Unequal Terms

I am a lawyer by trade, and not one who enjoys reading judicial opinions in the common law. I’m not a fancy lawyer, you understand. When it dawned on me my first year of law school that reading opinions was a whole lot of what law school was about, I thought I had made a big mistake. One that I would have to suffer through the rest of my life, because I think all pessimistically like that.

I like the concept of quid pro quo. It’s very algebraic, Hegelian, dialectical. The first class I finally felt an intellectual affinity with was not until my second year, business associations. Today, when I’m reviewing or drafting an agreement (I don’t like to call them contracts), my first question is, “Why are these people entering into this agreement with each other?” You have to understand their business reasons, but everything flows from there. It’s the North Star, once you see it clearly, you know which direction to row your canoe. You just have to row, you don’t have to think.

Some of the hardest agreements to draft are those where the primary reason for entering into an agreement are created by law instead of driven by business. For example, when the law grants a socially deserving beneficiary a marketable and sometimes highly valued benefit for a limited period of time. For that beneficiary, the preservation of leverage as opposed to a quid pro quo becomes the prime concern. You feel like you’re white water rafting as opposed to serenely canoeing. So, that’s a North Star of a sort, except it’s in the form of rocks which you try to avoid the few seconds before you’re almost on top of them.

I think of Lady Dedlock’s (former) outspoken French maid in Dickens’ Bleak House. The only cultural depiction of the law that has ever interested me is Dickens’ fictional English Chancery Court case of Jarndyce v. Jarndyce. Anyway, Mademoiselle Hortense dares to threaten the evil and powerful lawyer Tulkinghorn. She demands he find her a job as a lady’s maid. When she accuses him later of breaking his agreement, Tulkinghorn says he never agreed and anyway she does not have the disposition to be a lady’s maid. I paraphrase, mind you, but Mademoiselle Hortense most assuredly does not have the disposition to be a lady’s maid.

In mathematics, equality means a “symbolic expression of the fact that two quantities are equal; an equation.” Marx thought that if property was equalized, society would balance and cease struggling. But, because we can’t but help having emotional attachment to property and imposing on it a towering historical record of ownership, forcibly equalizing property appears not to achieve balance for the long term; because we have not abolished the concept of property itself. Perhaps an essential part of creation is our historical struggle.

Nowadays, we speak of equality through the language of rights. Why? Because political equality is democracy, but even democracy cannot completely safeguard equality. Democratic rule is one citizen one vote (with limitations throughout history, slaves, women, certain ethnicities). The most serious threat to “one citizen one vote” is the so-called “tyranny of the mob.” A majority of citizens overrides the interests of a minority of citizens in a way that is not okay. However “okay” is defined. The most extreme case is genocide; where other citizens and their vote are, in fact, eliminated. Which has happened, directly and indirectly, throughout human history.

Enter concepts like “bills of rights,” which lay out untouchables, things above the reach of the democracy. This is where things go grey and we get into discussions like the penumbra of the U.S. Constitution. We argue over “rights” endlessly. They are somehow very slippery and open for much contention and debate. They are our modern day proxies for equality. They are objectively defined.

The Athenians, in their incredible coolness, did not try to define “rights” or “equality” objectively. Instead they prepared their citizens for the vote by requiring their attendance at the annual tragic festivals. Attending at these plays was thought to treat the spirit of the spectator so as to minimize the threat of tyranny of the mob during voting.

Aristotle treats the tragedy in his Aesthetics. He says the role of the tragedy is to effectuate a catharsis in the spectator. In his Nichomachean Ethics, Aristotle posits that our emotions are paired, always paired. Like hate and love, or pity and fear. It’s the pity and fear that are treated by the tragedy. Not only are emotions paired, but there is a proper order to the pair and the order is based on Aristotle’s conception of consciousness. Our consciousness plays out in two ways – introjection and projection. When we project, we imagine ourselves in someone else’s shoes. When we introject, we imagine them in ours. In the pity/fear dichotomy, the proper ordering is for us to pity the other when we project and to fear for ourselves when we introject.

Take the HIV epidemic. You see someone with HIV. When your emotions are properly ordered, you feel pity for the individual infected with HIV when you imagine yourself in their shoes. Like I feel when I see babies with cancer in St. Jude’s commercials. I’d say a better modern word is compassion, you wish to alleviate their suffering.

At the same time, you would rightfully feel fear for yourself when you imagine the individual infected with HIV in your shoes. You don’t want that to happen to you. You seek to protect yourself from the disease. Like when we choose not to go on play dates for my 4 year old son when the other children are ill or still contagious, per the advice of our pediatrician, in order to protect our infant daughter who is more at risk for complications.

In this way, self-protection and other-protection co-exist. You will vote in a way where the diseased individuals are protected and the non-diseased individuals are protected. One citizen one vote is safe.

However, according to Aristotle, pity and fear have a tendency to be disordered, dangerously reversed. Instead of feeling pity for the infected individual, we fear them and feel pity for ourselves. No longer do we wish to alleviate the suffering of another while not exposing ourselves to harm. Now we feel we have been harmed by the other person. That person has turned into a danger to us and we fear them. We harm those we fear. The Athenians tried to cultivate “compassion” or “charity” or “the golden rule” in their citizens through the spectacle of the tragedy in order to preserve their democracy.

Equality is a proxy for compassion.

Inspired by WordPress Daily Post for October 16 entitled “Unequal Terms.” The featured image is “The Death of Marat” by Jacques-Louis David (1793). All works by David (1748-1825) are in the public domain.

2 thoughts on “Unequal Terms

  1. An incredibly informative and thought-provoking post.I can’t say I’ve ever had cause to seriously consider the meaning of unequal terms before. We hear the term equality almost on a daily basis, but you have given it an extra dimension here. I know little of law (despite having a cousin whio is a high court judge) but I certainly enjoyed reading this.

    Liked by 1 person

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