Love and the Lawyer's Mission
Love and the Lawyer's Mission
The lawyer must be, first and foremost, a lover of men. Only if the lawyer lives for love does he discover the true beauty of his profession.
(Reading time: about 21 minutes.)
Everyone loves to hate lawyers - or, at best, to tolerate them. It is clear in passing conversations, on social media, on websites, in thousands of lawyer jokes… One of my favorite lawyer jokes: “What’s the difference between a living lawyers and a dead one? A living lawyer lies. A dead one lies still.”
There are probably many reasons for this. One of them is certainly a tendency to prioritize selfishness over justice, a tendency visible from the beginning of one’s legal training in Kenya, a tendency that is an unfortunate part of our heritage from the modern Anglo-Saxon legal tradition. But what would an alternative look like? I offer a rough sketch based on the contract, that most common legal arrangement.
I. The Contract as a Relation of Love
a. The Prevailing View
Simply put, a contract is a formal agreement, usually intended to be enforceable by law. The parties to the contract affirm that they will or will not engage in certain courses of action, and they give their undertaking a public dimension: if any of the parties contravenes their obligations under the agreement, they can be held answerable by the other parties to a tribunal that acts with the authority of the community of which they form a part.1 But…why enter into a contract? What exactly is each party looking for – and more importantly, what should they be looking for? What is the point of a contract?
The prevailing orthodoxy goes by the descriptor “neoclassical”. According to this view, what happens in a contract is that the parties to that contract subject themselves to undertakings to pursue prescribed courses of conduct in order to secure whatever is in their interest in the longer term. As one may imagine, seeing contracts this way easily reduces the action of “abiding by the agreement” to one of many possible actions to be evaluated in a cost-benefit analysis: “game theory”. Should I honor the agreement? What will happen if I don’t honor the agreement and the other person honors it? What if we both don’t honor it? What if I honor it and he doesn’t? Each party will pursue the best course of conduct a cost-benefit analysis, mainly in monetary terms. If all the parties think of the contract this way, their trust in each other is minimized. The most beneficial outcomes (according to a cost-benefit analysis) tend to be those in which neither party honors their end of the bargain they made.
If society operated on the general principle that agreements are not to be honored (except when it is useful to do so), ordinary commerce would be exceedingly difficult to achieve, as would its very beneficial outcomes, including the unlocking of creative potential and the production of wealth, to name a few. However, compelling people to honor their agreements would interfere with their capacity to do what they please – and isn’t autonomy central to personal fulfilment? So, according to this neoliberal view of contracts, we should either manipulate people into wanting what would be useful to the rest of society, or subject them to sanctions if they fail to honor their agreements. Both alternatives weight the cost-benefit analysis in favor of some kind of selfish social cooperation, and everyone is happy…or so the theory goes.
A slightly different version of this view, the “deliberative theory”, holds the following. Agents who enter into agreements may have different views about what the aims of or surrounding the agreement are: reciprocity (quid pro quo), maximization of benefits attained under the contract, equal treatment of parties, social welfare, etc. Multiple values are in play. None is to be accorded a preferential weight. Rather, each should be accorded the weight the parties decide to give them as the outcome of rational (i.e., logically coherent) discussions or deliberations. If all goes according to plan, the agreement will be sketched out according to a consensus of the parties. That should make it easy for the parties to honor it, which would work to everyone’s benefit. Of course, some issues could obstruct this communication: power differentials between the parties that can prevent one party from expressing its opinion in all honesty, or a lack of the trust needed to engage in this communication with a commitment to truth and not convert it into a contest of manipulative deception. And yet, if the latter threat is realized, the resulting communication would still meet the essentially pragmatic goal of this deliberative theory. It is in this pragmatism that the deliberative theory can be seen to coincide with the neoclassical theory. According to some, this coincidence just merits a combination of the two approaches.
But there are deeper reasons why both of these theories are inadequate, even though they both touch on parts of the truth.
b. The “We”: Luigino Bruni’s Alternative
Both theories that we have looked at so far emphasize that a contract’s aim is self-interest, even if that must ultimately be at the expense of the other party. The needs and desires of the party at the other end of the table only matter insofar as they modify my own interests, or how easily my interests can be realized, or whether my “interests” include “the desire that everyone involved in this transaction benefits from it”. Indeed, at the risk of getting ahead of ourselves, this latter is a particularly pernicious reframing of benevolence in terms of the primacy of the self. Increasingly, people say that we should do good to others because it makes us feel good. Benevolence is seen simply as an “interest”, a response to motivations that do not lead us beyond ourselves. I do not mean to imply that seeking one’s own interests is an evil. Not at all. If it were evil to seek one’s own interest, we ought never to act according to our desires – and this strange view would make every single action of ours that has an aim (and that includes benevolent actions) evil. But is the good not that which we desire? And, as C.S. Lewis would say, if we are so depraved that our every perception of good and evil is erroneous, on what basis can we possibly trust any of our judgements regarding good and evil?
As he addresses what we have highlighted as a crucial shortcoming of the prevailing view of the contract, Luigino Bruni makes the point that the very framework in which we conceive of the parties to the contract has an economic value. If each party is a self that cannot transcend its own boundaries, incapable of desiring anything for anyone but itself, then the prevailing neoclassical orthodoxy is actually a charming attempt to make the best of an ineradicable egocentrism. However, if the self can be “expanded” to encompass other selves in a unity in which each subject perceives itself both as an individual and as a participant of a larger subject – in other words, if the “I” can relate with others in such a way that every “I” in the relationship perceives itself as part of a “we”, and knows that the others do so – then cooperation, and even self-sacrifice, is the desired outcome, with all the attendant social benefits.
Here’s the catch. If we adopt Bruni’s solution for the sake of self-interest, then we have not truly adopted it. To truly adopt his solution, what we may call the “expansion of the self” must replace individualistic self-interest as the aim that we strive for for its own sake. Therefore, we must consider the question: Is the expansion of the self a legitimate aim for the human person?
c. An Expanded View of the Person
As we see even in the pursuit of individualistic self-interest, the person strives for aims, for things he perceives to be good, to be worthwhile. In this pursuit, he implicitly affirms that what he desires is meant for him and that he is, therefore, meant for it. The pursuit of happiness seems to presuppose a fundamental orientation to the meaningful - or, at least, to what we perceive as meaningful.
Many of us act as if this perception is false, as if this perception is a purely immanent experience whose origin is purely internal. The common saying, “You do you, and I’ll do me” illustrates this point. An even more apt illustration is the example David C. Schindler uses regarding how contemporary science would interpret a fact so simple as our perception of the colour of a leaf: Is a leaf really green? Is our perception of greenness not, in fact, just a reaction in our retina that generates nerve signals transmitted to our brains which then interpret those nerve signals as what we call “green”? Granted, the reaction is occasioned by rays of light that interact with photoreceptors in our retina. Yet, is not greenness an illusion because of its deeply subjective origin? Is greenness not “all in the mind”?
If perception truly is purely immanent, then all our striving for happiness is, quite literally, a “chasing after daydreams.” Any pleasure or joy that we experience as a result is likewise purely internal in origin, as is all perception of meaning. We humans, then, would be fundamentally meaningless – and if any reality is without meaning, then it is questionable whether it proceeds from an all-loving God. If it does not proceed from an all-loving God, if there is such a thing as a meaningless reality, then such a God cannot exist - and such a reality cannot exist either.2 In other words, no reality can be without meaning. Our perceptions of meaning, misguided though they may sometimes be, do in fact disclose real meaning to us.
We may assume, then, that our perception of meaning is true, even though it may not be accurate. This means that the appearance of things discloses the meaningful depths of these things to us. This, in turn, means that there are depths in reality to be plumbed. At this point, we can lay out what seems to be an incontrovertible (though incomplete) hierarchy of reality: inanimate matter, life, sensitive or conscious life, self-awareness or intelligence.
With inanimate matter, what you see is pretty much what you get. This is the level of minerals, chemical elements, stones, water, and similar things. There is a difference between living organisms and inanimate matter, though. There is a mysterious something that differentiates a living body from the corpse of someone recently deceased, a mysterious something that acted as the principle of his physical growth and development – and that something is what we call life. We can take a higher step and move from vegetative life to animal life – that form of life that carries with it a deeper awareness of the world, and of reaction to it, to sensitive stimuli perceived and, in some cases, remembered. And finally, we can take an even higher step and arrive at the level of those who know that they perceive, who have some strange interior independence of materiality (and even of themselves) and look upon it from above, probing it, knowing it for what it is: the level of the human person, who is not merely “something”, but “someone”. In parallel with this hierarchy of depth of reality, there runs a hierarchy of depth of meaningfulness. As we ascend the hierarchy, we encounter beings of whom it is increasingly appropriate to affirm that “It is good that you exist!”, beings for whose existence we can be ever more grateful.
The notion of gratitude discloses a further truth. Gratitude implies a gift, and a gift implies a giver. Gratitude, then, is all the more apt when we enter into a reciprocal relation with a being that can give itself. Furthermore, the act of gratitude is also an outpouring by the grateful person of himself in words, dispositions, and actions. The one who is grateful wants to gaze upon the object for which he is grateful, to be in more intimate union with it, and in and via these actions, to know more intimately the giver of the gift and be in more intimate union with him or her.
This alone presents us with much material for reflection. For example, if we should be grateful for that which cannot give itself, then we should be doubly grateful to a person who gives himself to us in any measure (a friend, for instance), for he is the giver of himself, and his very gift of himself is a gift given to him (and to us) by a Giver who is beyond all of us, a Giver who destines us to be gifts to each other and to bring the entire cosmos into our gift, making the cosmos, too, to be a double gift. However, these reflections lie beyond the limited scope of this article. We may say, however, that, on the human plane, the highest level of meaning is to be found in interpersonal relationships of mutual affirmation of the goodness of the other. The good of each person in this relationship is perceived as a good for every other person involved, and this relationship is completed when each knows the other to have given himself, i.e., when there is mutual trust.
In brief, and returning to the words of Luigino Bruni, the formation of a “we” is indispensable to living a meaningful life.
d. Does Love Have Any Place in Law?
By way of objection, one may very easily retort: All well and good, this talk about love. But what does it have to do with the bread-and-butter practice of contract law?
To address this question, it is expedient to consider Luigino Bruni’s notion of the contract more deeply. As explained above, Bruni vouches for a contract in which each party conceives of themselves as part of a “we” with a common aim. The contract itself, then, is the establishment of a “we”, a single subject with a common aim. The parties agree to bind themselves to certain ways of acting for each others’ sake. Each assumes responsibility for the other. Each directs their actions – their selves – towards the good of the other, to a lesser or greater extent, because, to some degree, they see the good of the other as integral to their own good. Rephrasing this idea in other terms that we have used, each sees themselves as meant for the other, and responds to the meaningfulness that they perceive.
Of course, all of this is by no means automatic. Men are flawed, and often horribly so. However, this does not mean that mutual trust, the basis of the “we”, is impossible. It does not mean that parties can only be “trusted” if their natural instincts are forced by an external body - the power of the State, for instance - to align with each other, so that this body would be the basis and object of trust. The fact that the parties back the contract by recourse to a body having the capacity to enforce their agreement need not be construed as a total lack of trust in the other party’s benevolence, as if the enforcement body would be treated as the sole basis of trust. In fact, the provision for enforcement in the case of breach can be seen as a strengthening of the trust between the parties: this action can be viewed as the parties’ solemn undertaking to perform their word, to live for each other (to a lesser or greater extent), and, should they waver, to deepen the strength of their commitment. Enforcement would serve to establish the parties themselves more firmly as the basis of the trust that permits the contract to proceed.
Here, it is opportune to consider another objection: Does the contract so conceived lie outside of justice, the aim of the law?
We would do well to briefly consider the nature of “the law” - the Latin term for this would be “lex“. The actual content of the thousand pieces of legislation to which Kenyan citizens are subject is by no means obvious. A provision in a law prescribes, permits, or prohibits a course of conduct: drive on the left-hand side of the road, do not erect buildings on riparian land, it is permitted to go to court to have a contract enforced within six years after it was concluded, et cetera. The law uses general terms that imply a somewhat general intention. Whether these terms encompass a specific set of circumstances depends on the content of this intention and whether we deem this intention to have the authority to determine what we should do. That is to say, it is not obvious whether the law requires us strictly to drive on the left-hand side of the road if we are in an ambulance with a patient in critical condition – not until we either assume that the intention of the legislating authority could not possibly have intended us to obey the strict letter of the rule in this circumstance because a life is at stake, or we assume that the legislating authority did want us to follow the rule, but life is more important than the rule. As the legal scholar HLA Hart reminded us more than 60 years ago, we act as if the content of the law is what we think we ought to do, what we think we have a duty to do. We see the words of a statute simply as one of many sources that shed light on our duties towards other members of the public. When we arrive at a conclusion regarding our duty to other members of society in a specific set of circumstances, it is then that law - in Latin, “ius“ - comes into being in its prime, most real sense, with all the attendant internal experience of obligation without which law cannot be experienced as, or, therefore, called law.
Law is fundamentally a relation: that of owing to others what they deserve, what is just. All other things that we call “law” derive their name from this relation. For example, the “laws” are so called because they are a place in which we can discover what we owe to others. The decisions of a judge are called “case law” for a similar reason.
An important part of law is “otherness”. As Pieper affirms, justice requires otherness. Justice deals with what we owe other people insofar as they do not belong to us, as a son does to his mother, for instance. In the act of childbirth, he springs from her womb, from her substance, from her being. In a sense, she is his and he is hers. Justice is concerned with what other people deserve because they are different from us, even though this difference presupposes an underlying unity. Justice deals with what others deserve because we all are humans, or because we all are members of an investment group that we formed among ourselves 30 years ago, or because we all are members of the same community, etc. Justice implies that we are meant for each other in a way so fundamental that it precedes all of our desires, so fundamental that it is that to which our desires ought to conform. And precisely because justice implies that we are meant for each other, justice is merely a beginning on the road to mutual belonging, to the formation of a “we”.
Justice is a promise whose fulfilment is love. Justice, if it is truly justice, longs to expand into love.
II. Implications for the Role of the Contract Lawyer
What might the relationship between justice and love mean for the role of lawyers as “agents of the administration of justice”, as linchpins of the governance of all men by the laws of the State?
Let us return to an idea that we have already considered. As we have said, law comes into being precisely when we come to a conclusion regarding what our specific duty to our fellow members of the society. As we hinted above, we turn to several sources to get to this conclusion: the nature of things (the value of the life of the critically ill patient in the ambulance); our knowledge about the aims that the legislating authority or the people they represent have set out to achieve (their intention regarding whether or not we should affirm life); specific decisions that have been made that determine how we are to achieve these aims (generally, that we should drive on the left-hand side of the road, precisely to affirm life, among other reasons), inter alia.
Of course, there are situations that are much more complex, such as the question of whether Kenya’s National Land Commission (NLC) is obligated to compensate individuals who have erected schools on a piece of land when the NLC proceeds to acquire that land on behalf of the government, even though the individuals seem to have ceded their title to the land to the government 25 years ago in return for the permission to erect said schools, and there is a raft of correspondence among the parties involved.3 What does each party deserve, including the children in the schools and their parents? If the individuals are to have their way, what is the implication of the fact that they frame the behaviour of the NLC as a historical injustice without following the elaborate procedure set out in the Land Act for lodging claims regarding historical injustices? What does the answer to this question imply about the future use of the term “historical injustice” – an answer which is bound to affect the law and those who can lodge claims regarding historical injustices? And what does all of this imply about whether the contract between the individuals and the government (if there was any) should be held to be valid and enforceable?
Questions such as these require that the lawyer undertake a deep and continuing study not only of what justice is and what people deserve as persons, but also the aims of the society regarding a vast variety of matters, the legislation and its authoritative interpretation by the courts, and a multitude of other concerns that affect what specific persons deserve in specific circumstances. Moreover, the lawyer needs the capacity to perceive the demands of justice in concreto. Furthermore, the relationship between justice and love imposes upon the lawyer the exacting task of acting as a midwife of both justice and love, of striving in order that love (or as close a thing to it as can be reached) may be born within the hearts of the parties involved in the contractual relationship at hand.
The lawyer’s task calls for moral and intellectual qualities. Certainly, he must habitually study the numerous concerns that go into judging what is or is not lawful in a particular circumstance. However, to perceive what love requires, to perceive the meaning of the parties involved in the contract, the lawyer must himself know them deeply and see them with the vision that perceives meaning – the vision of love – and then respond with his mind and will to this vision by trying to understand more clearly the meaning he sees, and by living for it. The lawyer must be, first and foremost, a lover of men. And yet, this vision is not something that arises by sheer brute force of will. It seems, rather, to be a vision that we can and must prepare to receive, but that we must receive, as we receive something gratuitously given. This heroic preparation consists in, among other things, the nourishment of his desires by attention to all that is true, honourable, and beautiful; a lively detachment from all that is base and degrading; the courage to live this detachment even when it entails pain and difficulty; and the active recognition of the worth of all persons, which, ultimately, can only be founded on the firm conviction that all are dearly beloved by God. Only by acting according to what he sees (or, perhaps more accurately, what is shown him) with the eyes of love can the lawyer contribute to the establishment of a community of love. And only if the lawyer lives for love does he discover the true beauty of his profession.
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We would like to apologize for our failure to send an article last week. To make up for it, here’s a bit of a long piece - and expect another article next Friday!
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The AfroDiscourse
Bibliography
Books
David Christopher Schindler, Love and the Postmodern Predicament: Rediscovering the Real in Beauty, Goodness, and Truth, Cascade Books, 2018.
Dietrich von Hildebrand, The Heart: An Analysis of Human and Divine Affectivity, St. Augustine’s Press, 2012.
Herbert Hart, The Concept of Law (3rd edition), Oxford University Press, 2012.
Josef Pieper, The Four Cardinal Virtues, University of Notre Dame Press, 1990.
Joseph Ratzinger (Pope Benedict XVI), Spe Salvi.
- Principles of Catholic Theology: Building Stones for a Fundamental Theology, Ignatius Press, 1987.
Juan Carlos Riofrio Martinez-Villalba, Metafisica juridical realista, Marcial Pons, Ediciones de Argentina, 2013.
Luigino Bruni, The Genesis and Ethos of the Market, Palgrave Macmillan, 2012.
Thomas Aquinas, Summa Theologica.
Book Chapters
Christoph Luetge, “Business Ethics”, in James D. Wright (ed.), International Encyclopedia of the Social and Behavioral Sciences, Elsevier, 2015.
Cases
National Land Commission v Afrison Export Import Limited & 10 others [2019] eKLR.
Journal Articles
David Christopher Schindler, “The Redemption of Eros: Philosophical Reflections on Benedict XVI’s First Encyclical”, 33 Communio 3, 2006, pp. 375-399.
Ian R. MacNeil, “Relational Contract Theory: Challenges and Queries”, 94 Northwestern University Law Review 3, 2000, pp. 877-908.
Other Resources
Adrian Nyiha, “The Ethical Nature of Legal Obligation: In Search of a Basis for Interpreting Article 259(1) of the Constitution of Kenya, 2010” (unpublished LL.B. Dissertation), 2021.
United Nations Office of the High Commissioner on Human Rights, “Basic Principles on the Role of Lawyers”, 7 December 1990.
This description of a contract does not address the complexities that international arbitration brings to the table when it comes to identifying the “community of which [the parties] form a part”. Nevertheless, what is said of contracts that meet the description given in this section can be said of any other contract since the element focused on here is the fact that a contract is an interpersonal relationship – and this can be said of all contracts.
This argument, and much of the argument in this section, is developed in more detail in 2 blogposts: Nyiha A (2021, June 7). “Hope and the Meaning of Life in Sauti Sol – Part 1”, The AfroDiscourse.
and Nyiha A (2021, June 22). “Hope and the Meaning of Life in Sauti Sol – Part 2”, The AfroDiscourse.
See National Land Commission v Afrison Export Import Limited & 10 others [2019] eKLR.