Rule of Law or Rule of Lawyers?

It is something of an irony that due to the Hollywood writers’ strike, the Netflix show Suits is enjoying a new burst of popularity at precisely the same time as Donald Trump’s suits are trying to figure out a way to mount a defense for a client every bit as difficult, demanding, and self-destructive as any that had ever appeared on the show.

In Suits, where corporate law is portrayed as blood sport, to achieve both victory and massive fees, a bevy of ordinary looking men and drop-dead gorgeous women—as if Harvard Law School had merged with Ford Models—go right up to the very limit of the law, and occasionally stray over it.   In Trump’s cases, his lawyers, having prudently demanded massive fees in advance, will also be forced to go right up to the very limit of the law, and occasionally stray over it.  In Suits, the good guys (meaning the stars) usually find a way to win, often in the last ten minutes, while in the new Trump reality show, The Defendant, victory might prove more elusive.

As with Netflix and Suits, cable news has leapt on the trials of Trump with the sort of microanalysis popular with sports fanatics and seen on shows such as Hard Knocks.

This all might be highly, and in Trump’s case, perversely, entertaining, but reducing law to gladiatorial spectacle not only trivializes the underlying issues, but also distorts, if not obliterates, what the law, at least American law, is supposed to be about.

In theory, our laws are put in place to try to assure fairness and provide the means to create a just society.  While what constitutes a just society is a matter of some contention, most Americans believe, or at least claim to believe, that the Constitution and the jurisprudence sprung from it are representative of our nation’s attempt to provide both equal opportunity and equal treatment.  The result is what cable news commentators regularly refer to as “the rule of law,” or, as John Adams anachronistically put it, “We are a government of laws not men.”

But are we?

During the rape trial of William Kennedy Smith some years ago, his defense attorney, Roy Black, was asked if the Kennedy family’s enormous financial resources was in effect allowing Smith to buy a not guilty verdict.  Black was unapologetic.  He merely shrugged and replied that this was our system of justice.

The ability to spend millions to purchase legal advice and then tie the system in knots with motions, delays, technicalities, and questionable readings of statutes may be the way our courts work, but it is hardly justice.

In 1748, Charles Louis de Secondat, Baron de Montesquieu, published his classic The Spirit of Law, in which he laid out the principles under which a just society must function.  As Montesquieu saw it, the ideals underlying the law’s creation should always be more powerful than the technicalities of its language.  Although the law must rely on language—how overriding moral principles are expressed in the written word—if the principles underlying the words are lost, justice goes right along with it. 

One would never know that watching our current legal process play out, either in fact or fiction.  Parsing or manipulating language has become the means by which men and women with law degrees attempt to mold the law to match their particular points of view or political agendas, and the fees lawyers command, either in the courtroom or on cable news, are often pegged to their ability to do so effectively.

And of course, that focus all too often moves from those in front of the bench to those sitting behind it. 

When language ceases to be the tool of the law, and the law becomes the tool of language, the results can be disturbing.

Parsing language, the Supreme Court ruled that Black people and white can be legally separated, that a woman has no right to determine whether she wants to carry a child to term, that a person who might be mentally ill has the right to carry a gun into a shopping mall, that a seventeen year-old girl can be sterilized because she is thought (wrongly, as it turned out) to be mentally deficient, and that more than 100,000 totally innocent Americans of Japanese descent can be forced into concentration camps on the grounds of “national security.”

There is a flaw in formal logic called reductio ad absurdum, in which an argument that appears to follow all the rules leads to an absurd conclusion.  And the conclusions reached in those cases, that the American Constitution mandates the denial of the fundamental rights of some to suit the private prejudices of others are just that—absurd.

Or so we hope.

As such, when Americans breathlessly watch the next episode of The Defendant and think they are watching Suits, they should not lose sight of the fact that when the law is trivialized by being reduced to theater, it serves only the actors and not the audience.