September 01, 2008

 

Some points to ponder....

From: TCS Daily
http://www.tcsdaily.com/article.aspx?id=012406J

Of Patriotism and Puppet Shows
By: Douglas Kern -
BIO
25 Jan 2006

"You've figured out by now," said the defense attorney, interrupting my self-righteous lecture about victim's rights, "that our job is mostly putting on a puppet show for the goobers, haven't you?"

He was one of those sly, razor-sharp criminal attorneys who prowl the rural counties of the United States - an insightful, reflective soul hiding his intelligence under a thick coat of good-ol'-boy affectations.

"The public wants justice the way they see it on TV," he continued, "with lawyers giving speeches and making motions and objections, and everything wrapped up by the end of the hour, just in time for cat litter commercials. And that's what we do. I listen to these goobers tell me their life stories and their pathetic lies, and I nod my head and sympathize and charge 'em my hourly fee all the while. Come the pre-trial conference, you'll make a deal that I'll know is fair, but I'll reject it with some crazy speech about how my client is innocent and demands a trial and blah blah blah. I'll file a bunch of motions with no merit at all, you'll win at the hearings, and I'll tell my client how he was robbed and how unfair the whole damn thing is - all for that hourly fee! On the day of trial, I'll take the moron into the library after letting him take a good hard look at the gathering jury pool. I'll put on my best grown-up voice, tell him his case is hopeless and that the prosecutor is an fool for offering such a sweet deal, but that he's a bigger fool if he doesn't take the offer right now, this very minute. So he takes the offer and pumps my hand, the county saves the cost of a trial, I get paid with checks that clear, and you... do whatever it is prosecutors do. I wouldn't know. We play the game, and the goobers think they get justice, and everyone is pretty happy."

"So this is all a game to you." I said. "Guilt, innocence, crime and punishment - it's all just a sideshow for the masses?"

"Look... justice is a hard, ugly thing. I don't know what's 'just.' Do you? A guy punches another guy in the face; breaks his nose. Does he deserve a fine? Prison? For how long? Who knows? We have to balance so many things: the guy's background, his family and who's gonna feed them, how crowded the jail is, the legality of the evidence... it's all arbitrary as hell. So we pretend. We give our speeches in court about what's right and good, and then we do what we must to make this community work. So, yes, it's a game. The object of the game is to get paid and go home at a reasonable hour, and a good puppet show accomplishes both. And I'd rather have a puppet show than have crazy idealist dum-dums like you waste time and money arguing about Truth and Justice and other egghead stuff that might start a war if anyone could figure out all those Latin phrases and five-dollar Ivy League words."

I dismissed the attorney's tirade as hot air from a jaded old ambulance chaser. But, eventually, every serious criminal attorney feels like a puppet in a show. You make your best arguments, you marshal the finest evidence, you rant and rave and wag your finger from the podium, and yet the judge and jury act with serene indifference to your pleas. The absurd legal fictions, the shadowboxing of motions and objections, the empty rhetoric of the opening and closing statements - these things don't seem to serve Truth and Justice. They are rhetorical props to bolster the faded majesty of the law. They are, in their little ways, noble lies.

I thought of my puppet-show conversation while reading National Review's the Corner this month. As a discussion of the motives of intelligent design advocates drifted to the broader question of "the noble lie" in free societies, Steven Hayward contributed this observation:

At the heart of the Straussian idea of esotericism is the idea that philosophical inquiry is always subversive because all claims to justice have weaknesses or inadequacies and therefore the basis of all regimes is potentially unstable. A political philosopher in a decent regime would want to be careful not to undermine that regime's decency through popular criticism of a regime's weaknesses, in which case a worse regime will almost always follow. The same line of inquiry that seeks to illuminate the weaknesses of claims to justice will also counsel the necessity of prudence that justice itself requires.
Liberalism eats itself. (And by liberalism, I mean the rights-based liberalism of Locke and the Founding Fathers, rather than the popular moniker for leftism.) Liberalism cannot accept its own validity because it cannot cease to pick at the scabs of its "weaknesses or inadequacies." Liberalism is a rational and open system of governance, and such a system encourages endless questioning and self-scrutiny. This self-scrutiny promotes honesty, tolerance, and moral progress, but it also breeds self-doubt and instability. Nothing is ever permanently settled when one really convincing argument can change everything.

Liberalism only accepts arrangements and authorities that can provide reasonable, convincing answers to the question "Why?" But all societies rest upon unreasonable and somewhat arbitrary assertions about what the good is, and how to preserve it. Inquiry into such assertions either ends in tautology ("It just is") or recourse to the transcendent; either way, such inquiry ends in the unanswerable. Liberalism will not accept "It just is" or "God says so" or even the lame compromise of "The nature of man requires it" as an answer. Such answers rest upon fundamental beliefs about the world rather than rational proofs, and liberalism can only tolerate beliefs - it cannot endorse them.

Moreover, for all its rationality, liberalism requires irrational sacrifices. It is irrational to vote, when your single vote won't matter. It is irrational to involve yourself in political controversies that will never affect you. It is irrational to volunteer to die in combat for your country, when you could stay at home and lead a rich, fulfilling life. A rational, liberal society will wither and die without citizens willing to act irrationally and illiberally in defense of rationality and liberalism. And yet liberalism cannot privilege such selfless, irrational acts; to the extent that liberal societies do so, they indulge in unprincipled exceptions.

To survive, liberalism cannot be entirely consistent. We conceal this fact from ourselves with noble lies, and puppet shows.

The dishonesty of the charade troubles us. Nagging in the back of the mind of every modern leftist (and not a few weak-kneed "conservatives") is the belief that anyone who berates the Western way of life has somehow figured us out. So Osama bin Laden denounces us as decadent and corrupt? The leftist denies the claim, and yet, deep down, an awful fear haunts him: he's on to us. Saddam Hussein decries his trial as illegal and immoral; the progressive disagrees, and yet he wonders: as no legitimate body authorized the trial, isn't this a case of might makes right? The Taliban condemns the West as sinful for allowing its women to parade around unveiled; the conservative is appalled, and yet in the wee small hours of the night he ponders: ours is a nation saturated in pornography and indecency, and we export our sins worldwide; do we deserve to be condemned?

At the national level, we compensate for our self-doubt by electing confident leaders. At the local level, we guard our cherished principles of justice with the vaudeville of law's majesty. Occasionally, every decent regime must make the puppets dance on the string, whirling and jigging and singing their songs of honor and dignity, while sordid deals are struck in the side-halls of democracy. Perfect liberalism requires much, much more than the kind of effort that hillbilly litigators and $35,000-a-year prosecutors can provide. But, eventually, every liberal society must entrust the daily implementation of its lofty ideals to underpaid men in cheap suits who deliver stupid speeches in rural courtrooms in order to get paid. And so, in the name of an ideal we revere but cannot fully achieve, the show goes on.

We who deal in the laws of a free people are puppeteers. We must be so. The law may be a turd in cheap cologne, but the lawyer's job is to pretend otherwise - because our system works better than any other, and because we have no choice but to make it work. We have to give the appearance that we possess the wisdom and authority needed to make our society function. We have to make believe that our culture possesses an exclamation point as strong and as firm as the question mark of liberalism. So on with the courtroom pomp and ceremony, on with the bluster and posturing! Dance, puppets, dance!

Does the indignity of a puppet show offend you? It shouldn't. You, too, are a puppeteer, and you are your own puppet. You, too, strut and fret your role on the stage of citizenship. You, too, pretend. Hardly anyone is good enough to be a fully responsible citizen in a free society; rare is the man conscientious enough, educated enough, virtuous enough, selfless enough, and attentive enough to execute all the duties that free citizens must perform. Have you sacrificed for the good of your neighbors? Fought in your country's wars? Resisted vice? Carefully considered and cast every possible vote, from president to dogcatcher? Paid all your taxes? Obeyed every law? Probably not. But we play the role of "Doughty Yeoman in the Virtuous Republic" just the same, hoping to be ennobled by the pretense.

And we are ennobled, at least in part. When it matters, the puppets go away. For example: when the crimes were serious and the legal disputes were real, we small-town red-state lawyers put aside our canned speeches and our false sincerity and lawyered the hell out of those cases - and achieved just and decent verdicts. For all the lazy half-assed paperwork, for all the Kabuki theater drama of pretending to fight cases whose outcomes were predetermined, we did our jobs when it counted, and we did them well. The same is true for most Americans. For all our faults as free citizens, we have preserved our freedoms against every enemy, including the worst foe of all: our own doubt and irresolution.

But men who doubt themselves need puppet-shows. They need little passion plays to affirm the dignity of a frequently silly and corrupt form of governance, lest something more dignified but less humane rise to power. Ours is a system of laws administered by flawed and small-souled lawyers to foolish and wicked men; such a system cannot survive without the pantomimes of solemnity. Perhaps conservative wisdom lies in knowing the truth of puppets, and what can be accomplished with their fragile wooden hands.

The writer is a lawyer and TCS contributor.

Copyright 2006 - TCS Daily

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