It’s hard for lawyers not to be envious of scientists, fellow professionals who seem to continually come up with discoveries that improve the human condition while law muddles through from one crisis to the next.
Dan Flores’ book Coyote America may help us to better understand why law seems so fallible. http://news.nationalgeographic.com/2016/08/coyote-america-dan-flores-history-science/
The book is about coyotes, not law, but its discussion of “Old Man Coyote”, the mythical beast that is featured in thousands of Native American tales, adds a new dimension to discussions of law. Old Man Coyote is a divinity of sorts, not the creator of the world like the Christian God the Father, nor a paragon of virtue like his son Jesus, but a mixture of the best and worst human qualities—creativity and deceit, altruism and self-absorption, courage and credulity.
Flores argues that Native American tribes all over the West fixated on Old Man Coyote because they felt that they and the coyote had a lot of common traits. Both were mid-sized animals, predators and potential prey, living in a world of larger carnivores. Both species were only able to survive because of their superior intelligence and the capacity to adapt to new situations.
So the Native American tales about Old Coyote Man can be seen as an early a study of human psychology. In some ways it is an attractive picture; Old Man Coyote is an activist eager to live out the possibilities offered by a wondrous world. But human “coyote psychology” also raises serious questions about law’s ability to achieve the goals we assign to it.
Old Man Coyote is not only smart; he is also by nature restless, never satisfied with his current situation, and usually over-confident in his ability to change things for the better. In the stories he spends most of his time careening from success to disaster. If man shares psychological traits with this restless anarchist, running a legal system sounds a lot like trying to herd coyotes.
And Old Man Coyote lives in a bucolic, static society much more governable than our complex, dynamic, and pluralistic world composed of groups with different histories, values, and views on what constitutes an acceptable future. Not only are the people law aims to govern in many ways ungovernable, but the laws that regulate them are made and enforced by men and women sharing the same flawed “coyote” psychology.
While we speak of the “law” as if it were a single actor, in the United States the making and enforcing of law is parceled out to thousands of jurisdictions with different legislative, executive, judicial branches, many with rival views of what the applicable law means. A final irony is that those who wish to evade the law’s sanctions are encouraged to engage the services of highly paid, state-licensed experts charged with an ethical duty to assist them.
I find the “herding coyotes” metaphor very sobering. And it’s true the American legal system is dysfunctional on many fronts, not the least of which is access. Most Americans cannot afford to pay the legal fees that give them meaningful access to the system. Still I think humility is a better response than shame to the realization that our legal system is not an ideal one. By the very nature of its task, law will always fail to some extent. It is better discussed in relative terms like “better” and “worse.”
There are many things for law and lawyers to be proud of. Trial by by jury seems a big improvement over trial by ordeal. Law is the primary way we manage to institutionalize ethical principles into public life. All the ingredients of due process like an impartial judge, the right to cross-examine our accusers, the right to appeal judgments to a a higher tribunal are not only ethical principles made concrete, but also great improvements on what came before. And law has also evolved to protect other ethical principles like freedom of expression, equal protection, and privacy. These are cultural achievements of the first order.
Indirectly, Coyote America supports my thesis. Flores retells the story of how for most of the 20th Century the U.S. government waged a war on predators, including wolves and coyotes. It pretty much eradicated the wolf population, but was never able to subdue the wily coyote, although killing hundreds of thousands of them in the attempt. But in the 1960’s and 1970’s the law intervened to protect animal rights. The crowning achievement was the Endangered Species Act which curtailed the government’s program to infect coyote habitat with sophisticated new poisons. The coyote population and range continues to grow in America today partly because of legal protections, but mostly due to the same superior intelligence and adaptability we see reflected in the Native American tales.
I like this story for more than one reason. First, it supports my claim that law often embodies ethical principles. Here it was “animals have rights too.” We should be proud that law and lawyers turn pretty ideas into enforceable norms.
But I also admit taking some guilty pleasure in noting that the primary weapons in the government’s arsenal against the coyote were deadly poisons concocted by scientists. This fact not only helps cure my inferiority complex about science, but transforms it into a sense of empathy. I realize now that while scientists may inhabit an environment of pure rationality in the laboratory, when it comes to decisions about what products to produce and who to direct them at, they live in the same “coyote” world as the rest of us.