Vol. 10 No. 2 (February 2000) pp. 115-118.

WHY LAWYERS DERAIL JUSTICE: PROBING THE ROOTS OF LEGAL INJUSTICES by John C. Anderson. University Park: The Pennsylvania State University Press. 236pp. Cloth $40.00. ISBN 0-271-01842-9. Paper $18.95.

Reviewed by Tracy Lightcap, Department of Political Science, LaGrange College.

As once we suffered from crimes, so now we are suffering from laws -- Tacitus

This book is interesting, engaging, and ultimately frustrating. It is interesting because of the character of its attack on liberal justifications for adjudication. WHY LAWYERS DERAIL JUSTICE is written from an Aristotelian viewpoint, but unlike other writers in this tradition, Anderson bases his critique on Aristotle's concept of equity and not on natural law. It is engaging because the book directly faces popular dissatisfaction with both the ideology and application of law in modern capitalist democracies. It is refreshing to read a book that takes the often incoherent, but heartfelt, revulsion for both the practice and practitioners of law among people in all walks of life seriously. Finally, however, the resolution of this book is frustrating. Anderson presents solutions to the difficulties he describes
that I find unconvincing. However, let us first look into the interesting and engaging aspects of this book.

The primary object of attack in this book is what Anderson calls the "legalistic fallacy" or the idea that justice is a property of procedural due process and the correct interpretation of the law instead of the results of legal decisions. There is no question that he is on to something here. As he points out, those outside the legal profession are increasingly dismayed by its intense concern about legal procedures and equal protection at the expense of rendering just decisions. Both legal practitioners and scholars know this, of course. Laments about the deficiencies of common knowledge about the law are standard living room fare for academic and lawyer alike.

Anderson sees public uneasiness with the legal system and its doctrines not as a problem to solve, but as a healthy sign of a yearning for justice. Why, he asks, does our common sense understanding of just and unjust results contradict legal definitions? Why do we succumb to "legal injustices" -- the paradoxical results that stem from the mistaken attempt to apply general, equally applied rules to a process that demands consideration of the individual circumstances of each case? What enables legal practitioners to avoid seeing the actual workings of the law as others in their community do? Anderson believes the answer is that we have been blinded by the theoretical justifications of adjudication developed by modern legal theory. Only by a detailed criticism of these justifications will we see our way to a true
understanding of the law and its place in our lives.

To accomplish this criticism means crashing full speed into modern legal

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philosophy concerning adjudication, or, to put it more simply, into Ronald Dworkin. Dworkin's justification of law in terms of its use by the legal community is, in Anderson's view, a rationalization for injustice. Dworkin's emphasis on fair procedures and consistent, equal application of the law ignores the need to consider individual merits and adjust the application of the law to achieve just results.

As readers familiar with Dworkin's work know, he bases his views on a variant of the original position argument. Imagine a judge with unbounded legal knowledge and no controlling material or moral interests --"Hercules" - attempting to adjudicate cases using existing law in an environment that produces legally ambiguous situations. Given these conditions, Hercules would have to interpret the law in order to render decisions. Those decisions could only be justified if he applied the law with "integrity" or. if the ruling is consistent with the best interpretation of existing decisions, is applied equally using fair procedures, and is consistent with the best reading of public conceptions of the role of law. If the law is applied with integrity, then it becomes a seamless web of authority (no "gaps") controlling human
affairs according to the best interpretation of a community's will.

A man is very wrong, at least in my opinion, who believes that power is stronger and more durable when imposed by force than when procured by friendship. -- Terence

As with many postmodern critics, Anderson attacks Dworkin's views for their abstract, ahistorical nature, circularity, and devotion to procedure. Here we find nothing new. The basis of his critique, however, is unusual. Instead of calling for a recognition of how unexamined assumptions built on cultural prejudices privilege certain interests and undermine fair adjudication, he calls for the abandonment of the ideal of impartial adjudication itself.

Anderson believes we should replace procedural due process and equal protection with individualized decisions that apply the law with epieikeia or Aristotelian equity. It is easy to be misled by adjectives at this point. Unlike most Aristotelian legal thinkers, Anderson does not base his critique of Dworkin's ideas on natural law. Instead, he calls our attention to how Aristotle incorporates practical wisdom into his account of how the law should be applied.

As Anderson presents it, Aristotle's account of the application of law is built around the notion of natural justice or the idea that just actions that emerge without - or in spite of - external constraints. Aristotle held that natural justice could be expected among friends or members of the same community but that it was unlikely that it would emerge between strangers. It is this natural sociability and the customs that arise from it that Anderson characterizes as the basis for epieikeia. It is epieikeia -- a willingness to use discretion based on communal sociability to temper the application of laws in individual cases -- that is missing in modern accounts of adjudication. Further, epieikeia can mend the break between popular and learned conceptions of the application of the law. Contrary to Dworkin's account, it is not
judicial interpretation of general rules and procedures to produce equal application of the laws that we need. Instead, in Anderson's view, we need to recognize the need for discretion arising from developed -- or developing -- communal attachments. Doing so will allow the practical wisdom stemming from knowledge of individual

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circumstances and of community mores room to work, thereby avoiding the excesses arising from decisions based on the abstract analysis of the law by legal professionals. That, in turn, would lead, not to an abandonment of the rule of law, but to adjudication which applies the law to reach just results.

Anderson clearly recognizes that he has given modern societies a tall order. He suggests a variety of legal reforms as first steps. The first and most controversial is abolishing professional licensing in the practice of law. In Anderson's view most legal matters are not complex enough to warrant excluding laymen from participating in their resolution. Further, licensing automatically excludes the range of experience needed to establish norms based on epieikeia and deprives the community of incentives to develop them. Other necessary political reforms include strict term limits with rotation in office, removal of sovereign immunity, the use of the English rule for lawyer's fees in civil cases, and reform of the governance of corporations. Since none of these actions would solve our problems overnight, Anderson
trusts in our basic rationality to lead us toward a more just legal system in the long run.

Ha! Actions! What a pettifogger you are! We are guided not by the laws but by our revolutionary conscience! -- Presiding Judge, Ryazan Revolutionary Tribunal, 1919

When I teach our introductory course in political philosophy, I always remind the students of Johnny Carson's axiom about comedy sketches: "You buy the premise, you buy the bit." Accepting for the moment that Anderson's interpretation of Aristotle is right, what can we say about his argument and the solutions it suggests?

It is here that I find Anderson's presentation frustrating. His basic premise is that we need to reintroduce communally based judgments into the adjudication process to insure just results. To accomplish this goal he advises us to de-institutionalize and simplify the legal process. The problems with adopting such a course in modern mass societies are encapsulated in the quotation above. What is the basis for communally based judgments in mass societies, which preclude the close personal and communal ties Aristotle postulated? This century has provided the answer: politically created communal identities on ethnic, class, or cultural lines. The results have
been disastrous and led directly to the procedurally based justifications for adjudication that Anderson dislikes.

No doubt he would find my criticism unfair. Anderson is not calling for using epieikeia as a restraint on law so that we can justify the Gulag or the death camps. However, he fails to tell us how we can recreate Athens in modern societies. To take the United States as an example, how can we create the social basis for Aristotelian natural justice in an industrialized capitalist democracy with a mobile population living in massive cities and guided by a political culture that has lauded individualism and competition for 200 years? I do not know the answer, but I know what happens when we try: "100 percent Americanism" and oppression of minority rights. I am as concerned about a creating a just legal system as Anderson is, but I am unconvinced by his blueprint for doing it.

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So what is my final verdict on this book? First, I think it could be useful in upper level undergraduate and graduate courses that are organized around controversies in legal theory. Suffice it to say that Anderson's sometimes-polemic tone and systemic, unusual critique of modern legal theory would be sure to stimulate discussion. For the academic reader, I must be more circumspect. I found this book useful as a challenge to some longstanding and unexamined assumptions I had about theoretical justifications for modern legal systems. Reading WHY LAWYERS DERAIL JUSTICE did not change my mind, but having to face Anderson's arguments was a useful exercise. I am not sure, but I suspect that was what he was after.