Law as dance, theater, or music: legal procedure and ritual.
Jewish legend tells us that when God was creating the world, during the sixth day, not only did He create those things which are expressly mentioned in the opening chapters of Genesis--Man and Woman and all the other living creatures--but He also created other things which turned out to be necessary to the history of the world. Among these were the tablets of stone on which Moses wrote the Ten Commandments, as well as the Shamir--the magical worm that was able to bore through the hardest substance on the earth, which Moses needed in order to inscribe the letters on the tablets of stone. So powerful was the Shamir that when Moses held it in his hand he was able to bore all the way through the tablets and inscribe the letters just as if he were using a quill to write on papyrus; and so skillful was the Shamir that the letters which Moses engraved could be read equally easily, it is said, from either side of the tablets.
I always imagine that the Torah, too, through which the Law was presented in all its perfection, was created on the Sixth Day and that late in that day, as the sun was setting on the evening of the first Sabbath, the Torah ascended to the Throne of God and she threw herself at His feet, weeping uncontrollably in the presence of all the angels, and she said to Him, "Oh Lord, you have created me perfect, and until the Messiah comes at the end of time, mankind will not be perfect. How then shall I be received among men and how shall I be perceived in their midst?"
And God said to her, "I will create sages in every generation to interpret you and you will unfold through the ages as a flower unfolds, and you will be loved and admired more than any flower."
For the fact is that substantive Law requires application and has to unfold; and therefore we require procedural law that deals with the process of unfolding. Centuries of legal disputation have taught us that is not possible to understand law as a static construct. Ancient images of the law as a Temple which stands fixed and immutable throughout eternity, and into which we enter in awe as we seek to discern its architecture--those images must be relatively late, romantic conceits. They may perhaps be understood as fanciful elaborations of the familiar images of the columns and steles on which early codes were often inscribed: the notion of writing a set of laws on a stone surface may be very old but the conception of the law itself as a physical temple probably comes much later.
We may contrast the development of these static images of law as a Temple with what I believe are the truly archetypal images of law which date from much earlier times: images of a trial process in which a divine being sits in judgment over a soul. So we have the haunting image of the weighing of the soul in the Egyptian books of the dead. In the Papyrus of Ani, (1) for instance, which dates from about 1500 B.C. but which relies on a much older religious tradition, we see that there are rituals which the soul must perform as it leaves this world and goes towards the throne of Osiris where it will be judged to see if it is worthy of spending eternity in Lightland. Those rituals involve the recitation of various spells -- a funerary liturgy. The most familiar of these spells is the protracted Negative Confession, a long list of protestations uttered by the soul in which it assures various gods that during life the soul did not commit any of the many sins which might bar it from entering Lightland. "I have not committed robbery with violence.... I have not stolen....I have not slain men and women.... I have not stolen grain.... I have not purloined offerings.... I have not stolen the property of God.... I have not uttered lies...." and so on. In the Papyrus of Ani, there is a picture of the trial of the soul. It shows the human figure, tiny in the presence of the gods. Osiris is sitting on his throne, and Anubis, with the head of a dog, is presiding over the weighing of the soul of the deceased. This weighing process is terrifying because the soul is on one side of a balance scale, and on the other side is a feather, the feather of truth, Ma'at; and if the dust and other baggage which the soul accumulated in the earthly life weighs it down too heavily, if it weighs more than the delicate feather -- then the scale will tip against it. This is what the sharp eye of Anubis is checking for.
This archetypal conception of a trial in the Great Courtroom up in the Sky, a trial which takes place at the end of every life and which cannot be evaded -- this is a procedural conception, a notion of a process through which all of us must go. The essence of law was not, originally, the courtroom in which the trial took place (which was throughout most of our history, after all, the royal courtroom rather than a special legal court) but it was rather the trial procedure which unfolded in that courtroom.
The ancient Egyptian imagery retains its vitality even today, and even among Jewish families. My own father was a rabbi and I remember being taught as a child that God was watching me constantly, and that all my good deeds were being noted and counted, and all my bad deeds as well. And that at the end of my life the good deeds and the bad deeds would be weighed against each other, and if the good deeds preponderated why then, off I would go to Heaven. And otherwise -- it was off to the other place, for all eternity. But not to worry: this heavenly accounting would not start for many years, since I was just four years old at the time, and until I was bar mitzvah all my deeds were reckoned in my father's heavenly accounting and not in my own.
So for a while I lived my whole life as a secret litigant, with one eye on the heavenly courtroom, living--not in the moment, but rather for that moment at the end of days when I would deliver my own Apologia to the divine Judge. Like the driver whose car has been rear-ended at very low speeds--he thinks immediately of the personal injury suit he plans to bring and he feigns an inability to move his neck, and does not turn his head to speak to the apologetic driver from the car behind him who now knocks on his window inquiring after his well-being--so I affected a standard of moral conduct which I did not really understand or endorse, but which I thought would improve my chances in the litigation to come. But my father reminded me that the trial before God would be different from earthly trials because God sees all and knows all, and there is no possibility of dissembling or deception. So it would be no use to pretend to do good deeds: the deeds would be measured according to their actual worth and merit and the trial would be perfectly fair.
I took this all very seriously between my ages of five and ten; but after awhile, and before I was bar mitzvah, I came to feel that the epistemology and mathematics underlying the whole proposition were fuzzy: how, after all, were one's deeds to be weighed? They came in all shapes and sizes: how then could they be compared one to another? What was the metric? Upon reflection I came to feel that this kind of life could not be lived honestly in any event: that whatever legal procedure awaited me at the end of my days, I would have to deal with it when it arose rather than trying to anticipate it and alter my behavior to improve my chances in it. I thought even then that constant angling for advantage--even for advantage in the afterlife--was dishonest and low-spirited, and that the nobler course was to live earnestly in this life and to trust God to be fair in the end.
This train of thought which I followed so earnestly in my early life brought me, as I shall explain, to the belief that legal procedure has many interesting and compelling similarities to ritual and liturgy, and to dance, theater, and music. But just as a "procession" is something more than a mere "parade"--something more dignified, and more substantial--legal procedure properly understood is something much more than mere ritual and liturgy. Just as one may be ennobled by participating seriously and with a proper intention in a solemn procession--something which could never happen if he participated in a mere parade--he may be ennobled further yet by participating seriously and with proper intention in a legal procedure. As the rabbis said in Talmud Shabbat 10a, "every judge who judges a case according to its truth for even a single moment brings upon himself what is written, that it is as if he were a partner with God in the work of creation."
Substance and Procedure
All modern law students are taught the distinction between substantive law and the law of procedure. Substantive law is divided into civil, criminal, and administrative law, and civil law is further subdivided into contract and tort. Procedural law is divided into the rules of trial procedure which include the rules of evidence, and Constitutional law--which concerns itself with issues of the division of power among governmental agencies and the limitations on that power, such as due process. These are the great dichotomies upon which all of us who study law are impaled early in the curriculum.
And in the latter half of the twentieth century a certain view of the relationship between substance and procedure has become commonplace: that procedure is all-important and that in the end, it "trumps" substantive law and renders it insignificant. Therefore, most people will tell you, law is fundamentally a political enterprise. It's all about who gets to do the interpreting and applying and the underlying principles are just rhetorical challenges: some lip service has to be paid to them, but no one really cares about them.
Dramatic evidence of the accuracy of this view of things was provided by the Bus/Gore election in the Fall of 2000. The substantive principle of law which we thought underlay the election was, "the majority rules." But in the end, the Supreme Court ruled and the quest to ascertain the true will of the majority was abandoned in the ebb and flow of current events. Procedure trumped substance: it was not important to do the actual counting, and perhaps it was not even possible to do it. What was important was that there was a dispute and there was a court of last resort, and the dispute was carried to that court and it made a ruling. This was what turned out to be "the rule of law" at the lime.
It was not a brand-new scenario by any means. It was Roscoe Pound, dean of the Harvard Law School in the early years of the twentieth century, who observed (2) that Anglo-American law has always fallen back on procedure to resolve murky substantive issues. In the Middle Ages, the outcome of a trial was determined by a joust, or by an ordeal. "He says he's innocent, and we can't tell. Let's dunk him in the cold water. If the water rejects him--why he's guilty; and if the water accepts him, and his belt gets wet, then he is innocent." Or later, "Let the knight of the accused do battle with the knight of his accuser and may the best man win!" In our contemporary courtrooms, the jury still retires to a private place to deliberate in complete secret. Even the court's bailiff must knock on their door before he opens it, and the only way we can ever find out what thought processes the jurors actually went through during their deliberations is to interview them after the fact. And they might lie. Perhaps they sat in the jury room drinking and playing cards and then just flipped a coin to develop their verdict. How would we know? Particularly if they all agreed on a story, and stuck to it, we would never be able to penetrate to the truth of it. Yet we say to each other, "He got a fair trial, and the jury decided the issue. Justice must have been done."
So the cynicism of the late twentieth century led many of us to conclude that procedure swallows up substance and that there are no two ways about it. For whatever the Torah might say, and however perfect the law may be, we are stuck with people interpreting it and applying it in actual cases and therefore there is no guarantee that the substantive law will be accurately applied. What is important is not the substantive law but rather the psychology, and the politics, of the decision-makers.
Law and Music; Practice and Performance
There is a different model for the relationship between substance and procedure which is more appealing and, I will argue, more accurate: music. Music, too, unfolds through time, like the petals of a flower. The static concept--the architecture of the composition--needs to unfold, needs performance. And therefore it needs a performer. But there is such a thing as a good performance and a bad performance: the fact that this performer happens to be on the stage now does not mean that his performance is good or that he has gotten the music right. The underlying structure, the beauty and truth of the music, may become apparent only through a long series of performances over time. Or it may become apparent in the course of one really good performance. But there is an underlying structure and the work does have a static and eternal aspect, similar to the static architecture of substantive law, which we appreciate by the time we have heard enough performances of the piece to understand it. We recognize the moment wh en a performance of the piece allows us to encounter its structure: the realization of it creeps up on us and it makes us gasp at the beauty of the work.
I am thinking here of a short piece like Mozart's setting of the Ave Verum Corpus, to give just one example. The slow opening phrases, with their apparently saccharin and complacently arpeggiated chords, seem at first to be going nowhere until we get to the first mention of the cross, and then we come to the second phrase where we hear about "undo fluxit et sanguine" with its mysterious sonority and we wonder what Mozart has in mind, and then we get to the part about "in mortis examine" and we realize what a dramatic, shocking progression Mozart has cooked up for us, in which the inevitability of death and the trial which awaits us there are evoked in harmonies more vibrant and exquisite than we ever expected, so that the world of death becomes more alive to us than this world from which we started. But then we experience the peripety and resolution Mozart has constructed, so that we are brought back to this world and we go over the opening phrases in our mind--which we heard just a few seconds earlier--and we realize all of a sudden where they fit in the structure and we gasp in admiration at the whole piece.
I think often of the performers privileged to participate in the performance of a piece like that. How often may they have practiced their scales, their arpeggios, their sustained bowing techniques, their artificial and pointless crescendos and diminuendos--practiced for endless hours by rote, with impatience, probably mindlessly, until the necessary skills were inculcated in their arms and fingers and voices; and then they finally have a chance to use those skills and actually make music with them.
Their practice has two phases: there is the general practice which is part of their life routine, which is aimed at developing their skills so they can apply them to the performance of any piece. That practice has no middle and no end: it is everlasting, and is a form of exercise. It is very different from the practice done in specific anticipation of the performance of the particular piece. That focused practice is a kind of partnership with the composer in the act of creation, and it culminates in the moment of the actual performance in which the listeners and the performers are all given an opportunity to realize the intention of the composer.
Many courtroom trials--even trivial ones--proceed in the same way, with a similar experience of discovery, peripety, and resolution, with similar application of rote skills which suddenly, in the context of the trial, take on meaning. When I was a young lawyer I volunteered to act as judge in a small claims court. I still remember one of the cases that came before me in the afternoon of my first day. The plaintiff was the owner of an automobile, and he was suing the owner of a neighborhood garage over an alleged failure to return a tire to him. According to the plaintiff, who spoke first, the tire went flat a few yards from this gas station; he drove into the service station and the defendant took off the flat tire, mounted the spare, and told him to come back the next day to pick up the repaired tire. He could not come back to the service station the next day but he did go back about four days later, and the defendant refused to return the tire to him, claiming falsely that he had returned it to him three da ys earlier. I asked the plaintiff, "Did you pay for the repair? And do you have any receipts from the station?"--I did pay, Your Honor, but we did not do any paperwork.
I asked the plaintiff if he had anything to add and when he said he did not, I turned to the defendant. "What is your side of the story?"--I returned it to him, Your Honor, of course I did. He paid me $10 for the repair and I gave him his tire back.--"Do you have any receipt for the tire?" I asked.--No, like he says, we didn't do any paperwork. But of course I gave him the tire: what use would I possibly have for a used tire on a car like that?--"What kind of car was it?"--A ten-year-old Plymouth.--"Is that true?" I asked the plaintiff.--"Yes, Your honor. It's an old car, but it's what I use to get to work."
And that was the sum total of the testimony and of the evidence, and now it was my responsibility to decide whether the garage owner should pay the plaintiff the value of a repaired tire, which was about $40 in those days, or whether I should leave the parties where I found them. And the whole issue turned, it seemed at first, on whether I should believe the plaintiff who was, frankly, a repulsive and disagreeable character, or the defendant, who was an attractive person and whose point about having no motive to appropriate for his own use a used tire for a ten-year-old car made a lot of sense. As the judge sitting without a jury, the so-called "trier of fact," I thought I had every right to believe whom I wished, and I was sorely tempted to tell the plaintiff to take a hike.
It did occur to me that perhaps the defendant ought to be faulted for not having prepared proper documentation of the transaction: what kind of business operates without any kind of receipts, after all? But I thought that perhaps he should be excused from any such failure in this case, since the plaintiff had told him he would return the very next day to collect the repaired tire but had then delayed a few days. Maybe the defendant had in fact returned the tire the next day but to the wrong person: would the plaintiff then have any claim?
But then these thoughts led me to remember the scales and arpeggios I had practiced in law school, and put me in mind of something called the burden of proof which figures prominently in legal procedure. I remembered that as a judge, it was my job to make sure that legal procedure was respected and followed.
The burden of proof is the responsibility of one party or the other to establish a given fact by a preponderance of the evidence. If one party has the burden on an issue, then if the evidence on that issue is in equipoise he loses the issue and it must be decided against him. That is what it means to have the burden. Well, in a claim for the return of physical property, the plaintiff has the burden to prove that he had the property and that he delivered it to the defendant. If he establishes those facts, the burden then shifts to the defendant to show that he returned the property to the plaintiff.
In the case before me there was no documentary evidence at all, but there was the testimony of the two parties. The plaintiff asserted that he had owned a tire and that he had delivered it to the defendant. If the defendant had come forward to deny that he had ever seen the plaintiff, I would have been required to rule for the defendant. since the evidence would have been in equipoise on the issue (A says X, B says not-X). But here, the defendant had admitted receipt of the tire from the plaintiff, since his whole defense was, "I returned the tire to him after I repaired it." So we were clearly in the phase of the case where the burden was now on the defendant to prove that he had returned the tire to the plaintiff, and as to this point the evidence had to be seen as being in equipoise. Therefore the defendant had not carried his burden, and the proper ruling had to be for the plaintiff.
This analysis did not require me to favor the defendant, whom I liked, over the plaintiff, whom I found repulsive: it gave equal weight to the testimony of each of them, and reached its result on purely legal principles. My inclination to like one litigant and dislike the other would not have been a reliable basis of decision: the burden of proof analysis was much better.
I remember shaking with excitement as I sat on the bench because for the first time in my life I had actually understood the significance of this central rule of legal procedure, the rule about burdens of proof. It was one thing to study it in law school--that was like practicing scales and doing Dohnanyi exercises. But here it was like performing the music.
And never mind law school: we Jewish children all learn that passage from the Talmud (Baba Metzia opening passage): Shnaim ochazim b'talit: Two men are holding on to a prayer shawl. This one says, "I found it" and that one says, "I found it." This one says, "It's all mine," and that one says, "It's all mine." Let this one swear, "I am certainly entitled to no less than half of it," and let that one swear, "I am certainly entitled to no less than half of it." And then let them divide it equally.
This passage enunciates what was already a very old principle of jurisprudence: when the evidence is in equipoise, the matter in dispute must be divided equally. But only when "two men are holding on to a prayer shawl": if one were holding and the other had come forward to claim it as his own, of course the result would be different. The Judgment of Solomon (1 Kings 3:16ff.) can be understood as a witty gloss on this ancient principle. The story trades on the insight that a baby is not like a prayer shawl, a piece of inert property which can be divided (or, whose value can be divided) in half. And in that particular case, there was a surprise modulation just as there is in the Mozart piece--one woman abandoned her claim and insisted that rather than divide the baby, the other woman should have it. And then according to the narrative the wise Judge unmasked the truth, there was a "discovery" to borrow Aristotle's words from his Poetics, and a "peripety" if ever we saw one, and a resolution to the whole sordid affair.
Law and Dance, Law and Theater: Performance
Analogies between law and music may be multiplied, but many of them are at the same time analogies between law and the other performing arts. I have already hinted at some similarities between law and theater: the trial unfolds like a plot unfolds, in both settings there is a story which is being told through the speeches of the actors. The story in both cases is mimetic in the sense that it is an account of underlying events which happened elsewhere and at another time. While the contemporary trial does not have the unities of time, place, and action, it does nevertheless have an artificial pace, an artificial place, and a deliberate focus which are similar to those three unities and serve a similar function. It is the overlaying of an artificial structure on the narrative which gives both law and theater their effect. And just as happens in classical theater, there is a resolution at the end, in the form of a plot resolution or a judgment.
In these ways, law and theater are unlike dance. For dance does not need a frame, or a stage. It can just come up. A man is walking along a street in Paris. It begins to rain. He has an umbrella but he does not open it. Instead, his step becomes lighter, he starts to hum a happy tune, and he encounters a streetlight and all of a sudden he's Gene Kelly singin' in the rain. Dance and music can just come up. But classical theater (as opposed to street theater) has an environmental frame--a curtain, or lights coming up and going down. And legal process must be initiated in response to some wrong done, and must terminate. Partly for this reason, we have such things as ecstatic dance and ecstatic music, but it would be hard to imagine "ecstatic theater" or "ecstatic legal process." No: those forms require frames, and they both have a certain degree of deliberateness which is not necessary to music and dance in the same way.
But still, legal procedure has much in common with the performing arts and does in fact require performance. Just as the performer knows that his performance here and now is what counts--that no matter how well he did in rehearsal, it is his performance in the actual concert that counts--so the lawyer and the parties must know that the things they say and do in the course of the courtroom procedure are all-important, and that even little things can affect the outcome of their case. For things get magnified under the powerful spotlight of the legal process and the outcome can often be affected by things said and done in the presence of the court which have nothing to do with the merits of the case.
Let's revisit the story of the Judgment of Solomon, and imagine a slightly different unfolding. According to the account in the Book of Kings, after he had heard the testimony of the two women, King Solomon said, "Bring me a sword. Divide the living child in two, and give one half to each woman." This was the routine, predictable reaction of a court to a dispute over property. Then one of the women said to the court, "Oh, my Lord, give her the living child and by no means slay it." And the other woman said, "It shall be neither mine nor yours: divide it!" Certainly this second woman, the false claimant, talked too much.
Suppose now that once Solomon had pronounced his judgment one woman, the real mother, had simply stood silent, accepting the decree of the court with sorrow and sadness, too stricken with grief to speak. And suppose the other woman had said, "No, Lord, give the child to her rather than dividing it in half!"--not because she was the real mother, but because she was unwilling to go so far with her claim as to bring about the death of the child. And suppose now that King Solomon, believing that the one woman was ready to accept his judgment while only this other one had spoken up against it, had said to this second woman, "Ah, I see that you are the real mother! Give the child to her!" But she was not the real mother and he would have gotten it all wrong. What determined Solomon's judgment was the outspoken proposal of the false claimant to divide the baby in half: the real mother could never have made such a suggestion. The suggestion was made as an appeal to justice, but it did violence to the interests which the judicial process was invoked to protect, namely the right of the mother to have her child. But if the false claimant had simply been quiet, what then? What would Solomon have done if neither woman had spoken at all? Or if the false claimant had spoken altruistically while the true mother remained silent, what then? We can imagine that after Solomon said, "Give her the baby for she is the real mother," the false claimant thought to herself, "Ha! My ruse has worked after all. Surprisingly I have won my lawsuit and I shall have the baby!" And if now the real mother says, "But my lord, I am the true mother!" Solomon would disbelieve her. "You stood silent as I decreed that the baby should be divided!" How many peripeties could we have had, after all?
King Solomon did not follow legal procedure here: after he had pronounced the judgment, he continued to judge. In this way the story demonstrates a fundamental mistrust of legal procedure and the storyteller places his trust instead in the wisdom, or cleverness, of the judge.
A case I handled about eight years ago shows how much more seriously legal procedure is taken today, in our courts. I represented the wife of a businessman who had been a general partner in a series of real estate limited partnerships. These partnerships had raised tens of millions of dollars over the years from affluent residents of Los Angeles's west side, and this businessman had been considered a perfectly reliable pillar of the community and a genius at recognizing hidden value in real estate. He and his family had lived in a style suitable to a successful business executive. He had handled the business affairs and she had handled the raising of the kids and the management of the household. It was a very typical pattern. But within the last few months, discrepancies had been alleged in the partnership accounts, and this businessman had been accused of dishonest dealings. It was clear that he had failed to segregate the money in the various partnerships, had moved money around from one partnership accoun t to another, and he was accused of using partnership funds to pay for purchases and investments of a personal nature.
The wife came to me under very unhappy circumstances: her husband had committed suicide, and the life insurance company was just about to pay her two million dollars under a policy of life insurance which her husband had taken out a few years earlier. (In California, even if the insured commits suicide the policy must be paid provided that the suicide did not take place within two years of the issuance date.) But the other general partner had sued her claiming that the insurance proceeds, along with all the family's other money, properly belonged to the partnerships and not to my client because her husband had used partnership funds to pay the premiums on the policy. The court had issued a strong injunction against her, freezing all her assets except for $5000 a month which the court allowed her for living expenses. This made her lose confidence in her first lawyer, and now she wanted me to represent her.
With regard to the insurance proceeds, there is a division of authority among the states: some hold that if the partner purchased the life insurance with embezzled funds the remedy is to restore the premiums to the partnership with interest but that the policy payout still goes to the beneficiary. But the one California case to consider the issue, a case decided in 1942, had held otherwise, that the embezzled funds could be "traced" through the premiums to the policy proceeds and that the whole amount went to the victim of the embezzlement.
It was a difficult case because after all the deceased man had millions of dollars of his own money to which he was entitled. How could the court ever decide whether the particular funds which were used to purchase the policy had come from the partnerships or had come from his own personal assets? And there was the possibility, which my client urged on me, that the other general partner who had raised the accusation of embezzlement was himself the embezzler and had driven my client's husband to suicide and was now trying to deflect scrutiny from himself to his deceased partner. There were something like fifteen different partnerships involved, and hundreds of thousands of items in the potential accounting. The $2 million paid out by the insurance company was put into my trust account to abide the outcome of the case.
After the case had been pending for about two years, and the other side had still not developed an accounting which showed definitively that my client's deceased husband had embezzled anything, my client received an offer to sell her home in which she and her family had lived for over twenty years. Under the existing injunction, she was not permitted to transfer any of her property, so we agreed that I would bring a motion for orders allowing her to sell the home and to use the sale proceeds to pay for her children's college tuition which was just coming up. My argument was that the home should certainly be sold on the terms proposed, and that the original injunction had issued on weak evidence and that the plaintiff, who was the other general partner, had not completed any accounting even though he had all the books and records and two years to work on them. He of course opposed the sale, and vehemently opposed allowing my client to use any of the sale proceeds.
A hearing was held on my motion to modify the existing injunction and in the course of this hearing my client was called to the witness stand and was asked questions aimed at showing that instead of having been an innocent housewife, she was an active participant with her husband in his ongoing program of embezzlement and fiduciary abuse. Wasn't it true that she signed all the checks on the household accounts? Wasn't it true that she was in fact an officer of several of the corporations controlled by her husband which served as general partner of several of the real estate ventures? Wasn't it true that she often helped her husband at the office? Wasn't it true that there was in fact an office in the home, and that she had ready access to all the records kept there?--I made frequent objections to this line of questioning on the ground that before it had even been established that the husband had embezzled anything from the partnerships (and there still was no real proof of that) it was pointless to show that h is wife "participated" with him in anything.
But the judge, who was an old, crotchety man and a sourpuss who evidently disliked and distrusted both my client and me, kept overruling my objections. When my client was finally excused and told to step down from the witness stand, she was visibly irritated and upset. "That sonofabitch!" she whispered to me as she approached the counsel table. The lawyer for the other side overheard what she said, and so did the court reporter who was sitting next to us. Opposing counsel literally jumped up from the counsel table and said, "Your Honor. The defendant has just committed a contempt in your presence and you should punish her summarily." The judge was hard of hearing and asked the lawyer, "What did she say?"--"She called Your Honor a son of a bitch," the lawyer replied in the most unctuous tones he could summon up. The judge then said to me, "Did she do that?"--I responded immediately that my client had spoken to me in confidence, and that if she had said that anybody was a son of a bitch, I am sure it was the op posing counsel she was referring to and not the court.
Meanwhile you cannot imagine how angry I was at my client whose inability to control herself and whose breach of the courtroom's decorum was now going to trigger additional proceedings and put her in serious jeopardy of losing the presumption of good faith with which she had previously been clothed.
The law distinguishes between two kinds of contempt; those committed in the presence of the court, which may be punished summarily without any kind of a trial, and those committed outside the presence of the court which must be proven by evidence taken at a special mini-trial. The judge said, "Well, Mr. Chodos, if she called anyone a name like that, it was a contempt of the court which I should punish summarily. We don't have name-calling like that in our courts."--Your Honor, she spoke to me in a whisper and in what she thought was confidence. Whatever she said, you did not hear it and therefore it was not a contempt committed in your presence. You may therefore not punish it summarily.
To my pleasant surprise this argument persuaded the judge, who scheduled a mini-trial on the contempt to be held that very afternoon, after the luncheon recess. "You may make your arguments to me in the course of that mini-trial, Mr. Chodos, this afternoon."
That very afternoon there was a mini-trial limited to the question of whether my client had committed a contempt for which she might be fined or even jailed. I argued that since the court had not heard whatever it was my client said, she had committed at most an attempted contempt, for which no punishment could be imposed. I reminded the judge of the story told about Abraham Lincoln when he was a young lawyer arguing to a judge who ruled against him on every point. After the rulings were made, Lincoln started to stack and move his law books about on the counsel table thumping them down audibly while muttering under his breath. The judge leaned over the bench and said to him, "Mr. Lincoln, are you attempting to display your contempt for this court?"--"No, Your Honor," Lincoln quickly responded, "I am attempting to conceal it!" I argued that litigants are free to dislike the judges before whom they appear, and that they are free to make statements to their counsel in confidence. It was an abuse for opposing cou nsel to have listened to what he must have known was intended to be a confidence, and then to have sought to obtain advantage from it. "Mr. Chodos, the contempt issue is not between your client and her adversary: it is a matter of the court's dignity and decorum. Assuming that your client wanted to make a statement of that nature to you in confidence, she should have waited till she left the courtroom. As it is, the court reporter heard clearly what she said, and there is no question in my mind that she uttered the words. What other issue is there which I must consider?"
Your Honor should consider whether she was referring to the court or to opposing counsel, for if she was referring to opposing counsel, there was no disrespect of the court.
"I disagree: I will not have litigants hurling insults at each other and at the lawyers in my courtroom. That kind of behavior is just not to be tolerated, because this is a court of law. I think the elements of contempt have clearly been shown here, although it remains unclear to whom she was directing her remark. I would normally ask your client who it was that she referred to, but this is a quasi-criminal proceeding and she is protected by the Fifth Amendment from having to take the witness stand. Furthermore I might disbelieve her testimony if she did take the stand. So I am going to give her the benefit of the doubt. I am fining her $1000, to be paid to the clerk of the court within ten days."
"As for the ruling on the injunction motion: I certainly cannot allow your client to spend money which may not belong to her. Accordingly I will allow the sale of the house as long as the plaintiff is informed of the terms and given a copy of the escrow instructions. But the net proceeds of any sale must be held in your trust account, Mr. Chodos, along with the insurance proceeds, until further order of this court."
A thousand dollars was not an excessive fine for this kind of contempt and no prison time had been imposed, so I suppose the hearing went as well as I could hope. Yet even I was surprised that something had come up in the course of the litigation process which was quite collateral to the merits of the case, and that the court did not let it slip by but rather dealt with it meticulously, with full legal procedure, according to law.
Legal Procedure as Ritual and Liturgy
In the examples I have given you, there was no jury. In small claims court we do not use juries. Instead, eager to streamline the process and to keep it inexpensive, we allow the judge to serve as the trier of fact--as well as the applier of the law. And in Solomon's day, there were no juries. And contempt is generally tried to a court sitting without a jury. But it is in the jury trial that legal procedure shows its true colors most clearly.
In every jury trial there comes a point in the process where the judge begins to instruct the jury in the law applicable to the case just before they retire to the jury room to deliberate over their verdict.
Ladies and Gentlemen of the Jury: It is now my duty to instruct you on the law that applies to this case. It is your duty to follow the law. As jurors it is your duty to determine the effect and value of the evidence and to decide all questions of fact. You must not be influenced by sympathy, prejudice or passion. You must decide all questions of fact in this case from the evidence received in this trial and not from any other source. You must not make any independent investigation of the facts or the law or consider or discuss facts as to which there is no evidence. This means, for example, that you must not on your own visit the scene, conduct experiments, or consult reference works for additional information....
And so on. The process usually takes an hour or more depending on the complexity of the case. After all the instructions are read, the jurors are escorted by the bailiff to the jury room where they deliberate over their verdict. All rise as they file out of the court. And then the judge himself arises from his bench, and all rise again; and the court is adjourned, waiting for the jury. The trial ends when the jury comes back into the courtroom and delivers its verdict and it is read aloud in court, and then entered upon the minutes. Later the parties will have an opportunity to persuade the judge that the verdict should be ignored, or modified before judgment is entered on the verdict. After judgment is entered, all that is left is appeals--which are a different subject.
Now perhaps not everyone has the same reaction to these jury instructions as I do, but whenever I listen to them I am overcome by the feeling that I am back in synagogue. The judge reminds me of the rabbi, and we the listeners feel as if we are a congregation. There is the almost soporific effect brought about by the shameless, deliberate repetition of words we have heard countless times before. There is the unmistakable temporary dulling of the sexual appetite, and in fact of all appetites, and an invitation to a kind of complacency which only liturgy can produce. What is it that awakens all these feelings in the court setting?
We want to say that here we are again listening to an authority figure in a black robe, reading to us from a canned and time-hallowed text, and we are required to listen respectfully and not to interrupt. This is just like listening to a rabbi read from the prayer book. But this can hardly be the whole answer because we can quickly think of other situations which are similar in these respects but which do not have any liturgical feeling. At an upscale restaurant in Los Angeles you and your party sit quietly at your table as the waiter, wearing a black coat and tie, holds his cue card in his hand and tells you, "Tonight the chef has prepared an excellent sea bass over a bed of risotto. He has covered it with a light curry sauce with just a touch of ginger, and sprinkled it with thyme and a touch of nutmeg; it's truly excellent! And for our special salad this evening, the chef has prepared tomatoes over endive with an olive oil dressing...." And there you are, sitting quietly and listening to the authority figu re read these prepared words, but there is no sense of being in church.
What is different? Well, first of all, there is no sense of aspiration in the restaurant, no call to higher ideals. In the synagogue, despite the conspicuously sexual imagery associated with the taking out of the Torah, the removal of its covering, the unfolding of it and then the reading of it, and the returning of it to the ark, the purpose of the liturgy is to bring our consciousness higher and to that end, the sexual appetite SUMMER 2002 229 and all the appetites are dulled. But in the restaurant, there is an unabashed appeal to the appetite, an intention to arouse it and then to satisfy it. There may be an appeal to standards of excellence--excellence in the preparation of food; but no call to a higher self, no mention of God.
In the jury instructions there is also a call to the higher self, an appeal to suppress all appetite and to abandon all personal interest in favor of rising to a higher function--the function of judging fairly. And the deliberate ritual associated with reading the instructions and then allowing the jury to retire to a private place to begin its deliberations is also reminiscent of the stage movements carried out by the rabbi and the cantor as the ark is opened, the Torah is taken out to be read, and then returned to the ark. In these ways, legal procedure takes on a very liturgical "look and feel."
The judge's reading aloud of words he did not himself write--this is a ritual. And when his reading aloud is witnessed by all those assembled in the courtroom, in whose presence he reads aloud deliberately, it becomes liturgy. In this way we may distinguish liturgy from other forms of prayer. When Hannah (1 Samuel 10ff.) wept privately in the Temple because she was childless, and prayed to God that if he would give her a son she would dedicate him to God, the High Priest Eli saw her lips moving and thought she was drunk. She was praying most intently, but she was not producing liturgy, nor was she participating in any ritual.
In the case of prayer, we may ask whether any prayer can possibly be legitimate, whether it can ever "work," if the one who recites it is not the one who wrote it. How can I possibly pray to God in 'words that you wrote for me, or that Jesus wrote for me, or that Solomon Ibn Gabirol wrote for me? What authenticity could such a prayer possibly have? How can I be speaking to God from my own heart if I am speaking in words that were written from another heart?--We can ask this question, but then it leads us to a different question: How can I possibly pray to God in words that I wrote myself? If the words do not have the authority of tradition behind them, if they have not been hallowed and purified by centuries of repetition, what significance or authenticity can they possibly have?
The procedures of the court do include much in the way of ritual. Yet ritual comes in many shapes and sizes. There is mindless ritual, things done by rote, things repeated obediently but without real understanding. And there is mindful ritual which is deliberate and highly conscious.
When we think about liturgy we may ask ourselves, In what frame of mind does the participant come to the rituals? And we realize that there is no one answer: a single person might come to prayer in a different mood, a different state of mind, on one day and on another. The words that he recites mindlessly this day may move him to tears when he recites them on another day. They may take root in his heart today and blossom only later. Like other forms of practice, religious practice may be helpful to successful religious performance--even if it is not always necessary.
It is a feature of religious practice that we do not know the intention of the practitioner: the practice is deliberately open to all, and we are ready to say that every worshiper, in his own way, is trying to come closer to God. Whether he comes as a supplicant, or merely as an obedient servant, or whether he comes to church dressed up in his finest clothes only to show his neighbors how pious he is, in all these cases we are willing to say, "He is worshiping and the rituals and liturgy will ennoble him--in spite of himself, in spite of everything."
In the case of legal procedure, however, we know the motives of all the participants. We have a right to assume that the plaintiff feels aggrieved, that the defendant feels unjustly accused, that the judge is seeking to apply the law, and that the jurors are ready to do what is fair.
And what about the spectators in the courtroom, the theaitetoi? They are not really required participants in the courtroom procedures at all. They are permitted to watch, but they have no function to perform. The fact that they may watch is the liturgical aspect of legal procedure: that the community witnesses the rituals and participates in them empathically. But those in the audience do not speak, and should not speak, and should exert no influence over the procedure.
Law as Society's Ongoing Quest for Integrity
What then is the purpose of legal procedure? To answer this question, we have to make a distinction between honesty and integrity. Honesty is a relationship between our words and the facts, while integrity is a relationship among our words, the facts, and our actions. Honesty and integrity are often in conflict. If you are hiding Jews from the Nazis during World War II, and the Gestapo knocks on your door and says, "Are there any Jews here?" honesty would require you to say, "Yes, three are hiding in my attic and the fourth is in my cellar." But such an answer would lack integrity completely. For if you have resolved to hide them, you have already committed to lying to the people you are hiding them from. Honoring this commitment lends integrity to your resolve to hide the Jews, and forsaking the commitment upon being asked the question would demonstrate a lack of integrity.
We respect integrity in a person whose perception of the facts is clear and accurate: where that perception is distorted, the integrity cannot be respected. The perpetrator of a hate crime who believes that all Muslims are enemies of America and burns down a store or a mosque, acts with consistency but his perception of reality is unexamined and distorted. The court that sentences the prisoner to life imprisonment but fails to hear the testimony of a key witness, or admits a document which turns out to have been forged and as to which cross-examination was not allowed--such a court acts without integrity.
What the court is supposed to do, and what its procedure is designed to make sure it does, is to apprise itself fully and accurately of the facts in the case before it--and this is the evidence phase of the case, which culminates in the jury's dispassionate weighing of the evidence--and then, having determined the facts, to fashion and impose a judgment which is appropriate to those facts. In determining whether a judgment is appropriate, the court will consider existing law and precedent, to make sure that its response to this set of facts is similar to the response of other courts to similar facts; for if each court were to make a law unto itself, we would not feel that the legal system was coherent or that it had integrity at all. All this is to say that the court seeks to act with integrity, and all its actions are intended to demonstrate, model, and promote integrity.
Not only does the judge have to act with integrity: so do all the participants in the court's processes. For third-party witnesses there is no distinction between honesty and integrity because their only function in the courtroom is to answer truthfully all proper questions put to them. But for the parties, who may themselves be witnesses, the processes of the court require them both to speak truthfully and to act appropriately. They must be ready to abide by the court's orders and rulings, they must be prepared to lose, which is to say that they must confront the possibility that the court will not agree with them, or even that it will disbelieve them. For this reason, it may require great courage to come to court as a litigant--something which is not required in the same way when we watch a play or listen to music.
For all these reasons, whenever I am asked for a definition of the law, I give this one answer, with utter confidence: Law is society's ongoing quest for integrity in interpersonal affairs. It is a sister to the arts, and it is something quite beyond ritual and mere liturgy.
(1.) Egyptian Book of the Dead, ed. E. A. Wallis Budge (Dover, 1967).
(2.) Roscoe Pound, The Spirit of the Common Law, The Dartmouth Alumni Lectureships, 1921 (Francestown, N. H.: Marshall Jones Company, 1921).
Rafael Chodos is an attorney in Los Angeles and the author of The Jewish Attitude towards Justice and Law and The Law of Fiduciary Duties.
Based on a lecture delivered by Rafael Chodos, November 9, 2001, at the Conference on Procession, Performance, Liturgy, and Ritual, Claremont Graduate University. All rights reserved.
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|Date:||Jun 22, 2002|
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