Generally speaking, Rosenbaum argues that the law as it operates today is deeply immoral. I do find some aspects of the law to be immoral, and I often think that the law is amoral. After all, if Holmes was right in saying that justice was not done in courts, then the law will be amoral. Rosenbaum addresses some of these issues, but he doesn't approach it in the right way.
First, he is right to focus a lot on how the justice system fails to take an interest in truth. It is a fundamental fact of our court system that the court will not take account of all relevant information. Relevant hearsay will be excluded because it is unreliable. Incriminating evidence will be excluded if it is acquired through unconstitutional means. Moreover, the judge is not in charge of the trial--he has a responsibility only to manage the trial, not to direct it. The evidence brought before a jury or judge sitting as fact finder are the facts chosen by the attorneys of the litigants. As such, the court only "learns" those things that lawyers choose to tell it.
Civil law systems are admirable in this way. Generally speaking, civil law courts are more interested in "the truth," and will seek it out even when the lawyers refuse to present it.
The problem with Rosenbaum's book, however, is that he isn't interested in truth as facts or truth as it relates to reality. Instead, he is interested in emotional truth. That is the single biggest flaw in this book. He assumes, without argument, that morality is essentially a matter of emotions. That emotional harms are moral wrongs, and moral wrongs produce emotional harms. Furthermore, he assumes, again without argument, that religion provides moral guidance and therefore that morality is an issue of the spirit. As someone who isn't religious, a lot of this language bothers me, and detracts from his argument.
The second biggest flaw in his book is that he has developed a specific belief about how to remedy the emotional harms he sees in the world. This is not a book written by a philosopher. It is written by a novelist, and consequently, he believes that emotional harms are to be remedied by story telling. That sounds nice and it is undoubtedly true in many cases, but it doesn't account for a lot of human experience.
Let me discuss some examples:
Sometimes what's right is simply obvious, because its opposite is so clearly wrong--like failing to apologize or acknowledge someone else's pain. We were taught these basic moral lessons as children, and we have conveniently forgotten them as adults. The very things that we were properly warned not to do as children, like lying, blaming others, and failing to take personal responsibility for our actions, underlie the lawsuits that crowd our dockets and choke the decency out of our morally challenged legal system. (The Myth of Moral Justice, 2005, at 14-15.)
This is essentially true. One of my major problems with the legal system is my perception that the wrong kinds of cases end up in court. I believe that the law should operate for the people of this country, actual people, and not for the sole benefit of corporations. Corporations, however, by their nature are more likely to end up in court. And when they do, they tend to refuse responsibility for their actions. A friend of mine related the story of a deposition in which the attorneys representing a corporation were so belligerent with plaintiff that she broke down and cried. In this case, the corporation had admitted liability and was having a trial on the issue of damages. The attorneys' responsibility to their client was to ensure that the damages were as small as possible, and they were willing to act immorally to ensure they achieved their goal. A full admission and acceptance of responsibility would include paying damages, not berating a young woman who has already been injured by the company's negligence.
In some very basic ways, the legal system asks people to act in ways that are manifestly immoral. Rosenbaum takes this argument too far, though:
A technicality allows you to avoid responsibility because the conduct doesn't--literally or technically--rise to the level of an infraction, or something else intervenes to cancel it out. Technicalities also have a way of obliterating the story when a court of law gets overly bogged down in bureaucratic minutia and becomes more interested in going by route rather than doing what's right. . . . (MoMJ 115)He goes on to discuss how 4th amendment violations can lead to letting criminals go free. That's all a very standard and very tired argument about criminal justice. What's going on in such cases, however, isn't a lack of moral justice. It is much more likely to be a specific belief overwhelming our sense of what justice should look like.
His point about technicalities is really dumb. He says that you can avoid responsibility based on a technicality because it doesn't rise to the level of an infraction. What he is arguing for is lowering legal standards so that people can be punished or liable or otherwise held accountable for things that aren't currently illegal. In his view, it seems, someone should be liable for their actions even if they don't fit the legal definition of negligence. After all, just because you technically didn't cause any damages, you can avoid responsibility for your actions.
Of course, that's the point of a lot of law, or to put it another way, Rosenbaum's point is self-defeating--it would create a feedback loop where responsibility is continually forced downward so that people are responsible for more and more. He makes this point himself:
Rule 12(b)(6) of the Federal Rules of Civil Procedure . . . demands that a case be dismissed as a matter of law, because of the plaintiff's failure to state a legal claim upon which relief can be granted--even if everything the plaintiff is alleging is true. Although the allegations are true, the claim may not actually violate the law, or is framed in a technically improper way. . . . To those without law degrees, and hopefully to some who have them, Rule 12(b)(6) naturally seems absurd. If the plaintiff is telling the truth, why shouldn't he be allowed to tell his story in front of a judge and jury? (MoMJ at 116-117)This is patently stupid. No matter what you do, if you sit down and write a law, there are going to be minimum standards that have to be met in order for a violation of that law to occur. That is the nature of law. Rosenbaum's position would demand the destruction of law itself, because he would allow anyone to come to court for any reason whatsoever even if it doesn't violate any law. Rule 12(b)(6) may sometimes be used to get rid of improper claims, but it isn't in itself an example of how the law is immoral.
His point about constitutional technicalities also doesn't withstand criticism. Rosenbaum goes to great lengths to discuss how the exclusionary rule is immoral. But this is a failure in his conception of morality. As I pointed out above, he conceives morality primarily as a matter of emotional harms. Consequently, in his view, if an emotional harm goes unremedied because of an improper search or seizure, the law acts immorally. But there are plenty of immoral acts that have nothing to do with emotional harms. Honesty is one example: We are taught to be honest, but we often lie in order to protect a person's feelings. In that case we are being immoral but avoiding emotional harms.
Similarly, the constitution exists in part to protect us from an overbearing state--it is not about emotional harms. It is supposed to ensure that the government does not harm us without proper approval. I believe it is immoral for government officials to act in ways that violate the constitution. The constitution isn't a set of technicalities. It is a moral guide for the government. Is it more moral to violate the constitution in order to tell someone's story? The answer isn't clear, but Rosenbaum doesn't even consider the question.
That's enough for right now. Let me summarize by saying that Rosenbaum's argument focuses too much on emotional harms as the source of morality, i.e. he assumes that something is immoral when it produces an emotional harm but does not consider other forms of morality; relatedly, he assumes that morality is a product of religion and does not have other sources (this is a significant critique I want to discuss further); and finally that some of his arguments are inconsistent with any conception of law.
I am imagining this will be at least a three part series. In the next part, I want to discuss some of the things he gets right.
