In-Print symposium: The myth of moral justice

• Author: Thane Rosenbaum
• Position: Novelist, essayist, and the John Whelan Distinguished Lecturer in Law at Fordham University School of Law
• Pages: 3-10

Page 3

Introduction

I wrote The Myth of Moral Justice,¹primarily, as a moral critique of the legal system. In examining the rituals and practices of the law under moral criteria -its obsessive focus on zero-sum contests, its dedication to cold rules and procedural technicalities over human emotion, its failure to acknowledge the spiritual pain of those who come before it, its inability to create an atmosphere where apologies, reconciliation, and the restoring of moral balance to relationships is possible, its preference for judicial economy over truth, its privileging of secrets and indifference to lies, and its failure to promote an atmosphere of mutual caring and connection by not imposing a duty to rescue- the book is an indictment of the legal system for smugly believing that the correct legal result is necessarily consistent with the right moral outcome.

Evidence and procedural rules, attorney-client privileges, settlements and plea bargains, the hostility of adversarial proceedings, all severely undermine the storytelling, truth-seeking dimensions of what people expect when they come before the law. And this failure lies at the heart of why moral justice is merely a myth. A legal system that cares mainly about applying the law in mechanical, overly technical, and soulless ways to the exclusion of other values is not a legal system that is interested in making sure that its judgments make moral or emotional sense to those who look to the law for wisdom, guidance, and resolution.

But more broadly, despite its focus on developing a unified theory of justice, the book speaks to something that transcends the law and the legal system. What I perhaps did not realize when I first conceived ofPage 4 this book was that the legal system was only one facet of a larger underlying social criticism. The Myth of Moral Justice challenges society to engage in a moral conversation about the legal system. That, to my mind, is its best contribution to reform. But that conversation applies equally, or at least should apply equally, to other professions, institutions, and patterns of human behavior. The audacity of the book is not that it takes on the legal system, but that it does so on moral grounds, subjecting the law to moral scrutiny.

Invoking moral issues and adopting them as part of the public discourse is not something American society -or at least a particular segment of society- is comfortable doing. Whether acknowledged or not, there is a split between the legal and the moral in the American legal system. And it is not even a conscious split. The moral issue is simply not part of the picture, and no one seems to be alarmed by its absence. That is because legal decision making and moral consciousness are not the same things, and no one is particularly troubled by the lack of integration between the two.

Distorting and manipulating the truth, perpetuating lies, confusing administrative justice with fundamental notions of what is just, subjecting legal outcomes to a hostile knock-down, drag-out sporting contest where the goal is to destroy one's adversary, silencing victims and the aggrieved from speaking to their losses, injury, and betrayal, creating an atmosphere of implacable defensiveness and unapologetic self-righteousness rather than one of true human encounter and moral repair, are not examples of a moral system of justice. Yet these practices are not only perfectly legal, they are standard practice in our legal system.

The split between the moral and the legal also plays itself out in the wider world, which perhaps explains why the legal system only mirrors the surrounding culture rather than leads it by example. Doing the "right thing," as a governing philosophy, is not part of the professional mindset, or something that professionals believe in. Indeed, most people, when it comes to their conduct at work and the fruits of their labor, do not evaluate themselves according to moral criteria. We believe, or have been led to believe, that our moral and private spheres of existence stand separate and apart from our professional and public lives. Our duties as workers, our professional tasks, and our interactions in the public sphere, are not subject to...