See the other side

By skepticlawyer

Legal Eagle’s post on Lisa Pryor’s rather misguided criticism of the lawyerly tendency to see both sides of an issue got me thinking about the essence of one’s occupation as a lawyer. I think being able to see that the other fellow has a point is often part of it, although things like a careful approach to evidence and the ability to communicate (to clients, other lawyers and judges) also come into it. Lawyers are often accused of equivocation — which in its broadest sense means being slippery with language, using one word with a couple of possible meanings to fudge what one is really saying. As the witches in Macbeth equivocate, there is an understandable reluctance to claim equivocation as any sort of ‘skill’.

And yet, sometimes the lawyer’s talent for hairsplitting and balancing various different perspectives is not only the difference between guilt and innocence for someone on trial, but is at the heart of recognizing that other people are not like us, may believe very different things, and may have perfectly rational reasons for doing so. Here is a common example from my own experience.

I have often had to explain — at great length — why many libertarians and classical liberals consider ‘social justice’ a category error. Injustice requires someone external to the subject to be unjust; very often, however, unequal distribution comes about through a confluence of individual decisions and actions, or the random distribution of talent, and so on. This can seem shocking, and does not mean that libertarians do not care about poverty. It does mean, however, that they are less inclined to ascribe blame to anyone for it. Alas, sometimes shit just happens, and all we can do is pick up the pieces afterwards. Or, given a choice between cock-up and conspiracy, cock-up wins nearly every time.

This potted summary of a position (articulated with most rigour by F. A. Hayek) has led me into a number of debates with people (including some lawyers) who are simply unwilling to credit Hayek’s argument, to accept that an alternative perspective may have some merit. I’ve always been well aware of why people want to believe in ideals of social justice; the idea that virtue and innocence should be rewarded and vice punished runs deep in our culture. Many people want to bend lots of things into a pretzel in order to ensure that the ‘right’ things are rewarded. They’ll bend markets, taxation and — as Hayek argued — liberty all out of shape.

This single case study could be multiplied many hundreds of times over, but it boils down to an unwillingness to credit the other fellow’s argument. Now, of course I realise that sometimes the other fellow doesn’t have an argument, and various scholars (including Habermas and Rawls) maintain there are some arguments — while their proponents should be free to make them — that are simply not worth any credit at all. I’m thinking here of the 9/11 ‘troofers’ and the anti-vaxxers.

This complete ‘lack of credit’ seldom arises in the law, however. Once categories like summary judgment have been put to one side, ‘seeing the other side’ becomes of vital importance. This even applies in non-litigious areas of the law. A good contract and commercial lawyer understands that business is a positive sum game, and will seek to facilitate trade while protecting his client’s interests.

If this characteristic is (arguably) at the heart of effective legal practice, I’m curious as to what may be at the heart of other occupations — at least as perceived by their practitioners. I know a lot of lawyers read this blog, but there must be a decent number of others (I can think of traders, economists, teachers and accountants, but there are no doubt many more). What is the essence of your job? What, if you stopped doing it tomorrow, would ensure that your ability to do your job would be irrevocably impaired?

35 Comments

  1. lang Mack
    Posted December 23, 2009 at 7:54 pm | Permalink

    “at the heart of recognizing that other people are not like us,”
    I’m a farmer and the essence of my life is to maintain a balance between what I have and what is expected of me to retain that. That means that I have to occasionally do things that people otherwise find tough and unpleasant, also at the same time, I’ve had guests who wonder were I’ve been at three in the morning ‘doing stuff with stock’ .

    If I may be forgiven, I find that Lawyers, albeit not to single out that trade generally, are more fiscal rather than most, I also find that they are under the veil, decent people 🙂 well I have two as neighbors however I would not like to have a dispute (they are a little lax when it comes to husbandry, and stock control) as I think that a yarn over the fence could prove costly.

    You asked, a reply. (Although I’m convinced you would be an excellent neighbor ).

  2. conrad
    Posted December 24, 2009 at 5:36 am | Permalink

    “What is the essence of your job? ”
    .
    This is almost a theory of mind (understanding others) question. Do you mean my job from the employer’s perspective or the employee’s perspective? I’m sure there’s a big difference!

  3. Posted December 24, 2009 at 6:27 am | Permalink

    The essence of my job as an information security architect is to understand the balance between risk (legal, practical, and otherwise) and the need for an organization to conduct business efficiently.

    I think a lot of what I do really *does* boil down to seeing the other side of things; I know what the “most secure” way is, but I also have to understand that implementing it might mean debilitating restrictions on the way my employer does business.

    So what I have to do is see their point of view, clearly articulate mine, and propose a compromise that works. There’s a reason a lot of IT security folks become lawyers. 😉

  4. Posted December 24, 2009 at 7:21 am | Permalink

    (1) A lawyer acting in a dispute /has/ to understand the other side or the game can’t be played very well (a bit like chess).

    (2) On drudgery and education systems: Perhaps if education systems are supposed to prepare you for life, somewhere between kindergarten and graduation you should probably have a REALLY boring subject with LOTS of assignments to get you prepared for working for da man.

    (3) To those regulars I don’t have an email for… seasonal felicitations… Io Saturnalia… stay safe.

  5. ken n
    Posted December 24, 2009 at 4:56 pm | Permalink

    “Perhaps there’s also an element of seeing the other side to teaching – I try to remember how I felt when I didn’t know the things which I am teaching so that I can imagine how best to teach my students.

    I also try to think how to reduce a concept down to its essence.”

    Insightfully said, LE.
    I have nothing to add nor detract from that thought.
    So, only appreciation.

  6. Caz
    Posted December 29, 2009 at 11:48 am | Permalink

    No matter how good the communicator, if no learning, or self-direction to learn more, takes place, it’s a failure to teach.

    Even in business the focus is on *communication* – explain everything into the ground to the peons, in the right way, and at the right time, and everything will be rosy, including a mass following the *leader*.

    If only life really did only require a bunch of great communicators to achieve goals.

    The world is not bereft of good communicators, yet nothing much good comes of it.

    Being able to identify and understand other points of view is pretty much at the centre of performing well in any white-collar job. Which might explain why so many such jobs are performed in such a seemingly slap-dash manner.

  7. pete m
    Posted December 29, 2009 at 8:52 pm | Permalink

    All areas of law are litigious, as they all are subject to a visit to Court and / or the impact of judge made law. But your main point is well made – it is a poor lawyer who only focuses on their client. I found I’d come across as annoying or unsympathetic when I challenged clients to tell me the other side’s case. I did find it opened their eyes, however. I’d also challenge them to look for self-help (legal, not violent!) rather than litigation to help solve their issues. Funny things happen when your client starts to think in this way and feel in control.

    re communication – I feel it is the heart of every job. A waitress today told my 18 month old not to play with a packet of sugar on a coffee table. She was shaking it like a maraca and I would return it, unharmed, after we were done. She then delivered my order with a “thanks love” and thought all was good. I won’t be back. $4.10 for a lousy coffee and they worried about their sugar packets. F’ em. Even if she trashed it, I figure I get a couple with my drink even if I don’t use them. F ’em. Sorry, not feeling very happy about an old harpy with no customer care thinking a 5 cent packet of sugar is worth p’ing off a customer. We actually know the owner of that coffee shop, but I don’t go in for revenge etc. Their fault for employing a nasty person.

    Teaching to me is the greatest profession. To have as your work the chance to inspire, to influence someone’s life, must be amazing.

  8. melaleuca
    Posted January 4, 2010 at 6:04 pm | Permalink

    “I have often had to explain — at great length — why many libertarians and classical liberals consider ’social justice’ a category error. Injustice requires someone external to the subject to be unjust; very often, however, unequal distribution comes about through a confluence of individual decisions and actions, or the random distribution of talent, and so on.”

    Wrong, wrong and wrong. A society is also a system and a system can be unfair without any particular individual being to blame.

    To give an example, Australia hasn’t had full employment or anything close to it since the 1960s. That was a time when governments risked being kicked out of office if the unemployment rate rose to just 2%. Since that time complicated and changing systemic issues- the current GFC being the latest of many- have meant too many people chasing far too few jobs and hence the “injustice” of unemployment has become a chronic social problem.

    I think you’ve committed a category error by ignoring the structural social realities that can produce a far greater injustice than a few random handbag snatchings 🙂

  9. Patrick
    Posted January 5, 2010 at 6:37 am | Permalink

    Really mel? what percentage of the adult population is working now, and what percent was working in 1960?

  10. Posted January 6, 2010 at 4:20 pm | Permalink

    I was thinking about social justice the other day. I think the reason for it is simply that people see extremes of wealth and poverty, see many impoverished thru no fault of their own and think of it, naturally, as injustice – social injustice. And what’s the opposite of that?

    They then get addicted to the phrase without thinking thru the implications of what such justice actually entails. George Monbiot has coined the term ‘global justice movement’ to replace the absurd ‘anti-globalisation’ tag given to various activist groups who think they’ll make the world a better place by making the G20 spend big on rent-a-cops.

    So get ready for even more fun. 🙂

  11. Posted January 6, 2010 at 4:21 pm | Permalink

    I think you’ve committed a category error by ignoring the structural social realities
    .
    What structural social realities exactly?

  12. melaleuca
    Posted January 6, 2010 at 5:39 pm | Permalink

    “What structural social realities exactly?”

    Umm, re-read what I wrote as I gave an example.

  13. Posted January 6, 2010 at 7:12 pm | Permalink

    [email protected] on proportion of adult population working now v 1960….

    There’s a difference between work and employment. Not all work earns money. Ask a 1960 housewife (pre microwave, automatic washer,….)

  14. melaleuca
    Posted January 6, 2010 at 7:14 pm | Permalink

    Actually Hayek’s whole “road to serfdom” mantra is obviously a conception of a just social order and thus neatly falls under the rubric of social justice.

    The more I read about Hayek the more I become convinced that he was essentially a nong who produced a couple of reasonable insights. Read this quote from a 1977 Reason interview reproduced by Don Arthur at CT for instance :

    “Reason: Yet Sweden is reasonably successful…

    Hayek: Yes. But there is perhaps more social discontent in Sweden than in almost any other country I have been. The standard feeling that life is really not worth living is very strong in Sweden. Although they can hardly conceive of things being different than what they’re used to, I think the doubt about their past doctrines is quite strong.”

    http://clubtroppo.com.au/2006/11/09/rudd-vs-hayek/#comment-60699

    What paranoiac and delusional twaddle. Does anyone take this kind of talk seriously?

  15. jc
    Posted January 6, 2010 at 9:10 pm | Permalink

    So Mel:

    One short sentence you consider stupid without offering any evidence of your own (despite there being a net outflow of smarter Swedes over the decades) makes you think everything else he said was crap.

    When I grow up I want to be just as perfect and without fault as you and the Don.

  16. Patrick
    Posted January 7, 2010 at 5:51 am | Permalink

    Thanks Dave. I am aware of that, not least since I do a fair bit of bloody housework myself.

    But in the context of Mel’s specific claim that employment was at its apogee in the 60’s, I am not sure what to make of that. After all, presumably that housework is still being done today (with some time savings from the ubiquity of once-luxurious appliances). Do you mean that real employment in the 60s was even lower than just looking at the percentage of the population ’employed’ would suggest?

  17. Posted January 7, 2010 at 9:43 am | Permalink

    But there is perhaps more social discontent in Sweden than in almost any other country I have been.
    .
    But it’s true. It’s because everything’s so well planned that people top themselves. It’s a place that can make you miserable even if you’re Agnetha Fältskog. 🙂

  18. Posted January 7, 2010 at 10:01 am | Permalink

    Umm, re-read what I wrote as I gave an example.

    No you gave something you called an example but it was no such thing. Australia experienced no significant problem until the 1970s because it was a protectionist colony of the British Empire. This shangri-la outlasted the Empire for a time because of the large boom of the 20th century’s third quarter and because we had high tariffs and subsidized manufacturing.

    Menzies should’ve used the time to liberalize the economy. He didn’t. Whitlam tried and muffed it, too much, too fast wrong time. Hawkeating did the job and yes it created what’s called an underclass. That’s the consequence of the Welfare State/Neoliberal double-act that determined economic policy in the West until this year.

    It was not the result of some inbuilt systemic unfairness. At most it was the result of taking away systematic instruments that redressed the unfairness of wealth inequality. But had we not done this our economy would’ve snow-dived after the 1980s and we would now be enjoying an equality of poverty together.

    The problem with the socialist view is that pretends that it is always society and not nature that is unfair. If socialists reinvent rugby they’d fix it so the huge gorillas that play it would be weighed down and shackled so the weedy pocket pencils could play just as well. The result would be a shabby game, nerdy self-esteem based on a fool’s premise and, think about this, injustice to the gorillas.

    Or are we gonna fix it so when the nerds programme the computers they’ve got to do so in the midst of head splitting noise so they ain’t any smarter than the gorillas?

  19. Patrick
    Posted January 7, 2010 at 1:01 pm | Permalink

    What we should fix is to oblige socialists to express themselves in words of two or less syllables 😉

    But we could have a kumbaya moment if Adrien and Mel accepted that both differing human appetites and abilities (Adrien’s ‘nature’) as well as different circumstances (Mel’s constructs or whatever they were) combine to create a world of inherently, and necessarily, unequal outcomes.

    Australia in the 1960s was a place where, compared to Australia now, appetites and abilities were less relevant than circumstances.

    Even if that went with a system that overall produced lower inequality (for the sake of argument, since I don’t believe that) one could reasonably think that the current system is fairer, perhaps even because of its broader range of potential outcomes.

  20. Posted January 7, 2010 at 1:36 pm | Permalink

    I love the vogue for putting quote marks around the word nature. Another tactic in the age-old Apollonian strategy to deny the cold fact that we’re just a buncha monkeys on a rock.

    Like Dubya saying the ‘Merican lifestyle ain’t negotiable (spit!). Oh yes it is boy! Here’s nature openin’ negotiations.

    God help Tupelo!

  21. John H.
    Posted January 7, 2010 at 1:44 pm | Permalink

    Another tactic in the age-old Apollonian strategy to deny the cold fact that we’re just a buncha monkeys on a rock.

    Most people will admit that in principle and if you listen carefully you may realise that they do not construct their analysis without reference to some “other worldly” aspect of being human. Many people seem to see their own agency as the principle cause of their behavior and being, I find that contradictory and funny.

  22. Patrick
    Posted January 7, 2010 at 1:58 pm | Permalink

    hmm, I only thought to indicate that I was referring to Adrien’s specific usage of nature and not any other usage, but I guess your theory is more entertaining…

  23. John H.
    Posted January 7, 2010 at 2:10 pm | Permalink

    Actually Hayek’s whole “road to serfdom” mantra is obviously a conception of a just social order and thus neatly falls under the rubric of social justice.

    Is his concept of “spontaneous order” utopian?

    but I guess your theory is more entertaining…

    Not so much a theory Patrick as a philosophy, an attempt to be thoroughly scientific when thinking about human nature. If you’re interested, look at the ideas of the philosopher Quine. Give it time though, very difficult to shake off all those ideas about our being that culture has bequeathed us.

  24. Posted January 7, 2010 at 3:16 pm | Permalink

    Most people will admit that in principle and if you listen carefully you may realise that they do not construct their analysis without reference to some “other worldly” aspect of being human.
    .
    meaning they’ll say they agree with Darwin and then proceed to hide the implications from themselves with buckets of bollocks.
    .
    Many people seem to see their own agency as the principle cause of their behavior and being, I find that contradictory and funny.
    .
    Aarrgghh! Not the free will stoush again.

  25. Posted January 7, 2010 at 3:18 pm | Permalink

    Patrick – Nature does have something to do with the fact that some of us are better looking, stronger, smarter, more talented etc. Yes?

    It also has something to do with the existence of the family which lies at the heart of heredity which has something to do with ‘class’ yeah?

  26. John H.
    Posted January 7, 2010 at 3:23 pm | Permalink

    Aarrgghh! Not the free will stoush again.

    No Dude, I also remember that battle of me against the whole crowd and I aint going there again. This matter goes way, way beyond that little stoush. It covers everything from molecular biology to human psychology. I suspect you know what I am on about but then does that make you a sick puppy like myself?

    Mark Twain: Never lose your illusions. You will continue to live but cease to exist.

  27. melaleuca
    Posted January 7, 2010 at 5:24 pm | Permalink

    Adrien says:

    “No you gave something you called an example but it was no such thing”

    You bore me Adrien. Clearly you have no idea what I meant. I used the aforementioned expression in the sociological sense as per for example CW Mill’s arguments in “The Sociological Imagination”.

    I’m outta here ’til someone says something interesting.

  28. Posted January 7, 2010 at 5:41 pm | Permalink

    I’m sorry I bore you Mel but semantic gymnastics are no replacement for actual analysis.

    I’ve never read that book and don’t intend to any time soon. I’ve seen enough sociological imagination for now. For example, those sociologists who imagine that by playing around with the definition of words one can create a better state of things. Calling a man confined to a wheelchair ‘differently abled’ doesn’t enable him to walk.

    Your statement refers to a structural inequity where none exists. You are incorrect. Pretty much for the same reason as those who’d assert ‘social justice’ as an actual politico-legal concept are likewise mistaken.

    It’s a wearisome tactic to try and bolster up a failed argument by referring to obscure texts and claiming ennui. Reminds me of some blog somewhere. I forget what it’s called. I thought you were better than that.

    The orthodoxy of what is now known as the left is kaput old bean. No-one outside Balmain believes you can create Kumbaya with statutes and public basket weaving programmes.

  29. melaleuca
    Posted January 7, 2010 at 5:55 pm | Permalink

    “Your statement refers to a structural inequity where none exists. ”

    You don’t understand what the expression means, champ.

    Let me try to dumb things down as best I can with another example. Let’s imagine there is a country called Oz with 100 people in the job market chasing 80 jobs. In such a situation 20 people must end up unemployed irrespective of whatever talents the 100 job seekers possess.

    If you’re still having trouble understanding what sociologists mean when they use the word “structural” please let me know and I’ll see if I can dumb things down some more.

  30. Posted January 8, 2010 at 8:37 am | Permalink

    Mel, there’s really no necessity for such a disparaging tone. I understand what you mean. What you fail to understand is that the availability of jobs in a market economy is not ‘structural’ but organic. It will fluctuate according to the fortuna of supply and demand. If there are 110 jobs all of a sudden and a labour shortage what then?

    A structural inequity is one in which say, you are barred from certain types of work if you’re a woman or black. Or where, if your parents are working class you are not allowed to enter university. As in there is a structure in place that keeps you unequal.

    Again you are misunderstanding what structure is and this precipitates such problems as errors like ‘social justice’. I’m not sure it’s accurate to that sociologists mean what you say you mean. But if that’s an example of ‘structural’ I’m afraid I think it in error.

    Give you an example. In Australian cities, and very much Melbourne, beggars have become a daily spectacle. It’s rare the lunch hour where you don;t get touched for change. Now everybody is different and I won;t generalize. But there’s an old man who hangs about and asks for dollars. He’s been, according to my information, a junkie for 40 years. He’s also been a very nasty piece of work. Now old men on the street are a class example of social injustuice right? But this guy’s done nothing with his life except perpetuate violence and shoot up. Is his situation not just?

  31. Posted January 8, 2010 at 9:34 am | Permalink

    Mel – In the spirit of the post I’m going to try and move this into more constructive territory.

    Let’s just accept that there are two understandings of ‘structural’ at play here without quibbling about their validity. In a situation where there are less jobs than people there’s an inequity. We can both accept that.

    Let’s ask ourselves to what extent this is society’s fault. There are two ideas of society that I can see. In one society refers to the sum of associations that constitute a population. In the other the word denotes a collective entity. This might seem the same but it’s not. The first is organic. Such a society is always in oscillation. Associations break down, reform, change their modality and begin. The second is more architectural. We can speak of Australian society over a long period of time using this sense. Australia is a political entity, there is a cultural unity grounded on this. However in the second sense Australian society is organic. What characterized Australian society in the 1950s does not characterize it now.

    Both ideas are valid. But when one deploys the idea of justice one must be careful to make a distinction (imho).

    That said let’s look at the 80 people got jobs, 20 don’t scenario. To what extent is this economic situation a social responsibility? It is not entirely under social control is it? If it were there’d never be unemployment and/or the GFC would never have happened depending on your class politics. If it’s not entirely under social control then to what extent is it a matter of social architecture? And to what extent must society (as a collective) act?

    Now I think that unemployment benefit is the answer to that question. This is a social justice policy mechanism but given the facts of capitalist society I think the socialism is warranted. I don’t want people starving here. Trouble is that unemployment benefit creates a situation whereby people can get by without working. People will do this. The answer then becomes a. not giving them enough to get by for very long and b. Placing them under state surveillance where they have to demonstrate job-seeking according to a set criteria.

    That’s the problem. It leads to a situation where the state is allowed to interfere in the private zone. Libertarians are right in citing this as cause for concern.

    Imho

  32. melaleuca
    Posted January 13, 2010 at 7:03 pm | Permalink

    “Trouble is that unemployment benefit creates a situation whereby people can get by without working. People will do this. The answer then becomes a. not giving them enough to get by for very long and b. Placing them under state surveillance where they have to demonstrate job-seeking according to a set criteria.”

    Wrong again, Aids. The people who choose to “opt out” cause no trouble at all since we don’t have a problem with unfilled job vacancies. Those who opt out are actually performing a community service as they reduce the demand for scarce jobs.

    “Now I think that unemployment benefit is the answer to that question. This is a social justice policy mechanism but given the facts of capitalist society I think the socialism is warranted.”

    Sorry Aids old cheese, socialism means either direct worker (former Yugoslavia, Israeli Kibbutz’s) or state (old USSR) ownership of the means of production. It has nothing whatsoever to do with the dole. Please learn to use words correctly.

    Wouldn’t your talents be better employed over at that bastion of intellectual rigour known as Catallaxy? 🙂

  33. Posted January 14, 2010 at 3:49 pm | Permalink

    Mel, please can the patronizing tone. I use the word ‘socialism’ to denote a broad political ideology that emphasizes collective social responsibility. And kindly refrain from naming me after a disease.

    You have not managed to counter my arguments or to even step up to the bat really. Ergo you’re not entitled to condescend to me.

  34. melaleuca
    Posted January 14, 2010 at 6:50 pm | Permalink

    “I use the word ’socialism’ to denote a broad political ideology that emphasizes collective social responsibility. ”

    Well yes I think we’ve already established that you’ve used the term incorrectly. The term socialism has a very clear meaning in political science and sociology and the same definition is to be found in authoritative general usage dictionaries (Oxford etc..).

    Here is the Concise Oxford definition:

    “1. A theory or policy of social organisation which aims at or advocates the ownership and control of the means of production, capital, land, property, etc., by the community as a whole, and their administration or distribution in the interests of all.

    2. A state of society in which things are held or used in common”

    If you don’t want to be patronised then use words correctly please or, if you don’t understand what they mean, do not use them at all.

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