A comment on the Lori Drew case the other day expressed a point of view that many non-lawyers hold, and gave pause to consider whether it reflects a valid point.

I make no pretense to being educated in the law. Yet I know a conspiracy to do great harm, which was accomplished, when I see it. Logically this is an event that needs to be addressed in society’s criminal-justice system.

But, if the costly and ponderous legal institutions we have created (law makers, attorneys, Judges–perhaps even you through your blog–who consume endless time and money “stewing & getting nowhere”) find it impossible to bring common sense and correct legal standing to the disposition of this matter: as you wrote “adults conspiring to inflict harm on a child,” we ought to dismiss all of these incompetent “Purveyors of Sub-Prime-Justice,” in the manner that their incompetent analogues on Wall Street (having also been failures in the service of the society) are being dismissed: declaring them unserviceable/Bankrupt/a hazard to the society and replacing them.

If we were to boil this down, he’s got a point.  The law is ponderous.  The law is costly.  We consume “endless time and money” and still fail to satisfy most people that the law serves them well.  Law makes, lawyers and judges obsess over details (well, at least lawyers and judges do) case by case, person by person, and far too often fail to provide anything remotely resembling justice.  For all our laws, rules, regulations, explanations and rationales, do we accomplish our goals?

The ideologues amongst us will respond that each law, rule, etc., serves a purpose, refined over years and years, experiences and experiences, to create as perfect a justice as flawed humans can achieve.  While this sounds good, is it true?  Few of us engaged in the law are particularly happy with how it works.  Some, the zealots, believe in the platitudes with all the hearts.  Most concede that it’s a constant struggle to figure out how to navigate between the multitude of principles imposed on the system, each for good reason and yet too often producing an end result that makes us shake our heads in wonderment.

So what if we were to chuck it all, stop tweaking rules and regulations to deal with the issue du jour, and elected instead to reduce all our years of experience to the most basic of precepts, such as the Golden Rule.  Would we then rise above being “purveyors of Sub-Prime-Justice?”

Not a chance.  Everyone has a clear vision of things that they see as wrong.  The problem is that everyone’s clear vision is different from everyone else’s.  Sometimes the difference is huge.  Other times nuanced.  Frequently, right and wrong are merely a policy choice, such as the decision to drive our cars on the right side of the road rather than the left.

The more difficult issue, and the one giving rise to the above comment, is the fact that the law does not cure all evils.  It’s not that law makers don’t want to solve every problem that voters have, but that people have an incredible ability to keep coming up with harmful things to do that no one ever anticipated, and so there is no law forbidding it.  When someone commits a wrong, people expect there to be a way to stop it, prevent it and punish it.  Most of the time there is.  Sometimes, there isn’t.

It’s quaint to believe that we could function as a society with something so clear, so easily understood by all, as the Golden Rule, that would cover every circumstances that happens and leave no gap for the evil-doer to escape justice.  It’s also Menckian in the havoc it would wreak on society. 

Yes, the law is ponderous and unsatisfying, often resulting in injustice and certainly replete with gaps that make the “prevent defense” look like good coaching.  I will not indulge in reliance on silly platitudes that it may not be perfect, but it’s the best man has invented.  I don’t know that it’s the best, and I frequently have severe doubts that we could do a whole lot better.

But the alternative, the “common sense” approach that non-lawyers seem to believe will do better, is pipe dream.  Maybe someone will come up with a better approach to dealing with the myriad conduct that causes harm to others, but this isn’t it.  Until this happens, we’re stuck with the law, for better or worse.