​CRITICISM OF CRITICISM OF CRITICISM OF LAWYERS

STEWARDS OF NONSENSE
THE SAD thing about lawyers is not that so many of them are stupid, but that so many of them are intelligent. The craft is a great devourer of good men; it sucks in and wastes almost as many as the monastic life consumed in the Middle Ages. There is something about it that is extraordinarily attractive to bright youngsters, at all events in the United States and all other civilized nations. It not only offers the chance of very substantial rewards in money; it also holds out the temptation of a sort of public dignity, with political preferment thrown in for good measure. Most of our politicians are lawyers, and hence most of our statesmen. They swarm in the Senate and have almost a monopoly of the White House. Nevertheless, it must be plain that the law, as the law, has few rewards for a man of genuine ambition, with a yearning to leave his mark upon his time. How many American lawyers are remembered, as lawyers? I can think of only a few.

If lawyers were generally dull men, like the overwhelming majority of the rev. clergy, or simply glorified bookkeepers and shopkeepers, like most bankers and business men, it would not be hard to understand their humble station in history, but I don’t think it would be fair to put them into any of those categories. On the contrary, it must be manifest that their daily work, however useless it may be, demands intelligence of a high order, and that a numskull seldom if ever achieves any success at the bar, even of a police court. 

I speak, of course, of trial lawyers— of what the English call barristers. It may take only the talents of a clerk in a lime and cement warehouse to draw up mortgages and insert jokers into leases, but once a cause in law or equity comes to bar it calls for every resource of the human cerebrum. The lawyer standing there is exposed to a singularly searching and bitter whirlwind. He must know his facts, and he must think quickly and accurately. Those facts, perhaps, are quite new to him; he has engulfed them so recently as last night. But he must have them in order and at his command; he must be able to detect and make use of all the complicated relations between them; he must employ them as fluently as if they were ancient friends. And he must fit them, furthermore, into the complex meshes of the law itself—an inordinately intricate fabric of false assumptions and irrational deductions, most of them having no sort of kinship with fact at all, and many of them deliberately designed to flout it and get rid of it. 

This double job of intellectual tight-rope walking the lawyer must undertake. More, he must do it in the presence of an opponent who jogs and wiggles the rope, and to the satisfaction of an audience that is bored, hostile, and, worse still, disunited. If, marshalling the facts adeptly, he attempts a logical conquest of the jury, and if, while he is attempting it, he manages to avoid offending the jurymen with a voice that grates upon them, or a bald head that excites their risibility, or a necktie that violates their pudeurs—if, by the lavish flogging of his cortex he accomplishes all this, then he is almost certain to grieve and antagonize the judge, to whom facts are loathsome and only the ultra-violet rays of the law are real. And if, wallowing in those rays, he arouses the professional interest and libido of the judge, then he is pretty sure to convince the jury that he is a sciolist and a scoundrel.

Why, then, are lawyers, in essence, such obscure men? Why do their undoubted talents yield so poor a harvest in immortality? The answer, it seems to me, is not occult. Their first difficulty lies in the fact that at least nine-tenths of their intellectual steam is wasted upon causes and enterprises that live and perish with a day—that have, indeed, no genuine existence at all. And the second lies in the fact that when they engage in matters of more and permanent importance they almost invariably find themselves doomed to bring to them, not any actual illumination, but only the pale glow of a feeble and preposterous casuistry. 

Here they are on all fours with the theologians, and stand in the same shadows. It is their professional aim and function, not to get at the truth but simply to carry on combats under ancient and archaic rules. The best courtroom arguments that I have ever heard here in the Kenya’s Supreme Courts were not designed to unearth the truth; they were designed to conceal, maul and destroy the truth. More than once I have heard two such arguments opposed to each other, and both driving to the same depressing end. And at their conclusion I have heard the learned judge round up and heave out what remained of the truth in an exposition that surpassed both.

One reads many of the decisions of our higher courts, indeed, with a sort of wonder. It is truly astonishing that so much skill and cunning should be wasted upon such transparent folly. The thing becomes a mere crazy-quilt of platitude and balderdash—much of it, to be sure, immensely ingenious, but the whole of it of no more dignity, at bottom, than a speech by radio. It is as if eminent  mathematicians should devote themselves for weeks running to determining the proper odds upon a dark horse at Tia Juana. It is as if a whole herd of gifted surgeons, summoned to cure a corn, should proceed solemnly to cut off the patient’s leg at the hip. It is as if Aristotle, come back to earth, should get up at 5 A.M. to see a parade of the Mystic Shrine.

One admires the logician, but feels an inescapable repugnance to the man. And that feeling, I believe, is general in the world—nay, it increases steadily. In the formative days of the law the human race admired lawyers and judges, and even made heroes of them: the cases of Solon, C.J., Hammurabi, C.J., and John Marshall, C.J., will be recalled. But today the law has lost the blood of life and become a fossil, and its practitioners have petrified with it. Reduced to plain terms, what they engage in for a living is simply nonsense. It is their job, not to dispose of that nonsense, but to preserve it, pump it up, protect it against assault. So consecrated, they spend their lives in futility, and pass into oblivion unregretted and unsung.

         — Adapted from The American Mercury, Henry Louis Mencken, Jan., 1928, pp. 35–37

6 thoughts on “​CRITICISM OF CRITICISM OF CRITICISM OF LAWYERS

  1. Excellent essay.
    Making a career of disputing civil codes can not produce a thing of lasting value. Without it, of course, Babylon can not function. Civilized was the key word in at piece to my mind; there is law that is not civil but rather common to all humans, such law requires no specialists to dispute because it is commonsense and plain to understand.

    Liked by 2 people

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