Not long after the redacted Mueller Report went public, I had a discussion about whether it reflected “obstruction” with an editor from an online heterodox website. I should have known better, but I did it anyway. The argument was me talking about the legal definition of obstruction, and him arguing that he wasn’t. He was talking about the “ordinary” meaning of obstruction.
Is there such a thing? Can there be? For lawyers, crimes consist of elements, conduct and intent, as proven by evidence. For non-lawyers, they consist of a vague impression of wrongfulness, bolstered by whatever facts are known, or believed to be known, that support the impression that something bad happened. Where there are no facts, they have no qualms about filling the gaps with argument and belief. But what they do not concern themselves with is the use of legal words and concepts, but disconnected from legal meaning and proof.
The editor grew frustrated with my insistent law-talking-guy view. I wasn’t’ “getting” it, that everything wasn’t some hyper-technical legal problem, but a non-lawyer perception that wrongs were happening and, to the non-lawyer, demanded redress. Why couldn’t I just understand that he wasn’t talking about legal “obstruction,” but, you know, common-people “obstruction.” In his head, these were two entirely different things, both equally real, even if only one had actual objective meaning.
The discussion went nowhere, as there was no way to dissuade him that it was impossible to use legal words and concepts without the things that defined them. It wasn’t left to each of us to decide what was “obstruction” based on whatever we felt it should be. It either was or wasn’t, based on the law.
This is what I call “squishy law.” It’s been happening forever, that people without any clue what the law provides feel entitled to not merely decide for themselves what it means, but believe it vehemently. They’re “the People,” and isn’t the law for the People? So if the People decide (forgetting, for the moment, that they are but one person, or maybe a similar-minded group) that this is what they want the law to mean, that’s what it means. Who are lawyers to tell them? Just because we have a fancy education, experience in a court where other law-talking people validate our tricks, does that make us more qualified than them to know lawful from unlawful?
Well, sure it does.
This used to be accepted, even if people didn’t like it. Law should be understandable to everyone, and, indeed, it should. Unfortunately, experience has proven that it doesn’t work that way, as people keep coming up with variations on a theme in their actions and their arguments that demand increasing complexity in how the law is applied, or no one will ever know what conduct is lawful and what will put you in prison for life.
But this has changed, not as to the grudging acquiescence of legal knowledge and experience as being the domain of lawyers, but that there isn’t a second tier of what we call law, a “people’s” version, where legal words are used without legal definition, but to mean whatever people feel they should mean. It wasn’t that people denied the existence of law and legal meaning, but that law existed on some technical plane while there was an entirely legitimate plane where a squishy version of law lived, the one where wrongs were whatever people felt they should be, and words meant whatever people wanted them to mean.
And here we were, pedants, denying people their right to decide for themselves what the law meant, what with our definitions and elements, our caselaw and statutes. They knew what was right and wrong, and who were lawyers to tell them otherwise?
Sure, lawyers disagreed about what the law meant and who, in any given case, was right or wrong. Judges got things wrong, which is why there were appellate courts. And even there, there were dissents. So obviously, us lawyers weren’t nearly as smart as we thought we were. Ha!
Except we play by rules and disagree within the paradigm of those rules. Often, the disagreement is on issues of extreme nuance, tiny details that have outsized impact. And sometimes, there is a paradigm shift of monumental proportions, but these happen very rarely, and when they do, make heads explode and cause major shifts in how the law applies. These are the cases known to the public, whereas the vast majority of cases are never known, never considered, because they’re just lawyers doing lawyer stuff, of no real interest to anyone in real life beyond the names in the caption.
So lawyer disputes aren’t usually of the same sort as the squishy arguments non-lawyers prefer. But matters have taken a turn for the worse in the world of Squishy Law. Not only have people rejected our adherence to elements and definitions, but the principles upon which laws are founded. This struck home the other day when someone linked a post here to r/law on reddit with regard to Harvey Weinstein having not yet been found guilty of any crime.
He lost it when he said Weinstein was innocent because he hasn’t been found guilty. That’s the technical legal rule, but it doesn’t mean people can’t believe he’s guilty.
Well, that’s true. This is America and people can believe any damn thing they want to, no matter what. If you want to believe in space aliens, you’re allowed. And you’re allowed to believe Harvey Weinstein is guilty, even if you have no clue what the elements of the offense of which he’s charged are, no witness has as yet testified and you’ve yet to hear his defense. You can believe. But you are wrong.
It’s not that he won’t be found guilty after trial, although that’s definitely possible, but the fact that you have a right, in this great nation, to be wrong doesn’t mean you aren’t wrong. The presumption of innocence isn’t just a technical rule, but a rule grounded in a fundamental tenet of law, that the burden of proving guilt is on the accuser, and that the accused cannot be held to prove a negative, that he didn’t do it, merely because someone pointed a finger and shouted, “J’accuse!” Not even if we want to believe. Not even if the stars align against the accused.
In the world of Squishy Law, this is dismissed as mere lawyer talk, our hypertechical jargonistic rules that the People are not merely entitled to ignore, but duty-bound to reject when they feel strongly enough that someone has offended their sensibilities because they know what is wrong and won’t be silenced by law or lawyers.
Law is becoming marginalized, but there are few White Knights to defend it. The townfolk, armed with their torches and pitchforks, have taken law into their own hands, ready to storm the castle and kill the monster. And because a not insignificant number of lawyers want the monster slain as well, they march on the castle with their torches held high screaming for death.