So what is it that people mean when they expect justice to be done? Often both winners and losers will complain that justice was not served. There is no justice. Having to go through the process alone is interpreted as a painful or losing experience. I believe the answer goes beyond mere winning or losing.
I submit the reason, which underlies not only the publics dissatisfaction of the profession, but our own, is that the current practice of law is in pursuit of a justice which is itself dissatisfying. And, our ideal of justice, which embodies quite another perspective entirely, is one that we, as a society, are unfortunately afraid to pursue. If we would but take the risk of pursuing the ideal, both the publics experience and the practitioners journey might well be joyful.
Perhaps it is time to re-examine and re-cast our definitions and re-focus our pursuit.
Websters defines a goal as [t]he end to which effort is directed.1 We think of goals as something to aim for, an ambition, our aspiration, things we seem to only dream about. In fact the importance of goals cannot be underestimated. They direct our every action. The benefits of using ideals as goals is that they will expand and evolve our current methods toward that which we see as ideal. As each new goal draws near, our goals are defined further from our grasp in order to keep our path ever expanding and evolving.
When a goal does not envision our ideals, its pursuit does not stretch us to improve or exceed our current limits, but only reinforces the walls and boundaries that we have constructed. Blacks Law Dictionary defines justice as the Proper administration of laws...[T]he constant and perpetual disposition of legal matters or disputes to render every man his due.2
The International Alliance of Holistic Lawyers
Leading the Way to Justice Through Fairness and Personal Responsibility
As members of the Alliance we commit ourselves, our clients and the global community to:
Acknowledge the need for a humane legal process with the highest level of satisfaction for all participants
Honor and respect the dignity and integrity of each individual
Promote peaceful advocacy and holistic legal principles
Value responsibility, connection and inclusion
Encourage compassion, reconciliation, forgiveness and healing
Practice Deep Listening, understand and recognize the importance of voice
Contribute to peace building at all levels of society
Recognize the opportunity in conflict
Draw upon ancient intuitive wisdom of diverse cultures and traditions
Enjoy the practice of law
The satisfaction or dissatisfaction of the practice of law lives in this definition. The key word is disposition. Generically it is the act of getting rid of something or passing something into the control of someone else. When used in its current legal capacity, it is the term used for the Courts exercise of the power of control over a controversy, its determination of suits.3
This definition actually supports our traditional system and helps us to understand why it is so dissatisfying. The traditional process requires us to give up responsibility of our conflicts guided by lawyers who are trained to pass on control to the Court. Then, based only upon the limited information shared, the competitive arguments presented, and the power given up, the Court decides our fate.
To our credit most people do not wind up in Court. However, adversarial dis-empowerment is still the prevailing relationship and conflict resolution model of our time. We accuse, we argue, we present evidence, we seek judgment, and we exact punishment. The model is taught and supported from our earliest of recollections through school and into adulthood where we pass the process on to our children. Whether guilty or innocent, plaintiff or defendant, in Court or between friends, we dread the process of accusation and defense. In so doing we separate ourselves and fear relationships. We carry shields of ready defense against those we would otherwise share our innermost selves with. We live in fear of judgment, our own and that of others.
Accusation and defense or adversarial dis-empowerment is a process that we hate because it separates our ability to be completely open and honest or at-one with others and ourselves. At the same time, ironically, we cherish and place great value on it. We overwhelmingly chose it from available alternatives almost to the point of it being a non-choice. Even when we consider the possible consequences, the choice seems automatic. And yet we hate it. We continue because it is almost all we know. As long as our defenses are up, others can only attack our shields. Being open and vulnerable is practically unknown and far more scary. Besides, fighting is far more common. How could I possibly survive defenseless against the more powerful? We must fight fire with fire, right?
It is no wonder why the legal profession is imagined the way it is. How many times has a client said, Please dont take this the wrong way, but I hope I never have to see you again. We represent what seems to be necessary suffering. As long as we maintain the definition of justice as adversarial, competitive, and dis-empowering, we maintain our positions as pallbearers to a life of suffering for all.
Because this is the justice we seek in the practice of our profession, it has also become a most painful occupation. It has become a journey which we dread sharing with those we portend to serve. As long as this is our goal, our practice must be in pursuit of it.
So what are we to do? How do we turn this around?
Blacks definition provides a powerful clue. Justice, he advises, is concerned with rendering every man his due.4 Is there anything more frustrating than someone else telling you that they know what is best for you? We get used to it as children. Even as parents we cant seem to break the habit no matter how old our children are. Have you ever been in a conversation with someone who is having a problem and you find yourself prefacing your advice with, If I were you I would ... Ah, it is just so much easier to deal with the faults and problems of others rather than focus on our own. And how can we possibly give competent advice? We know nothing in comparison to the individual whose problem we are commenting on. And yet talking about other people, other peoples problems, and presenting advice is the most common conversation we engage in.5
This has become more than just casual conversation, we have institutionalized it. Someone else is to blame. Lawyers know best how to win for me. The judge will make the proper decision. The punishment will fit the crime. Justice will be done. Somewhere along the way we became more than just our brothers keeper, but our brothers judge and executioner.
Yet when we have erred, regardless of the outer consequences, we have become experts at self-imposed punishment. We are our own worst critics and often the creators of the most incredible internal dis-ease imaginable. But do we dispose of our internal conflicts? How can we? It is not taught in school and it is the all too rare household that models this healthy exercise. We never reveal our dirty laundry in public. Family secrets stay family secrets. Skeletons remain in the closet. The result is the acting out of inner turmoil and violence upon a well-meaning, but constrictive society.
One might imagine that early societies were communities. People knew each other. Those they did not know personally, they knew empirically. Sharing inner anxiety was the path toward wellness. Reconciling recurring struggles with the wisdom of the elders was the communitys ever expanding road to the future. Communities agreed upon guidelines of common sense for their common protection and welfare. Each member was not only presumed innocent but had no reason to be otherwise. Honesty was the way of life. The consequences of a disregarded guideline were experienced by the entire community. The impact of the consequence on the entire community was the only punishment on the individual. Self-imposed. Such transgressions brought communities together in grief and forgiveness of the individual. Group introspection revealed the conditions and circumstances that led up to the infraction and how this event served in the individuals and the communitys evolution. As societies grew larger they lost their sense of community. We can only speculate as to when and why this occurred, but the effects of this initial separation from each other and continued divergence are taking us further and further from our ideals.
We have unfortunately decided, even if only by our individual refusal to question, resist, or live our lives differently, that real community either does not or cannot exist. Our simple, common sense, community guidelines became rules with unnatural consequences; judgment followed by punishment imposed by one another. We have created a far more complex society. We dont take the opportunity to open ourselves up to allow others to know us personally. Nor are we willing to see each other as equals. We dont trust one another.
There is no fault or blame here. We fear one another. We made rules in order to preserve our concept of safety. These man-made laws reflected the minds and the fears of the men that made them. The action of the fear-based creation of these laws has had the effect of a fear-based society. In the tradition of our current notion of justice, the word law has come to mean the rules of conduct enforced by a controlling authority.6 We have created an almost inhuman authority to inflict punishment on other human beings that we would not bring ourselves to do. For many of us, it is even difficult to imagine what amount of pain and suffering we do to each other in the name of justice.
So how do we turn this around? We must move justice from the mundane event of impersonal, adversarial dis-empowerment to the yet untried and certainly unaccomplished goal of personal, cooperative empowerment. We must personally get involved with the disposing of our own personal conflicts and the conflicts of our collective society. We must help one another release the past and proceed to expand our limitations.
We see glimpses of this community during catastrophes. People help one another without regard for remuneration. They help for the good of all: true service with no strings attached. All because helping each other feels good. The disregard of the welfare of fellow human beings in a time of need is forever haunting.
Blacks definition of law is very enlightening here: A rule or method according to which phenomena or actions co-exist or follow each other.7 Like pebbles that are dropped in to a pond, events happen and every drop of water shifts to accommodate. For each action there is an equal and opposite reaction. As you sow, so shall you reap. These are the laws we must come back to understanding when evaluating our actions. What goes around comes around.
I am not suggesting that we drop our current system of laws and enforcement. This drop would have quite an impact upon our pond. What I am suggesting is to see beyond the walls of our system and begin to live our lives in accordance with the greater laws of life. The ideal. If we do so the current system will expand to accommodate our growth, our caring, and compassion.
Blacks definition of justice is fine and it is, indeed, possible to find satisfaction alive in it. Our concept of laws must return to their original meaning. We must take responsibility to dispose of our own inner conflicts ourselves and seek the communitys help and guidance. In turn the community must take responsibility for the health and welfare of its own. Perhaps justice is not something we do or have control over, but rather something that is. Justice is the denouement of our life. It is how our book turns out. Perhaps the rendering of mens due is not something that is decreed but something that happens naturally, lawfully. Kindness is its own reward. A spiteful act serves its own punishment.
In our hearts we have a picture of how things could be. Is there not a soul among us that is not seeking happiness? When we recast the definition of justice, our methods or practice to accomplish it will transform in its path.
1. Websters New Collegiate Dictionary; G. & C. Merriam Co.; Springfield, MA; 1977; p. 493 (Goal)
2. Blacks Law Dictionary; 5th Edition; West Publishing; St. Paul MN; 1979; p.776 (Justice).
3. Ibid. at p. 423 (Disposition).
4. Ibid. at p. 493 (Justice).
5. Talking about other people can be helpful when the participants understand that what one sees in others can usually be found within. This therapeutic inward look is rare to our culture.
6. Blacks at p. 795 (Law).
7. Ibid. at p. 795 (Law).
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