Unjustly accused

Plato observed that “those who have spent a lifetime in the study of philosophy appear ridiculous when they enter the courts of law as speakers.� Courtrooms generally are for resolving disputes and judging guilt, not for determining how men should live.Trials are limited to the parties and their causes of action to the exclusion of the profound and universal; ethereal musing on the nature of mankind are grounds for contempt: They also don’t sway juries. This explains why, if I am ever charged with murder, I’d rather have Johnnie Cochran by my side than a whole raft of deep thinkers.

In “The Myth of Moral Justice: Why Our Legal System Fails to Do What’s Right,� Thane Rosenbaum bravely attempts to bring philosophy into the courtroom. I say bravely because, as Rosenbaum concedes, some may find this effort “ludicrous.� His book seeks to explain why the law often fails to meet our subjective expectations of justice.

An attorney by training but, as he notes, an artist at heart, Rosenbaum has written wonderful fiction, and he brings great imagination to this task. If only he had approached the public policy implications of his subject in a more lawyerly fashion and been more careful about the substance of his arguments, his book might have been powerful. Though written in bold, forceful tones, the book declares, rather than proves, that our justice system is immoral; it asserts rather than persuades us that the guilty go free while the innocent are unprotected.

As a diatribe against the legal system, “The Myth of Moral Justice� will resonate with those who detest lawyers, distrust judges and feel disdain toward jurors. More open-minded readers, however, may find themselves lost. His assertions, like prophecy, are made with complete certainty but an utter lack of sourcing that leaves the reader crying out for supporting proof. Instead, the book relies on “novels, films, plays and TV dramas to illustrate just how immoral justice can be.� Keeping up as it darts from Dickens to “Legally Blonde,� Melville to “Matlock,� Shakespeare to “Seinfeld� is to suffer cultural whiplash. Rosenbaum’s point -- that the legal system would produce moral outcomes if real lawyers acted like fictional ones -- might be flattering to a writer of a TV drama, but it is not convincing.

Having lawyers act like Atticus Finch, however, is only part of the solution of “The Myth of Moral Justice.� The book is equally demanding of the citizenry. Rosenbaum would prosecute bystanders who don’t endanger themselves in trying to rescue others from harm. Turning bedrock principles of due process on their head, he inveighs against the law’s obsession with objective fairness, which he views as an unattainable fallacy, and advocates letting jurors decide cases not on the law but on their own sense of morality and religious faith. He would suspend constitutional protections to enable convictions of terrorists, citing as authority “the moral foundations of Ground Zero� and would abolish the “reasonable man standard� of liability because it reflects “pedestrian tastes and mind-sets, attitudes that reflect little ambition and honor.... Our model of legal behavior becomes the middle brow, the low bar of our most common denominators.�

Rosenbaum’s reforms, however, are not compelled by elitism or totalitarianism. Rather, they draw on the doctrine of tikkun olam, the Jewish ideal that each person endeavor to repair and heal a fractured world. He seeks to use law as a means not simply of achieving justice but of changing the hearts of humankind. This is to be accomplished by transforming our courts into faith-based centers where, among other things, spiritual harms are punished, human dignity is safeguarded, “soul murder� is a crime, moral precepts hold sway over precedent and religious principles guide judgments. By releasing participants of the court system from the mechanical strictures of civil law, Rosenbaum seeks to free an inherent, natural morality that he perceives in all of us.

In essence, what “The Myth of Moral Justice� advocates is something akin to divine law, handed down by the Lord or his winged surrogates in a clap of thunder. This kind of law has a number of advantages: self-authenticating legitimacy, moral infallibility and ethical purity.

But those of us living in this world are grateful to be subject to human law, a construct that is no better or worse than the officials who write it. Born in the sin of legislative compromise, tortured by paid advocates on behalf of their clients, mangled by ideologues and misinterpreted by judges, American law may not always produce justice, but it at least tries to emulate fairness, it is rule-based and it seeks equal opportunity. It is not perfect. But for the accused, it is certainly preferable to Islamic law, Talmudic law or any other law drawn up by someone claiming a divine monopoly on virtue, truth or morality.

In calling for the transformation of American courtrooms into healing centers where litigants are hugged rather than humiliated, lawyers feel rather than think and judges base their rulings on religious beliefs rather than objective standards of proof, the book will leave many readers scratching their heads.

Based on the author’s idiosyncratic philosophy, the book neither clarifies the complex moral challenges lawyers face nor does it advance the important cause of legal reform. The book never addresses how laws are made or how that process might inform the practice of law. Nor does it consider how other institutions -- public schools, religious denominations, the family unit -- might be better suited than the courts to address issues of the human heart. If courts have failed to make society more just, the logical solution may not be asking more of the courts. It may be demanding better leadership from the rest of our institutions, particularly our legislative and executive branches of government.

To be sure, Rosenbaum means well. But as a reformed lawyer, I can’t help but notice that he is compelled to save his law brethren even as he slanders them:

“We all have stereotypical images of lawyers, especially litigators, as pure Type A personalities, raw-meat eaters, crazed and maniacal, aggressive and competitive to the core, squinting through their ever shrinking tunnel vision.... Nobody likes these people. You don’t invite them to your house. You don’t want them near your children. You don’t want them breathing too close next to you.�

This disturbing passage is suggestive of a classic kind of self-hater: the attorney who loathes his profession. It is the hint of moral superiority that rankles. What is his claim to the moral high ground? He is an artist and thus uniquely qualified to “see the spiritual injury and the moral neglect of the law.� What, then, can a public defender, American Civil Liberties Union attorney or child advocate know of morality compared with him?

The son of Holocaust survivors, Rosenbaum also explains: “My father had been a lawyer, in Poland, before the Holocaust. After the liberation of the camps, he was never a lawyer again. Justice became a joke.� Ceding him some special moral authority because of his family’s experience feels right, but I am not sure it is the moral thing to do. The sins of the father are not to be imputed to the son, but is the suffering of one’s father transferable? Rosenbaum doesn’t say whether he became a lawyer despite his father’s experiences or because of them, but would the decision carry greater moral weight had he pursued justice in a different manner?

Perhaps his frustrating experience as a litigant has more to do with his disillusionment than the author lets on; as it is, he provides scant detail as to what the case was about, whether he was the plaintiff or defendant, and most important, whether he won or lost.

It so happens that I am a fan of Rosenbaum’s previous, highly imaginative fiction, particularly his novel “The Golems of Gotham,� which evokes Jewish mysticism in exploring the often fruitless search for justice. If Rosenbaum is serious about reforming the hearts of all people, his best hope is to continue to use his gifts as a novelist to do it. As he surely knows, the world does not need more lawyers. But it can always use a good storyteller. *