The Myth of Moral Justice: Why Our Legal System Fails to Do What's Right , by Thane Rosenbaum. HarperCollins, 368 pages, $24.95.
Every nonfiction writer of any resourcefulness knows that the best place to find great stories-after the stacks in the New York Public Library, that is-is in the courthouse. I'm always amazed that judges and lawyers aren't all writing novels on the side.
In The Myth of Moral Justice, his engaging critique of the legal system, novelist and law professor Thane Rosenbaum acknowledges the narrative function of the courtroom and goes a step further: He says lawyers and judges should realize that storytelling itself is a valid remedy for wrongs, as real as a cash settlement or maybe even time served in jail.
Making broad cultural and political references-to Kafka, Camus, Dickens, Shakespeare, Seinfeld, The Sopranos, the O.J. trial, Bush v. Gore and the 9/11 victims-compensation fund-Mr. Rosenbaum argues for a legal system that embodies a kind of humanist morality, a system in which the participants' emotional need to be heard is given as much credence as grievances, crimes and bank accounts.
"Most of what lawyers do is silence and squelch, spin and fudge, eviscerate or explain away the very stories that must be told and preserved," he writes.
Mr. Rosenbaum says rules of practice mitigate against the storytelling function at every level. For example, strict rules of evidence prevent witnesses on the stand from explaining nuance. As an example, he quotes from court transcripts of Woody Allen's lawsuit against his former business partners. The judge repeatedly told Mr. Allen to "stop talking" as he tried to qualify a "yes" and explain just how close a friend one of the defendants had been.
Lawyers and judges, Mr. Rosenbaum argues, are trained to deny the storytelling function. "The problem is that lawyers who encourage settlements mistakenly presume that the telling of a story is of no consequence to providing relief." He cites by way of example the creation of the compensation fund for the victims of 9/11 and their families. Congress created the fund to allow victims a chance to put a dollar figure on their loss, and get paid. What it denied them, of course, was the chance to tell the world about their loss. Mr. Rosenbaum believes that "the creation of the fund itself-ultimately and predictably-was morally unjust. Depriving surviving families of their individual stories of loss and reducing their suffering to lifeless numbers … provided insufficient relief."
Mr. Rosenbaum also takes a whack at another pillar of the legal system, the so-called "reasonable man standard." Every lawyer learns it in law school: The reasonable-man standard asks, "What would most people do in a given situation?" Mr. Rosenbaum plausibly points to the reasonable man's "sheer moral blindness and undaunted commonness." He notes that courage is not a part of the reasonable man's constitution. Consider, for example, a reasonable citizen in Nazi Germany: "[G]iven the inflamed passions and politics of the Third Reich, [he] would have reasonably remained silent and done nothing to save Jews," Mr. Rosenbaum writes. "To stand apart from the crowd, and stand up for friends and neighbors … to oppose governmental authority"-that kind of courage is not reasonable.
The worst result of the reasonable-man standard, Mr. Rosenbaum writes, is the law's non-duty to rescue. If you see a woman being beaten on the street, you have no more duty to help her than you do to give a dollar to a hungry homeless man. The same goes for driving past the scene of a murder in progress. "Perhaps nothing in the law reveals such a gross violation of moral failure as the absence of a duty to rescue."
Most of what Mr. Rosenbaum points out is hard to disagree with. You wouldn't want to argue with a claim like this: "There is simply not enough caring or connection in the law to match the abundance of self-importance and elitism." The emotional needs of litigants are clearly not addressed in the courtroom. (One chapter of Mr. Rosenbaum's book is titled, "The Law's Preference for the Body over the Soul.")
It's always easier to identify the problem than to stitch together a solution. In his search for a remedy, Mr. Rosenbaum veers into New Age territory. One can admire his bravery in the face of prevailing cynicism, and still regret the pungent whiff of patchouli.
Mr. Rosenbaum laments the lost art of the apology. Sometimes, he tells us, an apology can stand in for hours of litigation; if not, at least it can serve as emotional balm-which, as noted, he believes should be part of the law's work. "The legal system treats an apology as a self incriminating act, an admission of guilt, rather than what it might be-a spontaneous moral expression of sympathy."
He commends the work of an organization called the International Alliance of Holistic Lawyers (who knew?). This group, he says, has raised awareness of the "spiritual consequences of the conventional legal paradigm."
In conclusion, he calls for "moral reform" of the system-"not mechanical changes from within, but human values that can be implanted in the law …. What's necessary is not an overhaul but an appeasement, a joining of the legal and the moral."
Thane Rosenbaum comes close to suggesting a kind of moral absolutism that sits uncomfortably with secular American law. Whose version of morality should we adopt? He doesn't say. But maybe he'd find some common ground with Alabama's ex–chief justice, Roy Moore, who last year was thrown off the bench for hauling a rock the size of a Volkswagen, inscribed with the Ten Commandments, into his courtroom-and then refusing to remove it. Now there was a heroic experiment in "joining … the legal and moral"; it would have been interesting had Mr. Rosenbaum devoted a few pages of his book to that small battle in the culture wars.
Nina Burleigh's The Stranger and the Statesman: James Smithson, John Quincy Adams, and the Making of America's Greatest Museum-The Smithsonian (Morrow) was published in September.