WOE UNTO YOU, LAWYERS!

principles of The Law are phrased in unfamiliar and therefore impressive language,
so that their vagueness, their contradictions, their frequent and obvious use merely to
justify desired results, all these are concealed from the non-lawyer’s untrained eye.
Substitute “within the legislative intent” for “desirable,” substitute “executory
contract contemplating adequate consideration” for “appointment with the
hairdresser,” and the lady’s legal principles begin to take on a fake dignity, an air of
solemnity and importance. This dignity, moreover, has no relation at all to the
meaning, or lack of meaning, of the words used.
Or, going at it from the opposite angle, take the well-bolstered legal principle
that state regulation of private enterprise amounts to deprivation of property without
due process of law unless sanctioned as a proper exercise of the state police power.
Substitute for it the simple and equally enlightening statement that certain state laws
are bad unless they are good – and The Law begins to sound as silly as the lady.
As a matter of fact, The Law and those who lay it down are often considerably
sillier than the lady. For the lady, as was perfectly apparent, knew what she wanted
and decided accordingly, unbothered by the requirement that she justify each of her
decisions with a broad generalization of principle. That requirement was easily
satisfied because all the decisions she was called on to make affected her, the judge,
directly and immediately, and because the business of fitting a principle to a
ready-made decision was, as it always is in law and elsewhere, a simple matter.
But the judges who make legal decisions frequently have not the slightest
interest in the outcome of the cases they are deciding. Of course if they have such an
interest – and even judges are not immune from political and social emotions; they
like or hate the New Deal, they approve or disapprove of labor unions, they trust or
mistrust big business – then they can and often do, consciously or unconsciously,
revert to the legal procedure of the lady. They judge first and justify afterward. And
in so doing they are acting, if not in a judicial, at least in a practical manner. (Being
practical and being judicial in the cold legal sense are just about mutually exclusive
anyway.)
In run-of-the-mine cases, however, the sort that make up much of the business
of The law, the judges don’t care who wins nor what the eventual decision will be.
The lawyers in the case always care; they know beforehand what decision they want
and so they, in the practical manner of the lady, can fit their generalizations, their
legal pleading, to the desired result. Not so the judges. How then do the judges ever
achieve an answer?
What the judges do, actually, is what the lady pretended to do – and, for that
matter, what the judges themselves pretend to do when the answer is of any concern
to them. They balance – don’t laugh – one set of abstract principles against another
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