Mar 30, 1998, Vol. 3, No. 28 • By JEREMY RABKIN
Because they see the system up close, lawyers do understand, at some level, that much of what they do and say is part of an act. And some of the most timely passages in Campos's little polemic deal with the strangely disorienting effect of such role-playing. In reality, "American courts are now gigantic bureaucracies, processing more than thirty-million lawsuits per year, with all the attendant evils that mark enormous, anonymous government institutions." But from the "breathless analysis" of the latest trial on talk- show television to the "equally starry-eyed reportage of the latest joint plurality opinion of the Supreme Court" in the New York Times, we nurture a "remarkable romanticism that surrounds the cultural ideal of law."
Law and lawyering have taken over more and more cultural authority, displacing religion, tradition, and common sense. And Campos worries that as a result "the habits of the legal mind and the structure of legal argument" have become the dominant tone of public discussion. This has real costs: " Lawyers are often impelled by their professional obligations to become something akin to emotional prostitutes; that is, to be persons whose public personae require the simulation of inauthentic affective states as a condition of their compensation. . . . A lawyer trying a case must always be ready to express what seems like genuine outrage at the drop of the proverbial hat." This style of presentation has now infected political debate, dominated by "emotional pyrotechnics from amateur litigators." Yet "those who imitate the professional personae of lawyers are usually unaware that lawyers are almost always faking it." Or maybe -- as Campos suggests about the talking heads who appear on such television debate programs as Crossfire -- they know it all too well and cheerfully take up the game, as "the simulation of outrage has become a seemingly permanent part of the broader political culture."
Campos himself seems determined to step back from feigned outrage. But his usual way of doing so is to switch from lawyerly fulmination to professorial vaporing. He rattles on for pages and pages about the cultural crises feeding the legal crisis: "Secular materialist rationalism has become the unofficial religion of the American cultural and political elites" and with this " contemporary collapse . . . of both traditionally religious and overtly political forms of metaphysical belief, our law tends more and more to become both the patriotism of the deracinated and the de facto faith of the apostate. " Jurismania is a book that has no time for Blackstone or the Federalist Papers but does manage to draw into its exposition James Joyce, Franz Kafka, and Michel Foucault -- to say nothing of Friedrich Nietzsche, who appears eleven times in fewer than two-hundred pages.
There may be a serious point here, but Campos can't quite bring himself to be serious about it. If the hypertrophy of the legal system is fed by the atrophy of traditional beliefs, then why doesn't Western Europe experience more of these legal symptoms than the United States? And if the ultimate problem is loss of faith, then shouldn't we be preaching the return of religion rather than the reform of legal procedure? These obvious questions are never even broached in Jurismania. Rather than stare into the abyss of modernity and experience the abyss staring back at him, Campos retreats into irony. Near the end, he refers to his own book as "this wordy and useless polemic." Still later he confesses the futility of his own undertaking: "To believe the rationalist illusion can be swept aside by reasoned argument is itself a rationalist illusion."
But postmodern irony has its limits, too. Jurismania describes the phenomenon very well: "Sophisticated legal academics prefer to affect a jaded, world-weary cynicism." But "let the Supreme Court touch on the scholar's ideological bete noire, or the local zoning board threaten to put a McDonald's across the street from his house, and all that postmodern ennui in the face of . . . essentially meaningless language games goes right out the window. . . . Professor X, who on most days sounds like a cross between a Chicago Alderman and Michel Foucault, is transmogrified into a hybrid of Perry Mason and Christopher Columbus Langdell [dean of Harvard Law School in the late nineteenth century] and duly unleashes a torrent of sanctimonious formalism in the service of his rediscovered ethical zeal."