Playing By The Rules
Recently I’ve found myself engaging in an endeavor that might strike a casual reader of this blog as hypocritical. Essentially, I’ve been urging a recently charged criminal defendant (who is not a client and who is currently unrepresented by counsel) to follow the rules of the court in which he’s been charged, to increase his chances of beating those charges. The defendant, however, believes the courts and the judges that rule them are lawless, and so his stated strategy is not to play by their rules but to try to force them to play by his.
I’ve been forced to ask myself: how does my advocacy of what might sound to him and others like meek submission to authority cohere with the radical philosophical anarchism I espouse on virtually every post of this blog? After all, haven’t I said, and meant, that the State is of No Authority? Why submit to its arbitrary rules, when we have better rules of our own?
Upon reflection, I think my position is coherent and that the key to its coherence is my realistic cognizance of (as opposed to respect for) power.
Readers may wonder how a professed anarchist who is also a lawyer handles himself in court. The answer in my case is, not much differently than other lawyers. I’d be very surprised if any of the judges I appear before had any inkling of my philosophical and political convictions. I do on principle refrain from addressing judges as “Your Honor” (although I still occasionally and inadvertently do so out of old lingering habit, and it’s not something I obsess about), but I doubt my abstention is noticed, since judges are also accustomed to being addressed simply as “Judge.”
I sincerely and genuinely believe that working as a fry cook in the employ of McDonald’s is inherently more “honorable” than working as a judge in the employ of the State. (An honest judge who is offended by this might turn the question around to examine it from the other side, and observe that it is judges as a class and not fry cooks as a class who have arrogated to themselves the title of “Honorable,” and ask himself why he thinks working as a fry cook is not honorable relative to his own work.) I have two basic reasons for this estimation: first, the salaries of judges, like that of all State employees, are paid from the proceeds of theft; and second and more importantly, even the most honorable of judges act dishonorably and criminally as often as they unjustly harm others by enforcing the State’s many unjust laws. Nevertheless, when I think after a hearing and/or a ruling that a judge has done right by the parties and my client, I don’t hesitate to say and mean “Thank you, Judge.” (I still generally don’t substitute the words “Your Honor,” for the same reason I wouldn’t say “Thank you, Your Honor” to an auto mechanic I’ve paid to fix my car who fixed it particularly well.) On the other hand, I’ve sat in a judge’s chambers with opposing counsel a week after the judge issued an order in a case and told the judge point-blank that I was well-aware of the very high burden my client would need to meet to overturn his order on appeal but that since his “findings of fact and conclusions of law” made “no sense” whatsoever I thought we could meet that high burden on appeal. There are a few judges I actually like. Most judges I like most of the time, and dislike some of the time.
I’ve heard of or encountered a few judges in my career for whom I have the utmost inward contempt. I predict that their deaths will be followed by as many years in Purgatory (and I’m not even Catholic), separated from God and their loved ones, as the years of undeserved separation and suffering they’ve inflicted on those unfortunate enough to be judged by them in this life. I’m comforted by my faith that God alone is Just and knows men’s hearts, and that Justice will be measured to them with the measure they’ve used.
Even so, I’m not openly contemptuous of even these judges when I have to deal with them on behalf of a client. The reason is simple: these assholes, at least in court, have far more power than me. So I’ll play their silly games and stand with everyone else when they enter the courtroom, but if they have even half a brain they know this compulsory outward show doesn’t signify that anyone standing thinks they’re “honorable.” I don’t bow and scrape before them, but neither do I outwardly exude the contempt I inwardly feel.
I have a similarly nuanced attitude towards the established laws and rules enforced in court. Some of these laws and rules are Lawful and some (such as those forbidding making an explicit nullification argument to the jury) are un-Lawful, but generally all of them will be enforced by power far greater than mine. While in court I comply with those laws and rules which are un-Lawful for the same reason I’d comply with the order of a robber holding a gun to my head to hand over my wallet. Bitching and moaning to a robber about the injustice of the robber’s order is likely to accomplish nothing good and to increase my chances of getting shot. And the interests of the client, not mine, are paramount.
These pragmatic considerations of course don’t prevent me (until such time as the First Amendment is repealed) from bitching and moaning about the injustice of it all on this blog and elsewhere, and from the time of Thomas Paine’s Common Sense it’s been an article of public faith that such bitching and moaning serves a purpose.
Every man is confronted on a regular basis (e.g., at least every April 15th) with the decision whether to comply with un-Lawful orders issued by men more powerful than he. It behooves each of us to be clear with ourselves in making such decisions what we hope to accomplish and what principle we’re serving if we decide to disobey. If it’s a question of “your money or your life,” most reasonable men will choose their lives over their money. If it’s a question of “your liberty or the lives of others your money will be used to take,” an honorable man might choose differently.
Follow
