Saturday, 7 November 2015

Sacrifices for Freedom

     My sister just forwarded me this link alerting me that today is "Love Your Lawyer Day", probably because she found out I'm a lawyer. I'm gratified, I suppose, but reading through the article I'm also a little disappointed that the rationale for the day seems to be entirely a reaction to cruel lawyer jokes and an awareness that lawyers have feelings too. And, as it also happens to be early November and everyone is wearing red poppies and waxing poetic about how much we owe our veterans, the contrast is a bit troubling.
     I hasten to stress that I am grateful for the courage and sacrifice of our veterans, and very much aware of how vitally important it is that they are willing and able to fight in defense of our civilization. But I am troubled by the apparently unlimited scope of the platitudes of gratitude we express, especially around November 11, in which people seem quite unrestrained in thanking men with guns for everything we have. For example, there is the story about VFW's Teacher of the Year Martha Cothren and the poignant lesson she taught her students about what earned them the right to sit in their desks, by having a group of veterans troop into the classroom, each carrying a desk.
     And certainly there have been instances where the willingness of soldiers to put themselves in harm's way has played a direct and visible role in letting children attend school. Consider, for example, when President Eisenhower ordered the Arkansas National Guard to protect nine black students as they attended Little Rock Central High School, which had previously been reserved only for white children.
     But also consider that before Eisenhower federalized the Arkansas National Guard, that very same unit had been sent by Governor Orval Faubus to prevent those same students from entering the building. The point here is that men with guns can be an instrument of oppression as well as defense against it. Indeed, I shouldn't need to mention that the primary use of violence throughout history has been in service of one form of oppression or another; those who resolve their disputes by reasoned negotiation and moral persuasion generally have little need for weapons, and then only because there are other people out there who do favour violence as their strategy.

     So it is not simply the fact that someone wears a uniform, carries a gun and follows orders that makes him or her a champion of freedom. It's that the gun is carried in service of freedom, or more to the point, in service of the form of government and the rule of law and the principles that support that freedom. And while the contribution of armed forced to protecting that freedom is very important, it is not the only contribution There are others who serve to protect our freedom as well, albeit in less dramatic and less appreciated ways.
     Remember that Eisenhower did not simply decide to send in troops because he wanted to see Arkansas schools desegregated as a matter of might-makes-right. This was not just a clash between the policies of the President and the Governor. It was a matter of law: a Federal Court had ruled that racially segregated school systems violated the Constitution. And that court had not simply decided that they thought it would be nice if children of all colours could attend schools together; it had been persuaded by legal arguments raised by lawyers.
     Now, it's true, of course, that there were lawyers on the other side, arguing that separate-but-equal segregated schools were constitutionally sound and that it was entirely appropriate that black students should not be allowed to set foot in all-white schools. But that does not mean that those lawyers were enemies of freedom. On the contrary, they played a fundamentally important role in protecting it. Our legal system is adversarial: the court must hear the very best arguments available for both sides of a claim, so that we can have confidence that the decisions they make are as fair and just as humanly possible. And that means that we need lawyers to be the bad guys as well as the good guys, in particular because in most cases that actually make it all the way to trial, there's actually an open question as to which is which.
     This means that there will always be lawyers arguing the very opposite of what you want to hear them saying, assuming you ever take sides on any issue. And this makes it hard to avoid coming to the opinion that lawyers are slimy dishonest shysters who will argue anything for anyone, so long as they get paid.
     But consider for a moment what it is we want from a soldier: we want them to be well-trained and highly disciplined, and in particular we want them to be able to promptly follow lawful orders even when those lawful orders require them to do something they might personally find distasteful. Like, for instance, shooting someone dead, or  blowing up a bunker with people inside it. These things may be tactically necessary, and in the big picture they may well be the least of all evils, but in the immediate situation, there's no getting around the fact that killing people is ugly, and something all decent people have a natural resistance to.
     We consider soldiers heroes for their ability to bravely do what we would consider abhorrent, and rightly so on both counts: they are heroes, and it is still abhorrent. So why do we feel comfortable condemning the lawyer who defends a pedophile, or who argues that black kids shouldn't be allowed to go to white schools? Why do we vilify lawyers with lawyer jokes?

     Sure, it's not the same as getting shot at. But neither is it the same as shooting at people. And just as soldiers willingly bear the risk of being shot, so too do lawyers knowingly enter a career and make arguments they know will make them unpopular.
     So I'm not complaining. I see it as an inevitable part of the process, of what lawyers do, that they will be regarded with suspicion and even contempt. The fact that many earn respectable salaries (and much more than what members of the armed forces typically earn) is probably more than enough to make up for this. I don't think we need a Love Your Lawyer Day, nice as the intention behind it is.
     But I do think we need to balance the hyperbole of thanks for veterans with a recognition that it's not just their willingness to fight that keeps us free, because I think the militaristic rhetoric is ultimately dangerous. The most egregious example I can think of is how some American gun proponents talk about the 2nd Amendment as the one that makes all the others possible, which is of course absolutely backwards, as I've argued before. More concretely, there is a strain of law-and-order ideology in which the police are very quick to use force to silence any perceived challenge to their authority, whether it be slamming a high school student to the floor for refusing to obey a command or arresting a driver for declining to put out her cigarette in her own car, or any of countless other examples. But these acts are not law; they are force.

     It is not force, then, but the law that keeps us free. Those who take up arms to meet force with force in service of law deserve our thanks, but so do lawyers, who work to apply and improve the law. But neither can do it alone: without our collective commitment to resolve our disputes in accordance with principles of civility and respect, their sacrifices would be for nothing.

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