A former law partner used to say that the practice of law is really social oncology: Criminal defense and civil rights lawyers spend their time dealing with things that just don't fit within a well-functioning social organism. A man accused of murder represents an aggressive malignancy; a person complaining of discrimination presents a challenge to a settled practice in a given location. But using illness as a metaphor is perilous, as Susan Sontag noticed long ago. Using illness as a metaphor to metaphorically describe something else altogether is perhaps impossible.
I am sometimes stunned into silence at the sheer waste of it all: The law is messy, untidy, and raw. It is rarely the case that a legal conflict does anyone real good. Trial, for example, is a zero-sum game: Two parties collide: one wins and the other loses. I suppose that trial represents the surgeon's approach to illness. Cut, cut, cut and discard the leavings. That may work in medicine, but what about the law? In our work, the leavings are people and their families.
Consider the carnage done in the name of justice in our criminal courts. This week's Economist reports the by now familiar statistics about mass incarceration in the United States. We have 2.3 million people in prison. That exceeds the population of 15 states. Our incarceration rate exceeds that of any other wealthy nation. And this ignores the effect of incarceration on families: Imprison a father, and leave a child home without guidance. We imprison too many, for too long and for inadequate reasons. How is it that in the land of the free we so freely treat so many people as though they were little more than social tumors?
I am not claiming that a man or woman prone to violence should be set free to terrorize others. There are people who should be removed from society. But treating each breach of the law as a crime worthy of incarceration is like treating the common cold by surgically removing noses: the results are unnecessary and leave disfiguring scars.
A model other than the surgeon's scalpel needs to be brought to the criminal law. Perhaps we can learn from alternative medicine. Is the person who committed a minor crime in need of something other than surgery? Treating a social irritant in his or her environment makes more sense: Criminal law as homeopathy?
The oncology model is more troubling on the civil side. In these cases, the irritant might well be a settled social practice in need of change, e.g., housing discrimination. But it might also be a person with expectations that are wholly rational, yet entirely unreasonable. Representing a person wholly capable of rationalizing his or her desires yet deaf to what society is prepared to offer is one of the law's most difficult challenges. Where the oncology there? Is the client the tumor? Or is the society a form of blood cancer, circulating toxic fluids?
The real danger in the social oncology model is that it creates the illusion among lawyers that they are immune to the very illnesses they treat. Others suffer indictments, or mistreatment at the hands of others: We lawyers diagnose and treat. Except we are not immune. Some of the most difficult and disconcerting things I have seen are lawyers themselves facing criminal charges. I've seen confidence men reduced suddenly to childlike terror. The line separating lawyer and client is entirely arbitrary.
I am not prepared to discard the social oncology model, but I am suspicious of it. In a better world, a utopia, lawyers would not be necessary. The rule of reason would govern and like minds would concur about the right solution in any conflict. But this world is far from perfect. Things go bump in the night. Passion, not reason, rules, and we are all members of herds in conflict with other herds. The law might better be conceived as a skilled animal trainer, shaping behaviors around common norms. We work by increments shaping expectations in an environment filled with people who are not so much different in degree, but in kind. I sometimes feel that we are many different species united in appearance only.
The law may not be social oncology. We are too quick to remove those from our midst who transgress norms that may make little sense. Ignorance of the law should be an excuse when the law becomes so complex that even lawyers aren't sure what is and is not prohibited. But people and processes aren't tumors. The oncological metaphor is too violent. Treating people as though they are cancer is wrong. I wonder what metaphor better captures the emotional and social violence of the law?