Why Our Legal System Fails to Do What's Right

By Thane Rosenbaum

HarperCollins. 354 pp. $24.95

At the heart of "The Myth of Moral Justice" is a simple but somehow almost poignant assertion: "We want our justice to be just," writes Thane Rosenbaum, echoing an aspiration that began in the sacred writings of the ancients and was expressed with no less solemnity in the Declaration of Independence and the Bill of Rights. ". . . We want our judges to be wise and our lawyers honorable." But Rosenbaum insists that what we want and what we get from our system of jurisprudence are two very different things. "What most people don't realize is that judges and lawyers are motivated by entirely different agendas and mindsets," he writes. "Legal, and not moral, outcomes occupy the legal mind."

The irony at work in "The Myth of Moral Justice" is nothing new. After all, Jesus was tried and convicted before he was put to death, as Mel Gibson has so vividly reminded us, and so were many of the victims of both Germany under Hitler and the Soviet Union under Stalin. But Rosenbaum seems to imply that the flaws and failings of the American legal system are all the more reprehensible precisely because we pride ourselves on our system of justice and spend so much time contemplating it.

"We live in a culture that worships the law, not because we are more lawful, but because our preoccupation with the legal system is insatiable," he argues. He cites as but one example the courtroom fare that fills so many American movies, TV shows and novels: "Moral issues masking as legal problems provide the necessary plot tension . . . ," he writes, "even though such moral concerns rarely make it onto the time sheets of actual, practicing attorneys."

Rosenbaum is a novelist and a commentator whose essays have appeared in The Washington Post, the New York Times and other newspapers. He describes himself as a "lapsed lawyer" and a "moonlighting professor" at Fordham Law School, but he is careful to note that he teaches only courses in human rights, "legal humanities" and "law and literature." And although he once practiced law with a Wall Street firm, he distances himself from his status as an attorney: "I act as though I am ashamed of the pedigree," he confesses.

Essentially, Rosenbaum is troubled by the disparity between what we expect and what we actually get from our courts: "an arbiter of legal disputes and not . . . a dispenser of moral lessons or seeker of truth." And he despairs of how American jurisprudence works to define justice in terms of process rather than outcome: "The legal system functions quite well," he complains, "knowing that most cases don't end up achieving any measure of truth."

The "lapsed lawyer" in Rosenbaum fully understands the distinction between due process and justice. But he seeks something much more exalted and demanding. "To be just is not a legal aspiration but a moral one," he insists. "When someone is acting justly, the outcome makes sense not just to the mind, but also in the heart and soul."

Rosenbaum's self-described moral critique is considerably enriched and enlivened by the connections he makes between our contemporary legal system and our ideas of justice as they have been influenced by the whole of Western arts and letters, ranging from "The Merchant of Venice" to "Bleak House," from Franz Kafka's "The Trial" to E. L. Doctorow's "The Book of Daniel." He even finds something nice to say about "Legally Blonde."

Rosenbaum seeks not just to denounce but also to improve our justice system with what he calls "a morally inspired transformation." He seeks to encourage lawyers and judges to engage in "moral thinking" with empathy and to remake our courts into "a sanctuary for truth-telling." The essential reform that he advocates is turning the courtroom into a theater where morality plays are acted out in public, a venue where the injured are granted "their moral right to testify to their own pain" and those who have injured them are called upon to say "I'm sorry." "Wholly apart from conventional notions of justice, and of course, money," he argues, "the telling of the story and the public acknowledgment of the wrong is an important value even if it produces nothing concrete, other than the story itself."

To his credit, Rosenbaum is both serious and rigorous about what might strike some attorneys as a flight of fancy. He criticizes statutes of limitations, rules of evidence and procedure, plea bargains in criminal cases and settlements in civil cases, among many other features of our legal system, all because they tend to get in the way of the theater of justice that he envisions as the ideal. "There is enormous moral value in having parties to a legal action sit in a courtroom, surrounded by strangers, and swear to tell the truth to each other, and to the world," he insists. "And in the telling of these stories and the release of anger, rather than its displacement elsewhere, there is the possibility for healing and repair."

Rosenbaum seems to realize that there is not much chance that his proposed reforms will be adopted in any formal sense, and he readily acknowledges that many lawyers will find the whole idea to be "ludicrous." But his book ought to be required reading in law schools and continuing legal education classes, if only because at least a few of his readers will be humanized by the experience. And that is, above all, what "The Myth of Moral Justice" is really about. "Whether they like it or not, lawyers are in the healing business," he insists. "It's just that their medicine bags are filled with the wrong instruments."