This short parenthesis in the discussion of politics can be justified by the fact that justice is the object of both politics and law. The practice of law is the practice of politics on a smaller stage. Political action, involving a new concept of law and justice, closer to the environment of industrial work, established not only that all (or almost all) were equal in respect to the law, but also that justice would take its own course. In the course of history, the various moments of change in the pragmatic framework were also moments of change in regard to the justice system. In incipient political praxis, rulers administered the law. Even today, a governor or president is the court of last resort in some legal cases. And law, like politics, relies on rhetoric, on language as the mediating mechanism of concepts.
In the course of history, the various moments of change in the pragmatic framework were also moments of change in regard to what today we call justice. The more powerful applied their own ideas of law under circumstances of incipient human practical experiences. It was the role of the appointed leader, whether in the magic of ritual, in tribes, in religion, in forms of settlement, to judge matters under dispute. Law focused on agreements, commitments, and integrity of the human body, of property, of goods, and of exchange. In time, the distance between what was done, affecting the balance of people's rights and obligation, and the reaction to it increased. A whole body of mediating elements, religion included, governed action and reaction. Just as myth and ritual did in their ways, major religious texts testify to how rules of living together and preserving life were established and implemented. The scale of society, reflected in the nature of the pragmatic context, played a crucial role in the process in respect to what was considered a crime, the type of punishment, and the swiftness of punishment.
What is of concern here is the change from the legal code elaborated in the framework of literacy and legal experience in the civilization of illiteracy. The institution of law and the professions involved in it embody expectations of justice under assumptions of efficiency pertinent to human practical experiences. New lands were discovered, new property was created, and machines and people made higher productivity possible. Rights were fought for, access to education opened, and the world became a place of new transactions for which the law of the land, inspired by natural right, no longer sufficed. It was in this context that literacy stimulated both the practice of legality and the inquiry into the nature of human rights and obligations. But it is also in this context that the language of legal practical experiences commenced its journey into today's legalese that no ordinary person can understand. Raskolnikov, in Dostoyevsky's Crime and Punishment, criticized the "legal style" of those educated as lawyers. "They still write legal papers that way." Though he remarks that the writing had "a kind of flourish to it…, yet look how illiterate his writing is." The criticism could be glossed over, due to its context, if it were not for an interesting remark: "It's expressed in legal language and if you use legal language, you can't write any other way." Trying to cope with ambiguity in language forces the lawyer to look for precision.
The equivocal condition of the practice of justice is that law originates in the realm of political experiences, but needs to be implemented free of politics, i.e., regardless of who is in power. The blindfolded goddess holding the scales of justice is expected to be objective and fair. The separation between judicial and governing entities is probably the highest achievement of the political system based on literacy. But it is also the area where, under circumstances of practical experiences different from those based on the underlying structure of literacy, the need to change is critical. This applies to new means of maintaining a just system for people less affected by the subjectivity of those holding the balance of power, and more by the ability to process information relevant to any object of dispute. The blindfolded goddess already uses X- ray vision in order to substantiate claims and counterclaims. Modeling, simulation, expert genetic testimony, and much more became part of the justice routine. Each party in a trial knows in advance what type of jury best serves its interests. The context for all these changes sheds light on their political meaning. If the practical experience of politics and justice are disconnected, the effectiveness of both suffers.
Politics stimulated change in respect to the perception of democracy, civil rights, political authority, and welfare. It demystified the origin, function, and role of property, and introduced a generalized level of relativity and uniform value. Law, on the other hand, supposed to protect the individual, should therefore be less inclined to trade off fairness for the lowest common denominator. Comparing this ideal to real legal practice is an exercise in masochism. The ever increasing, and fast increasing, human interaction via market mechanisms was followed by instances of conflict and expectations of negotiation. Without any doubt, the most pervasive mediating role is played in our day by legal professionals.
Due to its own self-interested dynamics, the legal profession insinuates itself in every type of practical experience, from multinational business to relations between individuals. Lately, it is involved in finding a place for itself in the world of new media, involving copyright laws and private rights versus public access. So one cannot say that law, as opposed to politics, is not proactive. The problem is that it is so in a context bound to literacy, and in such a way that style transcends substance. Latin, reflecting the origin of the western legal experience, used to be the language of law. Today, few lawyers know Latin. But they are well versed in their own language.
Legalese is justified by the attempt to avoid ambiguity in a given situation. There is nothing wrong with this. What is wrong is when legal language and the procedures encoded in legal language do not meet the pragmatic expectation, which is justice. Law and justice are not the same thing. A good case in point is the recent case of the State of California vs. O. J. Simpson. The spectacle of the legal procedure showed how a literate practice ended up convoluting justice. In fact, literate law is not meant to serve justice. Its purpose is to use the law to acquit a client. Allan Derschowitz claimed that the lawyer's duty is to his or her client, not to justice. This statement is far from the expectation that each member of society has. Therefore law loses its credibility because it undermines the notion of the social contract.
Some might say that this state of affairs is nothing new. Even Shakespeare criticized lawyers. Far from being a wholesale attack on the profession, the description I have given deserves to be contrasted to the possibility of effective judicial mediations in the civilization of illiteracy. Since changes occur so rapidly, the law of yesterday rarely applies to new circumstances created today. It used to be, people often find themselves reminiscing, that laws and rules (the Ten Commandments, at least) were expected to last and be respected, in their letter-which was carved in stone-and spirit, forever. No one will argue that justice is not an eternal desideratum. But achieving it does not necessarily mean that laws and the methods of lawyers are eternal. Some actions that society once accepted-child abuse, sexual harassment, racial discrimination-are now considered illegal, as well as unjust. Other crimes (whistling on Sundays, kissing one's spouse in public, working or operating a business on Sunday) might still be in some legal books and locally observed, but they are no longer considered instances of law- breaking. The result of changes brought about by changing pragmatics is the realization people have that there is no stable frame of reference, either for morality (as it is subject to law and law enforcement) or for legality.
Did lawyers create this situation? Are they a product of new human relations required by the new pragmatics? Who judges the legal system in order to determine that its activity meets expectations? There is no simple answer to any of these questions. If justice is to affect human practical experiences, it has to reflect their nature and participate in defining its own perspective in respect to the rights that people integrate in new practical experiences of self-definition. It is all well and good for the legal system to use non-literate means, such as DNA evidence, videotapes, and access to legal information from around the world via Internet. But if they are then subjected to literate pettifogging, all this effort is to no avail.
The programmed parliament