Legal Commentary

I'm working on a case book revision (joining the incumbent author in a new edition), and dealing with a chapter I never taught is like class prep, so any excuse to procrastinate suffices for me.  Today's inspiration is Eduardo's post about lawyers (or the lack thereof) on desert islands or space stations.  I have never seen Lost or Survivor (this is not a claim of some kind of intellectual superiority; I'm big into all sorts of weird mind-numbing channel surfing, like Modern Marvels on The History Channel, almost anything on Turner Classic Movies, and watching the Versus Channel's coverage of the Tour de France).  Nevertheless, as the Law & Society Association meeting has just wound up, it's appropriate to theorize why doctors and not lawyers show up in space stations and desert islands.

As Ferdinand Tönnies, one of the founders of modern sociology (and the handsome guy on the right), suggested, this is an issue of Gemeinschaft (community) and Gesellschaft (organization).  Gemeinschaft is best exemplified by the tribe, a community bound together by ties of family, mutual regard, common neighborhood - in short, a pre-modern rural society.  I like the Wikipedia author's description of Gesellschaft:  "groups that are sustained by it being instrumental for their members' individual aims and goals. . . . Gesellschaft relationships arose in an urban and capitalist setting, characterized by individualism and impersonal monetary connections between people. Social ties were often instrumental and superficial, with self-interest and exploitation increasingly the norm." 

What a fine description of modern law and lawyers, and why you wouldn't want too many of them in your ashram!  Healers, on the other hand, have always been around.  (Bones McCoy after curing the big rock:  "Jim, I'm a healer.")  Now that I think about it, I also waste time by watching old movies over and over again:  Gandhi had an ashram and he was a lawyer, but I think this just proves the distinction between theoretical sociology and applied sociology.  We never completely achieve  either in the real world.

Think about all the institutions we create in which reside remnants of tribal-like communities with tribal-like behavior (to Rick Hills' point, I won't say anything about Geertz and Balinese cock-fighting because I've never read it, but I will nominate it for the Hegel Award):  law firms, corporate boards, faculties, Congress, the AALS.   This is why I've always been skeptical of the capability of more and better Gesellschaft-rules to govern behavior of people within institutions.  You can fully constitute the institution through rules (like the rules of chess or football or Survivor), but you can never fully regulate tribal behavior (see Sarbanes-Oxley and the corporate governance debate) that way.