Words: Ross Brockway (November 2017)
Image Credits: Open Source
Reading Time: 7 minutes

I’LL SOON BE ORDAINED AS A HOLY MINISTER.  I’ll be a priest of the Religion of Law, of the Madisonian (U.S.) Order.  My job will be to justify the incarceration of over two million U.S. residents, most of them people of color, for crimes including mental illness, chemical dependency, and poverty.  I will also have to explain why white police officers are not imprisoned for killing unarmed black men, as exemplified by the recent acquittal of Jason Stockley, who shot Anthony Lamar Smith five times as Smith sat in his car.  I will defend the conception of corporations as people for the purposes of political speech and campaign spending, but as shareholder-owned entities with respect to their obligation to maximize profits while discounting collateral consequences and social concerns.  When the U.S. government decides to ban immigration from Muslim-majority countries, I’ll help ensure that the discrimination is carried out without (explicit) consideration of race or religion.

It goes without saying that I’ll play a role, directly or indirectly, in the time-honored rituals of adversarial theatre that enact and regularize these outcomes:  condemning some and absolving others; transforming bodies into factory bread and blood into harmless wine.  But mechanizing and normalizing that, making consistent the inconsistent treatment of human beings, is all rather simple.  (After all, I’ll have plenty of precedent to cite:  the poor and powerless have always been treated differently than the rich and powerful.)  The more indispensable part of my job—what can never replaced by AAMs (Automated Attorney Machines)—will be making the discriminatory brutality, inequity, and inhumanity of the legal system seem necessary and even right.

It is one thing to coerce compliance and normativity through force—jailing the disaffected, policing the dispossessed, etc.  It is more difficult (but also more consequential) to convert minds and souls, such that those living under the law truly believe in the system that governs them.  A victory for the Religion of Law is not mere tolerance but devotion—parishioners who will fight to preserve their church and religion, out of a faith in what they guarantee.  Just as medieval peasants were kept in their rigid socioeconomic roles by fear of hell and hope in heaven, our congregants should define their very identity in response to faith in “the Rule of Law” and fear of its disruption.

Here’s where my religious education will come vitally into play.  I have been trained to sanctify the normal and depersonalize the visceral.  In the United States, we anxiously capitalize “the Constitution” and “the Founders” because they are more than parchment and dead men:  they are our holy text and demi-gods, to be revered and obeyed above all paper and flesh.  I rise when His Honor enters the courtroom, robed in black, unstained and unfathomable, for his words are not human opinions but instantiations of “the Rule of Law.”  And when I make my arguments I always appeal to what came before, the rulings and reasoning of past Courts, so I ensure that my arguments and the judges’ conclusions are objective—based in rule and repetition, rather than some subjective whim like “common sense,” “logic,” or “basic morality and fairness.”  Insofar as facts enter our debates, I will translate them as much as possible into abstract doctrines, so that in the final analysis—at judgment, on appeal, or in its precedential force—the case does not depend so much on what happened as on what abstract rule prescribes.  Finally, if we have to write down anything, we will write so much that no one else wants to read it, and we will write with language—in statutes and judicial opinions—that only lawyers can begin to comprehend.

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These demonstrations of objectivity, authority, and incomprehensibility give laypeople faith in “the Rule of Law” as a system of principles and judgments higher and more reliable than the common reasoning of ordinary women and men.  They also give people faith in their priests, we who possess knowledge and insight to interpret these Holy texts and traditions.  Through appeal to faith in “the Rule of Law,” we impress upon observers the sense that we are above the fray, steeped in mystic wisdom more objective and rational than common discourse could explain.

Just as significantly as faith, however, we priests instill fear in people living under the law.  While that fear most often expresses itself as concern for lawlessness and disorder (our Donald Trump, like Nixon before him, was the “law and order” candidate), in fact it reaches much deeper than that.  Premised on Western notions of individual rights (stemming back most significantly to Hobbes), the Religion of Law teaches people that they are fundamentally isolated and under threat.  Rather than connected to nature and one another, the individual must struggle to survive.  Her security, but also here identity—her significance—, rests upon her ability to gain esteem, power, and distance from and above others.  The Law encourages her to fight, compete, win.  It foreclosures most politically-impactful opportunities for her to act collectively (outside of the anonymous and indirect electoral process).  And it assures her that only “the Rule of Law” can prevent the collapse of our systematic separation into unpredictable and identity-threatening vulnerability.  As a legal priest, I will facilitate my congregants’ connection to higher principles and other “parties,” while shielding them from too much connection.  Where they feel emptiness I will ascribe meaning.  When people feel fear (which we’ve provoked), the Religion of Law will provide security.

In these final paragraphs, let me step out of character.  In truth I’m very wary.  I am still in law school (my third year), and already I’ve seen so many of my classmates transformed:  people with big hearts and aspirations, resigning themselves to lives of personal profit and security; accomplished people with varied experiences of the world, reduced to loneliness, uncertainty, and anxiety; curious and wide-ranging thinkers, seeing the deep inconsistencies of law and then choosing to accept or even defend those disturbing characteristics.  I want to help shape a better world, but law school has often made me more worried about whether I get a job that friends and acquaintances will consider prestigious.  I am concerned that it won’t get better after law school, in the legal profession.  I am concerned that my classmates, instead of using their power and unique knowledge to benefit those hurt by the law, will instead reinforce the damage, extending law’s legitimation of inequality.

Ultimately, I don’t think the religious character of law is itself the problem.  Nor is the problem “the rule of law,” in its simplest form. Asserting higher principles that we commit to live by—whether written or spoken; grounded in natural law or simply our own aspirations—represents a profound way of establishing our collective identity and reaching toward better versions of ourselves. Training lawyers to guide others through principle-enacting processes serves a worthwhile purpose in the effort to improve society.  But the Religion of Law currently dominant in much of the world—with its conception of isolated and ignoble humans, its alienating doctrines, and its regularization and obfuscation of injustices—is the not a religion honest lawyers should uphold.

Law will likely always be religion-like, but its form is not fixed.  Spiritual lawyers, holistic lawyers, restorative justice lawyers, and all lawyers dedicated to transforming and healing the divisions that law has imposed on society: we must try to make law a better religion.  Instead of inspiring fear, law should encourage hope and connection.  Instead of demanding faith in the preservation of what is, law must encourage evolution toward more just and inclusive multi-racial democracy, what Martin Luther King called the “Beloved Community.”

As a lawyer, I inevitably will be a kind of minister.  Fortunately, I have the opportunity to decide what faith to preach.

ROSS BROCKWAY is a third year student at Harvard Law School.  A former public school teacher, he believes that education should instill empathy and inspire action.  To reorient legal education and create a profession more courageous, more ambitious, and more loving, Ross co-founded the Harvard Holistic Law Group, a chapter of the Project for Integrating Spirituality, Law, and Politics (PISLAP).

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