The night of common sense.

“The notion that the force at work in the development of law is logic,” writes Holmes, is a fallacy. He wrote that in The Path of Law in 1897 and many times during my stay in law school did I hear people fling quotes from Holmes on that subject. Those people should take their own advice. Already in my third year of my law studies, I noticed a bad habit that my colleagues and I sometimes fall into. The habit I’m referring to is the widespread use of legalese, i.e. legal talk or maybe even legal reasoning, in mundane, day-to-day activities. At times it’s comical and at times it just gets me to shake my head.

At a conversation a few days ago, a colleague of mine was throwing jurisprudence and legal precedents at another colleague since he was late in returning a book and was asking for another chance to borrow it. “According to the concurring opinion of Justice X in…” “notwithstanding the fact…” “…the same” were some of the words used and I looked back and wondered if those were the same words I used before law school. Hardly. But since 2013, there has only been a rabbit hole – a one way street that has no end and the only sight of how things were is the glimpse of the light at the far end of the tunnel upon which the fall began.

As a law student, I can say that I’ve given and sacrificed much on the altar of Malcolm. True enough, it has taken its fair share of my health and mind with or without my will. At times it even takes away my common sense. An example is that famed “Miller test.” Woe to the person who fails to distinguish between art and pornography. Before law school the distinction was clear depending on the level of moral sensibility in a person but then came the Miller v California and the Miller test and now a legal equation has replaced the space our conscience once occupied. In law perhaps there is a need for certainty no matter the cost, but such notion might prove to be harmful as a principle in living (check, Descartes). It became clearer to me that the notion of life being bigger than the law is somehow being made to stand on its head. Some law students now are all too eager to claim that law is bigger than life. If this is not hubris, I don’t know what is.

The satisfaction of having answers to problems is probably what builds the pride of law students. People have problems and law has solutions; lawyers therefore are the problem-solvers or troubleshooters. That, however, is merely in the abstract. On a practical and real level, perhaps it simply is the power of having friends in high places that gives so many that extra ego. A good family name can do many things in a prestigious law school but the most useful perk in the author’s view is that it has the ability to turn mandatory rules into discretionary ones. While a student can’t choose the name he or she is born into, he or she can definitely choose the way in which that name is used. And while they play the role of the innocent sheep, oftentimes they are quite as guilty as the bloodstained wolf who abuses its advantage.

These things go on right before our eyes in law school, yet the outrage always happens on things that are so obvious – headlines in newspapers or machinations by the school administrators. It is almost like we have to act out our sense of justice for ourselves if only to conceal the cloak-and-dagger rituals that go on in class on a daily basis. Yes, many have made their offerings to the gods of Malcolm hall. A pity on those whose reason and common sense had been laid out in that altar and slaughtered. Even more so, a pity on those who have dared to offer their souls as well.

***

I had a good sleep last night. The first time in a long time. At times that is all one needs to get back to writing. Here’s to hoping for more in the future.

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