14 November 2003

I've spent most of the day wrestling with theoretical issues, including some pleasure reading. On theoretical issues, naturally. I think I came across yet more proof that lawyers and the law need to pay more attention to the arts, and more specifically to novelists.

The legal process will never fully heal us. The failure of the law to deliver all that we ask from it is probably the essential theme of all of my novels…. I revere the enterprise of the law, but it does not function flawlessly. It neither finds the truth nor dispenses justice with the reliability it is obliged to claim. The law's sharp-edged rules never cut through the murk of moral ambiguity, nor do they fully comprehend or address the complexities of human motivation and intention. And just punishment alone does not render the world one we want to live in.

Murder takes us to the Land's End of the law. Our horror and revulsion undermine our capacity to reason—and prove that justice alone will not make us whole. Only the attachments we have to each other, the antipodal experience of what goes on in the moment a murderer kills, can accomplish that. In the face of the cruelties we visit upon one another, murder being the gravest wrong among them, a sense of meaning and connection must come from outside the law.

Scott Turow, Ultimate Punishment: A Lawyer's Reflections on Dealing With the Death Penalty (2003) at 108–09 (emphasis added).

Without a single citation to authority, Turow makes a case against the death penalty on the ground not that nobody deserves it—his running example is John Wayne Gacy; I might choose others, for different reasons—but that in reality no legal system can adequately ensure that all those who deserve the final sanction receive it while ensuring that all those who do not are never faced with it. The unspoken statement here is that purposefully causing the death of another is an aberration that must inform not just murder and the sanction for it, but the process of determining in the cold, hard light of reason that there remains not just no reasonable, but no tenable, doubt as to the fitness of death as a sanction for societal misconduct.

Turow's reasoning also applies to civil litigation in this country, which has largely turned into a system of weregeld—payment of money to a victim in compensation. But this could lead into unresolvable questions of levels of proof and the propriety of punitive damages, particularly when they seem to have no deterrent effect upon corporate behavior whatsoever. If they did, there would have been no Enron or WorldCom or mutual-fund-illusory-market-timing scandals—and those are just the ones that we know about.

Rather than joining Professor Bainbridge for postprandial port, I'll stick to my own version of passing the bar; no doubt some readers will think I began imbibing before writing this post, or indeed much else that appears here. Back to the Isle of Jura, then. (Which is both a fine single-malt scotch and the residence of George Orwell during his last months.)