The principal role of the legal system within these societies is to create a political culture that can persuade people to accept both the legitimacy and the apparent inevitability of the existing hierarchical arrangement. The need for this legitimation arises because people will not accede to the subjugation of their souls through the deployment of force alone. They must be persuaded, even if it is only a “pseudo-persuasion,” that the existing order is both just and fair, and that they themselves desire it. In particular, there must be a way of managing the intense interpersonal and intrapsychic conflict that a social order founded upon alienation and collective power-lessness repeatedly produces. “Democratic consent” to an inhumane social order can be fashioned only by finding ways to keep people in a state of passive compliance with the status quo, and this requires both the pacification of conflict and the provision of fantasy images of community that can compensate for the lack of real community that people experience in their everyday lives.2
Society fashions this “democratic consent” through what has begun to be referred to as legal culture. Law has a culture of its own, including education, training, rules of behavior, philosophy, folkways, habits, language, economics, tradition, and stories. The courtroom is one of the key elements of this culture. The structure and rituals of the courtroom are intended to communicate the “three M’s” of the law: majesty, mystique, and might. The architecture of the courtroom divides the lawyers and the judge and his staff from the lay people. The judge’s seat is elevated above everyone else. There is an American flag near the judge, who wears a large black robe. There is a bailiff, usually a law enforcement officer in uniform, who enforces the judge’s rules for the courtroom. Sometimes these rules have no relationship to the process of justice. For example, some judges won’t allow members of the public to chew gum. When I was a law student observing a regular trial in Oakland Superior Court, I was told to leave the courtroom for chewing an antacid tablet. In the O. J. Simpson trial, Judge Lance Ito called a reporter into chambers for sucking on a cough drop. A number of years ago, in the United States District Court in San Francisco, the chief judge had a standing order that children were not allowed in the courtroom. My client’s wife was told by the bailiff to take her two children, aged ten and seven, out of the courtroom on the day their father was being sentenced to prison for five years. I refused to allow this clear violation of the Sixth Amendment’s right to a public trial, the First Amendment’s right of association, and the general constitutional right of privacy, which protects family relationships. Although the judge allowed the children to stay in my case, the standing order continued in force and lawyers continued to obey it.
Lawyers are coconspirators in perpetuating the alienation and symbolism of the legal culture and its message of power and authority. Let us travel through a typical proceeding with a criminal defendant and her lawyer. The defendant enters the courtroom through two large doors, stepping into a narrow aisle that leads to a half-sized pair of swinging doors through which she cannot walk unless accompanied by an officer of the court. She takes a seat in the pew-like benches behind the swinging doors. On the other side are large tables and fancy chairs. A podium stands in the center facing an impressive and elevated dais, and behind the dais is a marble wall covered in part by an immense American flag. A man in a uniform approaches those sitting in the pews, telling them to stop talking and reading newspapers. Then the lawyers, brandishing briefcases, enter the courtroom and take their places at the large tables. One of the attorneys nods at the defendant and she comes through the swinging doors to sit at the same table.
A man raps a gavel, crying “Hear ye, hear ye, all rise!” Another man wrapped in a flowing black robe enters through a door in the back of the courtroom and takes his place behind the podium in the dais. Only after he sits may the others be seated.
Names and numbers are called, passed, and continued for an interminable amount of time until the defendant finally hears her name. Her lawyer says he is filing a motion under section 1538.5. The district attorney says the charge is only a 415 and requests a conference in chambers. Court is then recessed for a discussion in the judge’s chambers. Afterwards the lawyers return to court and the man in the robe, continually addressed as “Your Honor,” asks the defendant a question. The defendant, finally part of the proceedings, succumbs to her attorney’s coaching and quietly answers “nolo contendre.” His Honor asks the attorney a question. The lawyer assures him of the repentance and good works of the defendant, which will be reflected in the presentencing report. Then the man in the robe dismisses all until the afternoon service.
As the defendant leaves the House of the Law she realizes that her case has been dependent on her attorney’s ability to translate human experience into legal dogma. She also understands that her future will depend on the judge’s acceptance of the defendant’s confessional as translated by her probation officer and attorney.
The lawyer, like the priest, is the middleperson between life and judgment. He suffers the initiation rites of his calling, wears its vestments, legitimizes its authority, speaks its language, partakes of its rituals, and maintains a monopoly on its mystery.
For the client, the lawyer, and the public, the result of this courtroom process is an acceptance of authority and a conditioned submission to its philosophy and rules. People enjoy rituals and symbols. Watching the court process is frightening, but it can also be exciting for the public. They feel secure observing authority in action. They admire and identify with the judges and the people in power, while at the same time accepting their own position as lower in the hierarchy of societal relationships. Just as a formal church service legitimates established religion, the traditional courtroom ritual legitimates the legal system.
Another major structural support of the existing legal culture is legal reasoning. This is a form of thought that presupposes existing societal relations. It does not allow for questioning of the political decisions that have led to our institutions. It makes it seem as though our laws are the inevitable result of human nature. The assumptions of the status quo can be found in every area of the law. Torts and real property law provide us with examples.
“Torts” is a required first-year class in every law school. It is also a word that those wide-eyed students can never adequately explain to their parents and friends. Basically, a tort is a harmful act committed by a person or a legal entity for which you can sue them. It is a civil case, as opposed to a criminal case. For example, if a person gets in his car and runs into your car on purpose, that is a criminal case for which he can go to jail. If a person gets in his car and runs into your car by accident, that is a civil case for which you can sue him for money damages.
In American law you cannot sue anyone unless they owe you what the law calls “a duty.” Drivers on the highway owe a duty to other people to drive safely. But in our country, an individual owes no legal duty to another individual solely because the two people live in a society together. Therefore, if you are at a public swimming pool and see a child drowning, you do not have to jump in to try to save him. Since you do not have a legal duty to this child, you do not even have to pick up the life preserver lying at your feet and throw it in the pool. You may have a moral obligation, but in America you have no legal obligation. If a lawyer brought a suit against someone at the pool for not throwing a life preserver to the child, the suit would be dismissed, probably without even a hearing in court. The law doesn’t have to be that way. We could have a society where people do not see themselves as atomized, isolated individuals. In many countries a person would have a legal duty to try to save the child.
In China there can be actual criminal penalties for failure to help a fellow citizen in a life-threatening situation. In 1995, a motorist was sentenced to two years in jail when he refused the pleas of a man whose wife was dying. The motorist was flagged down by the woman’s husband, who said she was gravely ill and pleaded with the driver to take her to the hospital. The motorist rejected the request and drove away. Under American tort law the motorist could not be sued, nor could he be prosecuted. In most law schools this example would not be discussed because our legal reasoning equates the isolated, nonresponsible human being with human nature.
Real property law affords another example of how legal reasoning presupposes the justice of existing societal