someone treating justice as play is to show how its ludic aspects don't make it frivolous.

The analogy to tragic drama brings out one respect in which legal argument is artificial reason. The participants who meet as adversaries are actors. They separate their dramatic personae from the identities they have outside the courtroom. They speak for other people. They speak in a stylized, artificial language that is designed to make everyone constantly aware of the artificiality and conventional nature of the combat. Aristotle insists that the ethos that is the most authoritative source of proof be an ethos constituted by argument, not antecedent reputation. The evident artificiality of the courtroom promotes the recognition of this artful ethos. Jack expresses the artificial and so self-contained nature of legal argument beautifully:

The judge and jury are to do nothing that would render the "we" whose definition is at issue static and known, nothing that would render the "persons" appearing before the court anything less than the singularities they are, and nothing that would jeopardize the open and ongoing nature of the conversation. We give the most credence, as did the Greeks, to those decisions that are made in public in conscientious avoidance of these prior commitments.⁶

Put in more usual vernacular language, judges don't legislate from the bench. Even when an equitable decision corrects the laws, it only corrects them for that particular case. More generally, legal argument and the judicial decision are temporary islands of definiteness in a sea of prior and posterior indeterminacy. The good legal argument and decision leave the world as indeterminate as they find it.

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The artificial character of rhetoric is clearer in judicial than in deliberative argument. The audience knows that lawyers are advocates for their clients. But the audience has to evaluate the arguments as making a case for the justice of their client's cause, not the performance of actors. To anticipate, representation here is transparent-we see through the lawyer to the client. We have to ignore the fact that lawyers' statements are interested by concentrating on the characters the actors play, and refusing to acknowledge that they are players. This is, in Coleridge's term, the suspension of disbelief.

In Rhetoric III Aristotle offers the common maxim that the best art conceals the fact that it is art, and the best rhetorician looks natural. Judicial rhetoric is an exception. Judicial rhetoric has to be a game that makes its artificial nature clear through the formalities that insure that we don't conflate the actor with his role, just because the audience has to be made to care about the best result. They themselves have nothing at stake and so might favor one party over another for all sorts of extrinsic reasons. That is, in judicial rhetoric, unlike deliberative rhetoric, they might make a judgment solely on the performance values of the contenders, judging them, as we might say, aesthetically rather than judicially. Jurors shouldn't award style points. The artifices of the trial might invite them to do just that, but Aristotle sees it the other way around. Formality generates solemnity that makes the jurors take their job seriously. One hint of how people can be made to care about the just result, rather than praise the best performance, comes in Rhetoric II: people "do not praise the same things openly as they do secretly [ou phanerds kai aphanos] but to a great extent praise the just and [the noble] while privately they wish rather for what is to their advantage."⁷ The artificiality and formality of judicial rhetoric encourages people to praise the just and the noble.

The analogy to play exposes the ambiguity here. The judge and jury are supposed to decide on the evidence, but can't be counted on not to be attentive to the pleasures of performance detached from any sense of justice to the contending parties. In the same way, the American system of judicial rhetoric engages professional adversaries supposedly in the interests of equality, so that the decision does not depend on the skill of the parties, which is irrelevant to the rights and wrongs of the case, but the inequalities of advocates just replaces that of the clients.

In an excerpt I will return to, Jack says:

Clients with strong and strongly conflicting intentional goals-often understood by themselves as principled differences-represent the

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ancient risk of a return to violence. What the lawyer does, then, is what the Greek rhetorician did: translate this potential for violence into a literary game that is always a conversation about the community itself. The lawyer does this, while keeping the clients together within the community, by speaking to it for them. Just as before, what stands between right and might, between justice and power, between conversation and violence, is a game. This game is only sustainable, however, because of the willingness of others, most especially the political other, to attribute justice to the judgment of an audience of judges and jurors—people intentionally removed from the ways in which we most commonly make our decisions.⁸

Lawyers "translate this potential for violence into a literary game."⁹ Jack's picture strikes me as too rosy. Zealous advocates can turn a disagreement into something much more polarized, something that turns out to have more potential for violence than the original dispute. Rights are heavier weapons than desires. Even when advocates and their clients are fully committed to accept the verdict of a judge-and that is not always the case-the game of justice can as easily raise the temperature and the stakes of a dispute as cool it off. Lawyers represent clients by amplifying their voices. To the extent that law does not involve violence, it is because politics does.

Legal argument is artificial in another way. Justice is reduced to the justiciable. Controversies are only justiciable if two parties can participate. Harms, no matter how serious, lie where they fall unless you can find someone else to blame. An act of God is not justiciable. If a defendant is not competent to assist in his own defense, or if the government cannot defend itself without revealing secrets, there may be justice involved, but not legal justice. "Political questions" are not left to judicial decisions.¹⁰ Therefore, "Lawyers as advocates have often insisted that the justice that is their responsibility is a world apart from

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the actual and that this justice is approachable only indirectly, perhaps metaphorically, through the procedures and argued alternatives of adversarial rhetoric rather than directly through dogma."¹¹ I will return to the idea of metaphor later. I will also question the idea that the alternative to adversarial rhetoric is "dogma." There are more alternatives available. First, we are told that the alternative to law is violence; here it's dogma. In both cases, politics and legislation is a further alternative.¹²

There is another side to law as artificial reason that the analogy to games could illuminate. The combat in the legal trial is limited, which is why it is seen as an alternative to violence. When the case is over, the lawyers take off their masks and return to their normal lives. Except in the case of capital punishment, even the clients engage, through their surrogates, in limited combat. They might lose all their money or reputation, but they are able to go on to participate in further litigation.¹³ They continue as members of the community.¹⁴ In an age of total war, legal controversy is always limited. For this I turn to Jonathan Shay:

Democratic process embodies the apparent contradiction of safe struggle. . . . Democratic process entails debate, persuasion, and compromise. These all presuppose the trustworthiness of words. The moral dimension of severe trauma, the betrayal of "what's right," obliterates the capacity for trust. The customary meanings of words are

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