"The law" pretends to be what it is not.

At all levels of adjudication, the judge tries to appear as a "standard bearer" or even the "servant of law", as if his or her discretion was bound by its letter. Rule of Law is often presented as the alternative to a Tyrant's Will. In fact, however, the "rule of law" is not well understood. Like "justice" it is a concept that all sides invoke, simultaneously and from conflicting interests. There is universal and profound ignorance of "The Law", an abstraction, no matter how lengthy its recitation.

And if a Rule appears to apply, it has subjective exceptions which can, and often should, swallow it up. For example, there is the principle that the specific rule "prevails" over the general expression -- which is an admission that the law is swiss cheese. Semantically, words have no objective meaning - not a single word can survive deconstruction, and nor can the law.

In addition, judges are keenly aware of the maxim that "the spirit prevails over the letter" of the law, which is another way ultimately giving sway to the subjective will of the judge over any possible theoretical objectivity in the realm of semantics.

And of course, one is always left wondering what the Legislative Law-maker intended in the first place? Where lobbyists write most of our laws, where many of the laws are simply reactions to extreme cases of abuse, where there is No Lobby willing to fund objectivity, order, common sense, and "public good" where factions write the rules.

However, there are a number of institutional self-correcting mechanisms "at work" in the legal system. One is the Separation of Powers, the "independence" of the judiciary from legislative and executive power. Another is the "due process" cluster of rights in which the conflict is ventilated by professional advocates with Notice and Opportunity to respond to each other; this creates a kind of "record" or precedence which give validity to the derivative decision.

Finally, there is the concept of EPIKEIA, which dates back to Classical Greece. This is rooted in fairness -- whatever the law says, its application must go beyond mere policing its margins, or automatically spitting out a result. Epikeia commands the consideration of application: In addition to the letter of the law, the executive police work, the matching up of the facts of the case to the laws which "apply", the Epikeian Step requires consideration of the result in the particular case in its possibly unique circumstances. Without throwing out or amending the law, is it sensible and fair to apply it to the parties before the court now?

Modern courts, however, are paralyzed by the accusation of "subjectivity" -- most judges want to hide the political facts of their appointment, the lack of merit in the "choice" made in seating them. They are sensitive, after all, to the mystery of how they ended up in such a seat of power; they understandably do not invite scrutiny into that example of a process of "application". Judges cling to the appearance -- and it is pure fiction -- of "objectivity". Now, Judges rarely discuss "fairness". Chief Justice Earl Warren was one of the last great judges to test the outcome against this segment of the franchise of the court. He understood the Epikeian burden, the importance of that pause before application of the Rule, to ask if it works appropriately in the particular case.

Just as Plato wrote that "Without an Absolute, the particulars are meaningless" -- and 2500 years of philosophy is the footnote consequence, and the phenomenon of angst is as fresh today as then-- so is every judgment meaningless without Justice.

Confessions of a Bottom Feeder

Truth to tell, my reputation is bad. For one thing, this sort of "goes with the territory" for attorneys. We are drawn into conflicts where mud is currency. Even the finest characters find themselves covered with splatter, especially those with courage who are not filled with fear for their precious "reputation" as the fur begins to fly. An "attorney" who has never been savaged, never accused of ANYTHING, has probably done very little, or has never represented anyone in any kind of trouble.

Secondly, I have actually TRIED to get into trouble. I was looking for it. Interestingly, I thought lawyers had a sort of public duty to ferret out the wrong-doers. Not content with helping "victims", someone has to actually PURSUE the wrongdoer, make them accountable. Well...that is not going to go down quietly. Wrongdoers do not hesitate, in fact they are the first, to scream accusations. Oh, how "injured" they pretend to be, how the foulers cry "foul", when caught.

Finally, I STARTED my career by offending, entirely inadvertently, Justice Gardiner's highly-developed sense of self-importance. As the incorporator of the first professional "paralegal" organization in Orange County, my name was brought to his attention, and he has punished me ever since. Even now, decades after "paralegals" have become widely-accepted members of the team across every field of law practice, my name was already "associated" with an ancient impropriety -- something unauthorized THEN, albeit acceptable now.

Others are now able to benefit from the development of a more complex, layered, multi-professional practice using "paralegals". But once Justice Gardiner condemned our efforts, my career became a political football, as other judges seeking Gardiner's approval, caught the short-sighted and baseless hysteria.

As President Wilson said, if you want to make powerful enemies, just try making things better.

Hence, to shorten the long story, the reduction of my practice. From work in the office of the counsel to the President of the United States (Kalmbach's librarian when he counseled Nixon in Newport Beach), I am now picking up the cases which are resting on the bottom. And it is a surprisingly rich flow. There is more here, in the darkness, than ever meets the eye....