Wednesday, June 27, 2007

Lawyers in Film - Case Studies in Courage as Free Will or Determinism.

Posted by Jeff Lipshaw

Steve Lubet (Northwestern, left so as not to be confused with Ben Kingsley as Gandhi, below right) sent a note around asking about law and lawyers in film, and I don't mean to steal his thunder.  I just want to thank him for stirring the thought.  My own conception of what Lubetst a lawyer did was formed not by the film version, or even by seeing the play, but by reading the script of Inherit the Wind when I was in grade school.  I happened by coincidence to catch two movies over the last couple days about law and lawyers, and each of them gave me chills again.  The second was Gandhi, which I turned on this morning here at my son's apartment in Ann Arbor (part of my one day "Adventures in Putrid," which is a whole 'nother story).  More onGandhi that below.

The first was A Man for All Seasons, about Sir Thomas More's fight (to the death) over principle with Henry VIII, which happened to be playing on Turner Classic Movies when I saw Steve's e-mail.  It is a film version of Robert Bolt's play, and won the Academy Award for Best Picture in 1966, as did Paul Scofield, who played More.  More was first and foremost a lawyer, and the plot turns not only on a subtle point of law (not whether he opposes Henry's divorce, but whether there is any evidence of his opposition), but on the place law resides within a world of other forces - in this case, the king's perception of More's implicit but unstated opposition and its effect on the hegemony over the church he seeks to obtain.  I am still thinking about the balance of adherence to principle and pragmatism.  More dies in the cause of adherence to a principle, yet early on tells his wife Lady Alice (Wendy Hiller), pointing to his neck, "this is not the stuff of which martyrs are made."  I think the story is powerful because the principle is so abstract (at least if you are not a Catholic), and thus makes us focus on the adherence in the face of power, as opposed to the principle itself.

More In a key scene (left), Henry (Robert Shaw) alternately cajoles and berates More, as friend and Lord Chancellor, for the ironic reason that the king wants More's commitment, not just his acquiescence or compliance.  As I watched, I thought about my own experience with CEOs, and the times I felt compelled to hold my ground in the face of a similar tsunami of will, charisma, power, and consequence.   How easy to comply!  Why do we resist?  Is every instance of resistance justified?  How do you tell when to hold and when to yield?  What constitutes merely feeding the "all lawyers say is 'no'" canard?

You don't have to watch much of the three plus hours of Gandhi to see most of the lawyer stuff (there is a trial in which Trevor Howard plays a judge later in the movie); it is at the beginning when he is actually practicing law, and figuring out how to oppose unjust laws (like the required fingerprinting of all Indians) in South Africa.  Gandhi says from the stage in a rally against the law "I too am willing to die in that cause, but there is no cause for which I am willing to kill." 

Kant said that the test whether there existed free will in the world was to consider the person who is faced with the choice from a king or prince, on one hand, to die or, on the other, to kill an another innocent person.  He concludes that the fact we can even ponder the choice, much less decide in favor of the former, demonstrates the existence of will over mere deterministic cause-and-effect.  This is, of course, not a matter of empirical or deductive proof, but of intuition, and if you hold (per a subtle determinist like Hofstadter) that all intuition or appearance of will is an illusion, then we don't get very far.  I'd suggest that the illusion might as well be real but that's a whole 'nother story as well.

Where in the law school curriculum do our students get a sense of this real world test?  When does a struggling solo practitioner gather the courage to turn aside a matter she knows is vexatious, even though it will put food on the table?  When does a general counsel finally elevate principle over loyalty and blow the whistle?

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