I’m pretty sure I’ve mentioned before that Lincoln is my number one hero, not just politically but as someone who never stopped learning and growing morally and psychologically even up to the night of his death. Got more books on him than any normal person would have in a whole library, and would like someday to have time to do some work on him from a policy perspective. That said, it shouldn’t surprise you to have me recommend a recent Lincoln book as one you might enjoy, but the one I recommend might do it.
Brian Dirck’s Lincoln the Lawyer is not the typical “great speech,” “moral philosophy,” or “how weird was he?” kind of book you generally see about him out right now. Instead, it’s a look at Lincoln’s life in those years when he was practicing law in Springfield, IL, and riding the circuit to make his living. Those were the days when one became a lawyer through apprenticing, not legal certification and credentialism, and, while this may be familiar to legal types in theory, the book gives the rest of us a very nice description of how it actually worked with one of the premier examples of its effectiveness. It also describes nicely the way civil and criminal justice worked in the period, a lifestyle that would likely empty the current profession of practitioners if reinstituted today, with its circuits and judges and attorneys traveling to cases rather than vice versa. IOW, a description of a time and way of life that can still fascinate.
But what really is of interest from our standpoint here is the book’s discussions of Lincoln’s approach to this work and the philosophy of that approach. Lincoln was known as a lawyer mostly for his corporate work, part of his general Whig philosophy of supporting development of national capital for economic development. But he also worked both sides of the criminal justice bench (and maybe even acted as a judge from time to time), and that’s where the book’s worth to us in corr sent comes from.
Much of the testimony of contemporaries about Lincoln fell prey to the iconography that followed his assassination, but Dirck does a nice job of separating wheat and chaff. It appears that Lincoln was indeed a formidable litigator but also maintained that careful balance among participants in the court culture that still determines so much of judicial decision-making. It’s clear that Lincoln was adroit in the “show-making” of the courtroom, the drama and theatrics that were necessary to process the case successfully. Dirck details what was true then and still true now:
Since colonial days, criminal trials have been “social drama” with “theatrical elements,” . . . . Defendants are expected to play the role of penitent offender, lawyers act as passionate spokesmen for either the people’s righteous anger or the principle of guilty until proven innocent, depending on which side of aisle they stand. Judges act the part of solemn dispensers of impartial and objective truth. . . . Criminal trials lay bare those things we fear in ourselves, and the verdict, whatever it might be, offers a form of closure. People believe justice has been done and feel either that the genie of human depravity has been put back in its bottle or that the long arm of the law has not been allowed to harm an innocent person.
Lincoln apparently did more prosecution work than defense, but did enough of the latter to establish a reputation as someone of integrity in that line of work. The story that he refused to defend anyone he considered guilty is arguable, but it is true that he showed tendencies to look for any reason he could to avoid executing those eligible during the Civil War (but note that people still got executed). The best evidence is that Lincoln might not have been as dedicated to defending those he believed were guilty as those he didn’t know. What is clear from this book and others is that Lincoln had a very deep view of human nature and the people caught in it and understood the “there but for the grace of God” that underlies the humility, mercy, and justice of judging right from wrong and punishing the latter that offsets the “darkness” of humans that Reinhold Niebuhr frequently spoke of. (It’s not coincidence that Niebuhr considered Lincoln a hero as well as I do, or that I consider Niebuhr a hero as well.)
The part of the book that was most valuable to me was Dirck’s discussion of “friction” and “grease,” which will, I’m sure, get head nods from most attorneys but really had been pretty nebulous for me. Institutions and human interaction generate friction in relationships, which leads to bad or unfortunate outcomes, which require the law and its practitioners to overcome in order to allow the interactions and institutions to again work as intended. “Grease” was the lawyer’s product, the lubricating of the friction to stop the obstacles to the general flow of society and to max the productivity. If you have a view that people are cut from the same cloth and inherently inscrutable, then being judgmental might feel good but will just impede solutions to settlements. Better to apply “grease” and get things moving again:
It was, rather, the hard-won lessons learned by an attorney who came to understand that clients, witnesses, courtroom colleagues, and opponents were all essentially unfathomable in their innermost agendas and purposes. In a courtroom, it was best for the lawyer to concern himself with “manifest behavior”—procedures, overt agreements, and that which could be proven (or disproven) via tangible evidence. Reckless speculation about what lay underneath the legal surfaces led nowhere, and could only impede the smooth operation of the system.
Which gets me to a point I frequently make here, but which I had unthinkingly attributed simply and unfairly to modern practitioners when it is in fact built into the DNA of the legal profession from Lincoln’s day and before. The emphasis on maintaining the system forgets that the system, any system, is just a means, not the end. In applying the “grease” to keep the system operating, there can be the normal “goal displacement” that causes practitioners to forget the ultimate goals of that system. The ultimate goal of a system of “justice” is, by definition, justice, not the comradery of the practitioners or the “efficient” processing of offenders and victims. It’s clear that, even in Lincoln’s day, the displacement had already taken effect, with all the deleterious impacts we see every day in the (il)legitimacy of our “justice” system and the subsequent breakdown of obedience to norms and laws, that is, neither has the depravity been repressed nor the innocent kept from being harmed. When such is the case, we need to decide whether it still has any right to exist, not just accept it as the best we can do.
It’s easy to see how the goal displacement happens. Conflict and confrontation in pursuit of determining what is most fair in every single case is not fun. Staying calm, applying grease speeds things and makes dining later more comfortable. And, since everyone is maintaining the system, no one in particular has to take blame or even feel badly about their contribution to it all. If prosecutors are evil in the eyes of defenders, then they can be evil, too, and vice versa. In most cases, it’s just venal v. venal, but the impact on the players is the same. And when the people supposedly most responsible for “justice” treat it as just a game, claim (as one author quoted by Dirck does, echoing claims we’ve heard recently by defense bloggers) that “justice” doesn’t matter, then why should we be surprised by the conspicuous cheating, lying, and law-breaking, not to mention now the subversion of the principles outlined in the Bill of Rights, Constitution, and Federalist Papers that are changing our nation to giant yawns from the general public, that now characterize our culture and society?
As I’ve said before, we in general as a culture have adopted a ridiculous belief that adherence to “the market” will magically bring maximum results for the society. As long as the process is working, the goals and ends achieved will automatically be the best. You hear those claims about our market [sic] economy, our marketplace [sic] of ideas, our “market” elections [sic], and also of our “justice” market where, if we just let prosecutors and defense laissez-faire their way through pleas and the occasional trial, well, then the outcomes must by definition have been the best. Even as the evidence of the failure of that process to accomplish that piles up alongside the evidence of market failure in our economy and free speech and elections. And anyone who points to these failures is treated as traitorous or worse. Stupid.
After reading this book, I do owe my friends in the legal world today an apology. I should have known, but I didn’t, how long and deep the tradition to apply “grease,” even when friction is in fact needed (as that Civil War thing showed Lincoln even understood), is. Friction gave us our Revolution, ended slavery, got more people more rights, basically everything of value that we’ve evolved as a people in our history. A profession dedicated to “grease” above all ends up having to be something to be overcome, not applauded. This is especially true today in corrections sentencing where our adherence to a failed process and to punishments used because they support tradition and the sunk costs of that current process threaten the viability of communities and their ability to fund the other priorities they must meet to maintain themselves besides just a very narrowly defined “public safety.”
I know I’m not saying anything that legal critics haven’t been saying for decades now (and notice the effect!!) so I have no hope that anything major will really change in time to have the impact needed. But I do think that perspective is valuable in itself, and Lincoln the Lawyer is especially good at providing that perspective for those of us who care but haven’t gotten it before. And if nothing else, you’ll learn more about Lincoln, which I consider an end in itself. I’m betting you agree by the time you finish the book.