Posts Tagged ‘Vining’

I’ve been told, and I recognize, that Joseph Vining’s writing can be difficult to understand. But if there is one day in recent memory when his comparison of the practice of law to the practice of theology can be understood, it is today. Here are some of his thoughts:

The parallels between the practice of law and the practice of theology are too striking for the lawyer not to see. They are also comforting, which makes them easier to see. For lawyers are required by the customs of the profession in which they are imperceptibly trained from the first day of law school, as well as by its discipline, to behave in ways that any adult, self-respecting, and free man must think either offensive or mad. If the lay citizen faces a dilemma in obeying what he is told is the law, lawyers face it even more. They are taught that they must be more obedient than other citizens, and this is reinforced by etiquette. They stand when an individual in a special robe enters the room where they are to do law, and takes a seat on a raised dais. They stand when that individual leaves the room. The architecture of the room and of the building containing the room is designed to produce respect, even awe. They are punished for anything resembling contempt in their gesture and phrasing, and say, “Yes, your Honor,” when reprimanded. They accept reprimand and correction given in a tone that only children experience outside the courtroom. They address this person to whom they speak, who issues reprimands, corrections, and statements that must be obeyed, with an ancient title, a title of the kind otherwise eliminated from American mouths, beginning with the word “Your” and followed by a word which might be Excellency, Majesty, Reverence, or Grace. In the case at hand, it is Honor. Even the most prominent lawyers appearing before the Supreme Court speak in tones of deference and in elaborate circumlocutions which hide the fact that they are instructing, guiding, or disagreeing with the justices before them; the most careless, ill-informed, foolish, or malicious questions are treated with an elaborate show of seriousness. If lawyers lose the habit of self-effacement and self-abasement they lose credibility and the ear of the judge to whom they are speaking, who turns away if he is not treated with the respect he thinks his due. Lawyers engage in overt and elaborate supplication, as does almost no one else in modern society. They begin, “May it please the court,” and in the end they “pray” for relief. And everything they say must be backed by authority. Indeed, they do best if they say a thing not in their own words but in the form of a quotation from authority, as if the ultimate end of and best demonstration of obedience and self-abasement is to eliminate themselves from view. Despite the seriousness of it all, which bespeaks a conviction that what they decide to say matters, and despite the heat of the argument the words they speak are never claimed to be their own. (And when a man in robes speaks he will say “We” or much more often “The law” or “This Court,” referring not to himself or himself and his colleagues but to the Court speaking over time.) When they get down to business, after their forms of greeting and stationing themselves and in between their modes of address and before their prayers, what do lawyers do? They hurl quotations at each other.

* * *

Where else do free, grown, thinking, and sane men and women behave in this way and in such an atmosphere? Where else do individuals in robes sit on a raised dais in the center of a room designed to evoke awe and respect? Where else do men conceive of themselves as supplicating, and say explicitly that they are praying for relief? Where else can be found men and women dressed in their best and most sober clothes engaging in self-abasement, where respect enforced by custom and discipline, where absence of direct challenge, use of titles, faith demanded at the outset? Where else but the church?

Now of course there are many churches, and the behavior of men and women in them varies in the respects just enumerated and thus in the degree of their resemblance to the legal profession. But in one respect, I think, they do not vary. They all look to authoritative texts. This they do not do just for the regulation of their ritual behavior, for which the authority of the text is almost a matter of definition. At least in the Western world questions about what to do in the world and how to think are settled by appeals to authority. If the authoritative statement is uttered by an official, it is made after reference to an argument about written texts. The agreement of religions on this point, this point of method, and their identity in this regard with law, is remarkable. It matters not whether the religion be hierarchically or pyramidally organized, like the Roman Catholic or the Protestant Episcopal or the Mormon, organized in a more horizontal fashion with occasional convocations to settle issues of basic doctrine, like the Presbyterian or Calvinist  churches, or not formally organized at all except through educational and social institutions, like the Jewish, radical Protestant, and Muslim groups. All value learning in the ancient sense of the term, as lawyers do. They think naturally in terms of authority, as lawyers do. Indeed they have the same difficulty lawyers do in bringing other disciplines to bear in education–the same fear of teaching something other than “the law”–or, in argument, in making reference to psychology, sociology, or even ethics. And they have the same difficulty lawyers do in deciding what the materials of discourse appropriate for analysis should be. Is what a priest or minister says in preaching or counseling evidence from which understanding can be drawn? Is what is said in arguments before courts, in letters of opinion, in counseling or in negotiation, material for legal study? Or would the inclusion of some or all of these make the practice of legal method or theological method impossible and lead to the loss of the legal or the divine?

In fact, a traveler coming upon the United States would have to wonder at the frequency and vehemence of the assertion that ours is a secular state. He would look round at the temples in the centers of towns, containing men in long robes and disputants arguing about, commenting upon, and organizing a canon of received texts, and then observe that there is no tolerance whatever on the question whether individuals shall be subjected to this regime or required on occasion to attend its ceremonies in person. Of course, what he would find on close observation is not slavery but a high degree of belief and willing obedience and an insistence by many, not at all paradoxical, that their freedom depended upon their belief. He would conclude, I think, that the term “secular” was being used in an odd way, and that the Founding Fathers’ aversion to a certain kind of Christianity inconsistent with human dignity, to the silliness of the eighteenth-century English established church with its condescension, corruption, and entwinement with a hierarchical social order, to the Catholicism of the Medicis, Richelieu, Bloody Mary, and Philip, all of which may be thought to have produced the First Amendment, was not, for all that, a rejection of the theological heritage.

If the charge of foolishness stands, it stands against both lawyer and divine. How can they spend their time doing what they do, and respect themselves for it? The theologian has the claim, which the lawyer does not, that the statements to which he confines his attention or pays particularly close attention were made by men into whose ears God was whispering. But this does not in itself produce meaning or understanding. With the exception of sitting popes or convocations, the texts were written by men separated from the present listener and user of them by even more of a gulf, of time, culture, and language, than separates dead and aged judges from the lawyers who appeal to their statements. Why pay such attention to what a smelly, querulous old man, in goatskins, said three thousand years ago if what he says does not command attention by its intrinsic beauty and insight? Why pay attention to passages that are obscure and dull, in a constitution, a statute, an opinion of the justices, or a book of the Bible? Why write commentaries on them, and commentaries upon commentaries? The very selection of religious texts may be conventional, the result of human decisions, perhaps even bargains, threats and pressure in the legislative sessions of ancient convocations. Where is the profit in all this?

Might we not be generous and self-confident enough to say that what lawyers and divines seem to be doing is not what they are really doing? If theologians are asked why they do what they do, they respond that they are trying to save the world and redeem us. They are seeking knowledge of meaning, purpose, the hidden, the invisible. They do it in the only way they know. No one has ever supplied a better. Lawyers are too shy to give the same response, or too wedded to the bravado of tough-mindedness. But it sometimes seems that in a modern, secular American university the law school is the one place where meaning and purpose are discussed in a systematic way. Science cannot allow the presence of mind. But men, law, and theology, not to speak of literature and art, cannot do without it. And it seems to be true of our existence so far, that the presence of mind, the experience and acknowledgment of authority, and a special method of argument and analysis, are all bound together, with authoritarianism and its reflection in institutional and linguistic form tagging along, as imperfection is always known to dog man, perhaps indeed serving as something of a shield against the blinding demands of the fully authoritative. Both lawyer and theologian argue from texts because otherwise there is nothing particular to talk about. They cannot do without texts any more than the novelist can do without life. But there is always something behind the texts. There is no understanding of them without interpretation, and no interpretation without creation and imagination, reaching behind to what is there for us now.

Joseph Vining, The Authoritative and the Authoritarian 188-92 (1986).


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[W]hen one truly takes into account a consideration or an end or a consequence or the avoidance of a consequence, one does not weigh it so much as one seeks it. What is authoritative does not so much restrain one as it animates and feeds one’s thought. And it is this that the metaphor of mind as weighing and of analysis as supplying or discovering grounds for decision, with its various geographical and gravity-derived associations and images, fails to convey. The value, the end, the consideration, feeds into the imagination, the cunning, the resourcefulness of the decision maker. The value might as well be a dead thing from the description of it in the common metaphors of the process of decision making—one speaks of a “dead weight”—whereas it is a warm thing, living if you will, and the authoritative decision maker is warm toward it.

Joseph Vining, The Authoritative and the Authoritarian 177-78 (1986).

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“What is unconsciously motivated is not for that reason inaccessible, secret, arbitrary, with us being little balls tossed about by dark forces below that are not us and alien to us. Nor, in law, is the power of a judge, who is one of us and like us, therefore a blind impact from the unknown. We blend into the semiconscious, the subconscious, and the unconscious.

“The whole person acts and speaks. In talk and action and in writing one obtains evidence of what one thinks, oneself, as a whole, evidence that one then interprets, and not against some independently accessible conscious intent but as one would interpret any authentically meant writing. Words and means of expression come to mind. Then one sees them.

“So with the legal decision maker. She decides, or concludes she has decided. There is a motion of her mind. What does she decide? Happily she must justify her decision. She writes and looks, and the whole may surprise the part and summon her in a different direction. When she publishes, she reads what she writes in company. Where is her power, the power she has in and of herself as a judge? Her power beyond the case is in her text. And if there is an appeal in the case, to judge the judge’s text, her power even over the case itself is limited, to the degree she has genuinely sought what she truly thinks–which seeking is itself a limit on her power as she comes to the decision that is reviewed.”

Joseph Vining, From Newton’s Sleep IV.21, pp. 188-89.

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