The Last, the Littlest, the Least

One of my favorite parts about law school is the quality of speakers that come here every day.  Mere intelligence or understanding of the law is not sufficient to be an effective lawyer; you have to be able to communicate that understanding to others in a convincing manner.  Most of the lawyers who get invited to speak at Harvard Law School are rather good at that.  A few weeks ago, I heard one of the most inspiring talks I’ve ever heard by Bryan Stevenson (To give you an idea, it’s the only time I’ve seen Harvard Law School students give a standing ovation.  For a similar talk, go here). One of the points he mentioned was that as a society, we have to not only focus on the “bright and dazzly things” but also the dark and difficult things it’s just easier not to worry about.

This brings me it to the second principle I identified in my post two weeks ago: fighting injustice.  Central to the Catholic understanding of justice is the relation of privilege and powerlessness.  Cardinal Mahoney of Los Angeles once quoted a common saying attributed most often to Ghandi: "Any society, any nation, is judged on the basis of how it treats its weakest members; the last, the least, the littlest.” The social justice tradition of the Catholic Church has long admitted the necessity of a “preferential option for the poor” (as many of the Catholic and Jesuit scholars at Georgetown Law reminded Paul Ryan in a letter that can only be described as snarky on occasion of his visit to their campus). 

The nature of our Common Law system encourages social realities to become legal ones.  For instance, it’s normally very hard to get an injunction—a Court order to prohibit or force someone to do something under pain of fine or imprisonment.  Courts much prefer to award money damages.  However, there is an exception to this when the Courts look at anything to do with land. Land (technically any real property) has held a special place in jurisprudence.  Whether you want to attribute it to some subjective factor that makes land irreplaceable, the historic tie-up of wealth in land, or the first lawyers in England being landowners, the law has disregarded economists’ insistence that land is able to be objectively valued, and will generally not award money damages in land related cases, but rather make people move on and off or even demolish their homes before considering any other remedy to disagreements. 

It’s factors like this that make what lawyers do in courtrooms and in legislative chambers so important.  Our legal system, without people like Bryan Stephenson who fight for the littlest among us, create institutions that favor people already privileged by the societies we live in.  We live in a world in which 50-60% of persons of color in urban communities are in jail, in prison, on probation, or parole.  In the states of the old South, a defendant is 22 times more likely to receive a guilty verdict if the defendant is black as opposed to white.  And habits such as these find their way into law.  Alabama’s Constitution still technically mandates segregated schools, and prohibits “idiots” and LGBT persons from voting.

As Catholics, we cannot close our eyes to the injustice that surrounds us daily.  Certainly, as a lawyer I hope to fight injustice is another that we can be a society of laws, but the relation between law and society is not one way.  Every Catholic has a duty to open his or her eyes to make sure every act keeps at its center what was the central part of Jesus’ ministry—the last, the littlest, and the least.

Veto by Annoyance

Last week, I mentioned two different Catholic legal obligations: follow the law, and fight unjust laws.  There’s a reason I mentioned following the law before righting injustice—we don’t like to think about it as much.   While there might not be so many complaints over laws telling us to not kill others, when it comes down to it, paying our taxes, walking at a crosswalk and following the speed limit seem to have almost no moral value as compared to signing the most recent petition to stop impressing children into armies in Africa.

But more than that, laws can just be annoying!  When I’m in a hurry to get home, or running late to class, the last thing I want to think about is that when I break the speed limit, I breaking the law as surely as if I snuck a Snickers bar out of a 7-Eleven.  However, as I alluded to last week, the Council Fathers of Vatican II have strong words about that exact activity:

“Others think little of certain norms of social life, for example those designed for the protection of health, or laws establishing speed limits; they do not even avert to the fact that by such indifference they imperil their own life and that of others” (Gaudium et Spes 30).

After all, remember last week when I said Romans tells us we should follow the law not just because we’re afraid of fines, but because we are bound by our very conscience (Romans 2:5).  And the moment conscience is brought into, we should recall Fourth Lateran’s comment, “He who acts against his conscience loses his soul.” 

I find a lot of irony when I hear someone say we should value democratic ideals so much that we send our military overseas to kill those who lack a legislature, but then drives home at 95 mph. I guess on the highway, the vaunted democratic process gets thrown out the car's open window.

Of course, this veto by annoyance becomes even more obvious when you think of alcohol.  When I was in college, the legal drinking age of 21 was simply annoying.  Perhaps it’s even bad public policy. Unfortunately, St. Augustine said “an unjust law is no law at all,” not “an annoying law is no law at all” or “bad public policy is no law at all.”  If every time we found a law annoying or bad public policy, most every business would suddenly find themselves tax-exempt entities. 

Now, certainly, we might claim that the drinking age of 21 is unjust—that our fundamental human rights as persons are being violated by not being able to have a beer on a Saturday night before the Earth gets around sun 21 times from the time we were born.  I’m sure the 12-year-old children who have been forced to fight in the Lord’s Resistance Army in the DRC feel the pain of our violated liberty. Sadly, when I was in college, I must have missed the liquor store sit-ins to resist the tyranny imposed by the oppressive Alcohol Law Enforcement.  In another striking moment of solidarity-by-Fried-Chicken, people might have been willing to drink a fraternity’s free beer to protest injustice, but no one was willing to go to jail.

So certainly, in a Democracy, every citizen should actively, And indeed, an unjust law is no law at all.  But remember, it takes a law being unjust before we can simply repudiate it and feel ourselves from the duty they impose.  As a Catholic, we generally find a good way to uphold the rule of law by following it.

And when law and justice are at odds, I hope we find a better way to fight injustice than at a frat party, hiding from ALE, holding on desperately to our right to Veto by Annoyance.

A Catholic Lawyer

Prescript: I apologize for my absence and tardiness today.  As you may know, I started law school, and have taken a bit of time to adjust to a new course load, et al.  I plan on returning to my previous weekly 8 am Sunday posts.  Thank you for your patience

This past Tuesday, our professor surprised my law school section by walking into our first class, and asking us to take a moment of silence to reflect on 9/11.  This wasn’t a class on criminal law, or international security.  This was Civil Procedure. For those of you who intelligent enough to avoid law school, civil procedure is the dreaded class that indoctrinates impressionable first year law school students in all the procedures you need to know to sue someone, in gruesome detail.   At our first class, our professor promised us that by the end of the term, we will know the Federal Rules of Civil Procedure like the back of our hands.  He quickly followed up with the warning:  “But don’t just read them; you might get to Rule 17, and then you will die.”

So why, in a class that trains a new army of lawyers to aid and abet a society often called overly litigious, about procedure so dry that we would die upon reading it, would my professor bother to mention 9/11?

My Professor had been teaching in California in 2001, so by the time his 8:30 Civil Procedure rolled around, the events in New York were long past.  He and his students arrived punctually, as one would expect in a class on procedure, but after playing the video footage of the attacks, he paused, and then asked them, “So what do you want to do?  Should we even have class?”

After a moment, a student with a military background stood up and said, “If we don’t have civil procedure class, the terrorists win.”  My professor says he didn’t know quite what to do with that, but hearing no one offering any objections, he acquiesced, and class began with cases talking about the evidentiary support required to bring suit in federal court.

So why did the student say the terrorists win if his classmates don’t learn how to sue people?  Well, there’s perhaps no other class in law school that allows one to take a stand against terrorism than one on civil procedure.  The whole point of civil procedure—of law—is to offer an alternative method for us to resolve our differences.  If I feel wronged by you, I submit to (hopefully) fair adjudication with the goal of just recompense.  I don’t ram my car into yours.  The rule of law is the repudiation of the mindless violence the acts that day.  The rejection of the belief that might makes right and that because we can we should.

The respect that Catholicism, and Christianity, has for the rule of law—even the littlest law—is remarkable.  If a law is not specifically unjust, we are under a strong obligation to follow it, down to the venerable Vatican II Council specifically calling out speed limits as something we are called to follow (Gaudium et Spes 30).  For, “whoever resists authority opposes what God has appointed, and those who oppose it will bring judgment upon themselves” (Romans 13:2).

But the obligation to follow the law has a strong and equally powerful opposite—action against a law when it truly is unjust.  St. Augustine wrote, “an unjust law is no law at all,” and as the Fourth Lateran Council says, “He who acts against his conscience loses his soul.”  Yet as Catholics, if we don’t like a law, we can’t just shrug our shoulders, pretend it doesn’t exist, and ignore it.  Instead, if our conscience points out an injustice in our society—especially one that the authority that Romans tells us has been appointed by God—we have a duty to fight it with all our hearts.

In her welcome address, our Dean told us that in teaching us law, my school is giving each of us a tool of great power.  How are we going to use it?  These twin principles—upholding just laws and fighting against injustice—this is why I am studying to be a lawyer.  I study to ensure that we are a society of order, and that the events of 9/11 are a catastrophe, not an everyday occurrence.  I learn law to ensure we are a society of justice—that the last, the littlest, and the least are protected no matter the circumstances. 

I am studying to be a lawyer so that I can live, more fully, a Catholic.