Introduction
 
 

       "The first thing we do, let’s kill all the lawyers." 
 

      Why do Americans hate lawyers?

      The United States, our legal elites tell us, is a republic of laws, not men, a place where the “rule of law,” from the Founding to the Clinton Impeachment, has had immense rhetorical import.  And yet, the second half of the previous century witnessed an explosion in popular anti-lawyer sentiment, as reflected in public opinion polls, pop culture, and lay condemnations of the “litigation explosion.”  The end of the century also witnessed a profound expression of anti-law sentiment, notably in the Clinton impeachment, but also in widespread popular and legal reactions against bureaucratic beltway rules, runaway lawsuits, and political correctness.  Is this new bloom of anti-lawyer and anti-law animus -- a phenomenon which is at least as old as Plato -- simply a response to O.J., O.S.H.A., and lawsuits over coffee?

      A close analysis of what anti-lawyer memes say, and how they say it, strongly suggests otherwise.  With respect both to the law -- which in the late 20th century was seen as obstructing honesty rather than promoting it, obfuscating rather than revealing -- and with respect to lawyers, increasingly seen as parasitic, dishonest usurers, anti-lawyer narrative reveals a coherent narrative of inhumanity, an ideology: antilawyerism, if you will.  Rather than a random set of complaints against lawyers, antilawyerism, read carefully, encompasses a set of assumptions and ideologies about what makes humans human, and what makes law inhuman.  The law, this ideology says undermines in its technicality and literality that which is most human about each of us: our souls.  And lawyers have no souls because they are creatures of the law.

      As the title of this book suggests, the imbrication of law and inhumanity is not a novel development in Western thought -- it is not about O.J.  On the contrary, this study suggests that American antilawyerism is animated by the same concerns, and manifests itself in strikingly similar rhetorical forms, as classical European antisemitism.  While there are many good reasons not to like lawyers and the legal system, the way in which they are disliked in America is striking.  The American lawyer who diminishes productivity, cruelly ignores virtue, and cunningly dupes the innocent by means of counterintuitive “technicalities” is, in a word, Shylock.  As discussed in close detail in chapter one, the lawyer is a Jewish doppleganger: the lawyer, like Shylock -- who I read both as a moneylender and, in his trial scene, as a consummately Pharisaic lawyer -- corrodes society by means of parasitic law and hyper-literalizing, cruel demands on justice (the ‘pound of flesh’).  Dan Quayle’s and other popular jeremiads against trial lawyers -- which, as demonstrated in chapter one, lack a factual basis and radically distort the actual roles of lawyers in American cultural and economic life -- are not dissimilar from late 19th century jeremiads against Jewish bankers.  Al Pacino’s portrayal of the lawyer-as-devil echoes Shylock’s stage history.  And time and time again, the traits of lawyers most disliked in public opinion polls track those of antisemitism: greed, dishonesty, tricks of cunning and language.

      And yet: the rhetorical similarity between antilawyerism and antisemitism cannot be explained as “just” antisemitism.  It is directed against all lawyers, not just Jewish lawyers; it mirrors critiques of law and lawyers that predated Jews’ entry into the American bar; and it is absent in other disproportionately Jewish professions.  More importantly, antilawyerism is not a matter of irrational prejudice; it would be very odd indeed to impute some sort of unconscious antisemitism to the millions of Americans who hold “common-sense” negative opinions of lawyers.  So let us be clear: people who hate lawyers are not antisemites.  Antilawyerism and antisemitism are ideologies -- closely related ones, I argue, but the moral evil of one does not cast a shadow on the other.

      Moreover, animus against lawyers is only half the story.  As discussed in chapter two, the most politically significant trial of the 1990s -- the Clinton impeachment -- showed that a large circle of American legislators (at least) hold radically antinomian opinions about the status of the written law and its (in)ability to ascertain true guilt or innocence.  Members of Congress on both sides of the aisle repeatedly distinguished between the legal niceties of the perjury charges against the president and the true issues of guilt, forgiveness, and absolution that were supposedly in play  -- and, at least on one side of the debate, repeatedly denigrated efforts to substitute legalism and tit-for-tat jurisprudence for the more important values which make America, in the words of one Representative, “a Christian nation.”

      This spate of quasi-antinomianism, or more precisely, anti-logo-nomianism,  was not an isolated quirk of Impeachment Partisan politics.  On the contrary, Chapter two finds echoes of it in American legal consciousness as distant as the adoption of the common law by the colonies and post-revolutionary states, and beyond that in the institution of the jury; the structure of equity courts in the English model; even as remote as the use of ordeals and torture in the medieval period to ascertain guilt or innocence without recourse to manmade rules.  It is present in theologized renditions of natural law, which locate the transcendent meaning of law in the generalities deduced human conscience and reason, and in theologized renditions of equity.  More familiarly, it finds home in critiques of technicalities and political correctness codes; valorizations of juries judging according to their ‘common sense,’ and judges knowing something when they see it; anti-legal rhetorical moves such as “zero tolerance” policies instead of byzantine rules; and numerous other popular-legal rhetorical moves.  At heart, it is a suspicion that the written, legalistic law can ever hope to capture what it is that renders humans truly innocent or truly guilty.

      This book identifies the root of both anti-logo-nomianism and antilawyerism in the dominant ideology of Western civilization: Pauline Christianity, and its rigorously dualist ontology.  “True innocence” and “true guilt” are fundamentally theological notions, not jurisprudential ones; they transcend the boundaries of the law and legal system and implicate more fundamental suppositions about what it is to be guilty -- or saved.  What defines true innocence and guilt, then, must be located in that which is essential about the human.  And for Paul, what makes us most human is not our fleshly bodies obeying written laws but the soul obeying the stirring of the spirit, because for Paul -- as for many of us, I think -- the truth of the human being resides in its immortal spirit, the value of an ethical act inheres in whether it springs from a noble or base heart.  Paul, like most of us, was concerned that the “letter of the law” undermined that which is most human, that the ‘letter of the law’ regulated only the shell of the human being – the body, while ignoring what is our essence: our soul.  

      Paul’s innovation, universalizing Judaic monotheism by transplanting its locus of salvation from the “carnal,” tribal body to the saving spirit of Christ, harnessed Jewish ethics and soteriology to a Platonic dualistic ontology -- and in so doing, consigned the body to the grave.  Above all, Paul drew a radical, and long-lasting, distinction between what he saw as the "killing letter" of the law, embodied in the nomos of the Hebrew Bible, and the "life giving Spirit" of the law, which was embodied (literally... but also spiritually) in Christ.   The body, regulated by nomos, is at times a distraction, at times a cage, but at no time is it ever a site for redemption.  Literal, written law, insofar as it is detached from conscience and the spirit, is thus at best irrelevant, at worst a temptation to mechanism, error and sin.

      Perhaps it is difficult for us even to imagine the world being otherwise.  Yet, contrary to those who would ascribe Pauline and Augustinian anti-Judaism to error and prejudice, much of the embryonic Talmudic Judaism of his time did indeed believe that the body was the site of religious value, and that material observance of ‘the letter of the law’ was the seal of the Divine Covenant.  Certainly, Paul exaggerated the literalness of Pharisaic Judaism for polemic purposes.   But let us remember that the soul is a historical construct, a concept invented by human beings to explain the operation of the workings of the brain, and that it is consequently possible to imagine ourselves otherwise.  Indeed, I argue in chapter three that, for much of Talmudic Judaism -- a fortiori for Biblical, pre-Hellenistic Judaism -- salvation lies in the conforming of material bodies to material laws (circumcision of the flesh, ritual and dietary laws, a quasi-racial community of practitioners).  And yet so thorough has the displacement of these norms with their ‘spiritual counterparts’ (circumcision of the heart, moral laws, a trans-national community of believers) penetrated our consciousness that is difficult even to conceive of an alternative.

      Pauline dualism is absolutely fundamental to Christian religious doctrine and jurisprudence.  It informs Aquinas’ and later conceptions of the Natural Law, a sort of law-without-law deducible from general principles known to the soul (or conscience, or Reason), which in turn informs English and American conceptions of what law is meant to be, at least until the 19th century.  It animates much of Luther’s theological critique of the Catholic church, and much of his antisemitism as well.  And, insofar as it enjoys pride of place in the New Testament, Paul’s ontological and ethical system remains a continually-renewed source of teaching throughout the Christian world.
 
      In addition to shaping our fundamental assumptions of what law is, and what it can do, Paul’s theology may also be read as informing certain memes of what Gavin Langmuir has helpfully labeled “chimerical” antisemitism.  For Langmuir and others, antisemitism may defined as much in terms of what it is not as in terms of what it is: namely, antisemitism is neither a continuation of theological anti-Judaism (the sort of writing we find in Paul, Augustine, and others) nor a response to actual characteristics about Jews.  Neither can we simply define antisemitism as any hatred against Jewish people, for this general definition obscures important differences in why people say they hate Jews, why some of the myths and features of antisemitism developed as they did, and why antisemitism differs across historical and cultural contexts.  Rather, if we look closely at the forms of European antisemitism that endured for much of the medieval and modern period, we find a consistent set of stories -- mostly originating around the 13th century -- of Jews being cruel, inhuman, monstrous, and a threat to gentile society: blood libels, accusations of host defilement and ritual cannibalism, myths of fantastic wealth and power (particularly amplified in the 19th and 20th centuries).

      Now, at this point in the argument, it might be possible to draw an inference.  Namely, since something that closely resembles antisemitism (namely, antilawyer stereotypes) coincides with something that closely resembles anti-Judaism (namely, anti-logo-nomianism) both in the Jewish context and in the context of the American law, we might infer that the two phenomena are connected in some way.  Moreover, there appears to be on the theoretical level a conceptual connection: the Clinton impeachers (and complaints about counterintuitive law, and Dan Quayle, etc.) tell us that people who adhere to the fleshly, literal law are denying their soul’s chance at grace and salvation.  The popular caricature of the lawyer tells us that these very same people are disrupting our society’s chance at salvation.  Lawyers may now bear the burden of America’s own ambivalence regarding its traffic in the agora, but the grammar of the displacement seems as old as our calendars.  The law -- whether Pharisaic or politically correct -- is anti-spirit and anti-human, but it is anti-human in the context of a particular ideology with particular commitments to dualist notions of the self.

      In chapter four, I would like to do better than this quasi-structuralist inference.  In particular, I want to claim that much of chimerical antisemitism is more closely linked to theological anti-Judaism than has previously been supposed -- that Shylock the usurer-Jew and Shylock the Pharisaic legalist are not an accidental coincidence.  I want to suggest that the mechanizing, dehumanizing power of the law -- which animates early theological anti-Judaism -- bears a close conceptual and historical relation to the mechanizing, dehumanizing power of the Jew, which becomes a topos primarily in medieval antisemitism.  So too are some of the myths of chimerical antisemitism closely related to the hermeneutical errors Jews had long been accused of making in their reading of scriptural law.  Stories of ritual cannibalism, for example, have the Jews replaying the same materialist, literalist error they made in rejecting Christ: instead of eating the spiritual human, they eat the fleshly human; instead of communing with the Divine, they commune with flesh.

      Further, I argue in chapter four, drawing on Marc Shell’s and other scholars’ readings of the economy of blood and money, that Shylock’s usury is the carnality of the Jew written on the body politic.  Shylock’s economic destructiveness and his anti-human materialism are of a piece: he is, as Jews have long been seen, a sucker of blood, in both the personal and economic-political arenas.  Shylock’s usury and his view of law dehumanize, commoditize -- he anticipates the ‘International Jew’ of Henry Ford, the ‘hucksterer’ of Karl Marx, the ‘Richard Rubin’ of Pat Buchanan.  The Jew has no soul; and his society mechanizes as well.  In populism, in Marx, in populist antilawyer narratives, the “Other,” whether he be Jewish banker or lawyer, undermines the manly unity between worker and work-product, even as mercantile commerce and high capitalism are utterly dependent on bankers (and lawyers as well).  Recall, the merchant of Venice is not Shylock, but Antonio.
  
      Let me put it more sharply still: The Protocols of the Elders of Zion and the Book of Romans are not accidental bedfellows.  Romans (and Galatians, and Luther, and Augustine) tells us that people who adhere to the fleshly law are denying their soul’s chance at salvation.  The Protocols (and populism, and Marx) tell us that these very same people are disrupting our society’s chance at salvation through their greed and inhumanity.  In other words, I view the discourse of theological anti-Judaism -- which so closely tracks the quasi-antinomianism of some American popular thinking about law -- and the discourse of antisemitism, which so closely resembles American antilawyerism, as two branches of the same phenomenon.  Just as antilawyerism and antinomianism are two sides of a coin, so too are antisemitism and anti-Judaism.  It is, again, all about the soul and its enemies; it is a constructed social discourse of the body, the spirit, and the law.

      Thus the ease with which “the law,” with all that term’s indefiniteness and imprecision, has supplanted “Judaism” as the bearer of this projected anxiety of materialism and mechanism, owes itself to the incipient antisemitism of Western antinomianism itself.  We have never liked law.  And at the turn of the 21st century, we are surrounded by bureaucrats, O.J., labor laws and harassment laws, P.C. codes and tort suits, lawyers on television, warning labels on coffee -- law is everywhere, to an extent not previously imagined in American history.  The creeping mechanism of the law, already present and feared the Founding, has passed our doorstep and overrun our homes, or is at least perceived that way.  Shylock is on television, at work, and at home, poised with scales -- of the market’s commodification of flesh and the mechanical exactitude of the law -- in one hand, knife in the other.

      For all the complexity and subtlety of the story I am trying to tell, it is at bottom a concern about very familiar, fundamental problems: the body’s end at death, the soul’s loss of innocence.  And in the final two chapters of this book I try to engage with the meaning of some of those problems as refracted through the lens of antilawyerism/antisemitism.  

      First, in chapter five, the concept of ‘antisemitism’ itself is challenged and rethought.  As should be clear from the material already presented, the antisemitism of this book is a rather different animal from antisemitism as sometimes supposed in popular writings.  First and foremost, I have excluded what Hannah Arendt labeled as “racial antisemitism” from our consideration.  Racial antisemitism, which in its modern form originated in Germany in the middle of the 19th century, is a particularly European, nationalistic form of race pseudo-science (although it has demonstrated considerable resilience in non-European cultures such as Japan and Egypt) which holds that Jews are of a different race than Europeans, and an inferior one at that.  Although there are plenty of utterances here and there about how lawyers are “snakes” or “weasels” or something less than human, such remarks are hardly the vitriol of Wilhelm Marr or Hitler.  Nor do they conform to the overall theoretical matrix of racial antisemitism.  So, notwithstanding the interpenetration of racial, economic, and religious antisemitism in some antisemites themselves (Hitler not the least), I have not attempted to include this narrative in the present study.

      Second, it should be clear already that antisemitism for our purposes is an ideology, not an animus.  Of course, antisemites hate Jews; but antisemitism as I understand it refers to the stories antisemites tell, the beliefs they hold, the practices they perform.  As such, we can speak of antisemitism without Jews -- hence, antilawyerism -- and antisemitism as having an intellectual history, and antisemitism as an ideological choice without a necessarily evil valence.  Once again, these distinctions matter little to either the antisemite or the victim, but to the scholar, drawing such lines can enable fruitful analysis, even as we recognize that all such lines are shifting and unstable.

      Third, it should also hopefully be clear that my account of antilawyerism is not that people dislike lawyers in an antisemitic way because there are so many Jewish lawyers.  Indeed, in chapter five I will spend a fair amount of time refuting this view, with evidence of American antilawyerism that predates Jews in the bar, and with counterexamples from other professions with disproportionally Jewish representation (medicine, for example) but without an antisemitic phenomenon.  Antilawyerism as I see it is fundamentally about the law, not about Jewish people.

      Having concluded these remarks about antisemitism, chapter six asks where we are left by the notion that our ideas about law and personhood itself are theologized and tinted with a Pauline lens.  Are we condemned by our embrace of the idea of the soul to forever spout antilawyerist/antisemitic vitriol?  Of course, we are not.  That we might question some of that ideology’s preconceptions is the topic of the final chapter of this book, which explores some of the potentially democratic energies within the ‘arid legalism’ we might too easily dismiss, and some of the potential pitfalls in calling for a reinvention of actual lawyering based on popular myths of what a lawyer is.  

      First, with respect to the law, I want to suggest that rather than viewing the letter of the law as some kind of blown fuse in the circuit of sin, confession, and grace, we might see it as a site for negotiation in a multicultural democracy.  Engaging with the jurisprudential ethos of “I know it when I see it,” I argue that, in a culture where the very notion of the human subject is unstable and contentious, the “I”s of Justice Stewart’s famous phrase conceal more than they reveal, and offer no hope of reconciling with an “I” which may see differently, if you please.  Of course, subjectivity is an inextricable part of judging, and must be; but, to borrow the reference from Paul Gewirtz, the furies under Athens at the end of the Oresteia must articulate their judgments in a shared, written language (even if only aspirationally) for the rule of law to have communicative content and democratic possibility.

      Second, with respect to lawyers, I want to question recent iterations of the notion of “character,” both as historically suspect and as philosophically incoherent.  Engaging primarily with Yale Law School Dean Anthony Kronman’s penetrating work The Lost Lawyer, the final pages of this book suggest that Shylock’s inhumanity is more properly a form of heteronomy, which locates the ground of the good outside the confident ego of the modern subject.  Of course, Shylock is a villain.  But his villainy can and ought to be patrolled by external law, rather than schizoid internalizations of the nomos which call upon a supposedly universal conscience -- a construct which, like the “I”s of a Supreme Court justice, may exclude more than it invites.  The letter of the law, with its implications for the character of the human subject, need not be a degrading engine of mechanization and alienation.  It can be like the skywriting in Virginia Woolf’s novel Mrs. Dalloway, which briefly -- all too briefly -- unites the diverse subjectivities of 1923 London not in an illusory bond of shared human sentiment, but in a momentary, aspirational gaze.

       In the end, however, antilawyerism, like antisemitism, is less a product of philosophical reflection than of a set of attitudes and predispositions that are “taken for granted.”  This is what makes it so satisfying.  That antilawyerism, and American antinomianism, seems so natural to us, and yet at the same time is so clearly conditioned by a particular religious narrative, suggests that Paul was, in one sense, right: that how we conceive of the law, in its regulation of ourselves, is dependent on how we conceive of ourselves as human beings.  Antilawyerism and antisemitism have a common root, and that root is our culture’s most basic notions of what it means to be a human being: a spirit, a soul.   Paul set the terms of this debate by marrying Athens’ dualism to Jerusalem’s theology. We have spoken his language ever since.