Monday, December 19, 2011

Just Another One of Those Lawyers

 Those Lawyers

The Woman Is a Lawyer, but Not an Elder!

What do you call a thousand lawyers at the bottom the Atlantic Ocean? A start. No, just kidding.

Some of my best friends are lawyers. I enjoy their company very much. I have a son, whom I greatly love and highly respect who is lawyer of integrity and skill.

I might even have been a lawyer. Back in the old days, when a young man in college was considering a call to the ministry, it was not uncommon for him to come under care of Presbytery. My pastor encouraged me in that direction, so I began the process. In the PCUS in those days one part of the process was to go to one of Presbyterian Guidance Centers to undergo vocational and psychological testing. When all my testing was complete and  the psychologist met with me to go over the results, his counsel to me was to go into law. He predicted that I would be an above average law student but a below average divinity student. Who knows what might have been had I taken that fork in the road.

One of the things we Americans take granted is the place lawyers have not only in the realm of law but in that of politics. In his A History of the American People Paul Johnson makes this observation about the founding of the American Republic: George Washington believed that there were very few who would “act upon the principles of Disinterestedness” and accepted this as a reality among those who would govern. Hamilton agreed, yet held that “there was a class in society who, as a ‘learned profession,’ were disinterested – the lawyers.” These “formed ruling elite and ought to form the bedrock of public life.” (Beside these lines I put as I read I put both exclamation and question marks.) Johnson concludes: “Though America’s ruling elite, insofar as it still existed in the 1780s, intended for the new constitution to provide rule by gentlemen, what it did in fact produce was rule by lawyers…”

Since then, the dominance of lawyers has increased markedly. Not only are lawyers dominant among legislators. The branch of government which is their natural sphere, the courts, have on the whole through American history increased their power vis a vis both the legislature and the executive.

 At the same time the legal profession has grown in relation to both the population and the other professions. According to Johnson, between 1900 and 1970 the percentage of lawyers remained constant at 1.3 per thousand compared to doctors at1.8. However, despite the growth of the healthcare industry, by 1970 lawyers passed doctors as a percentage because of the faster growing demand for legal services. By the year 1990 lawyers were 3.0 per thousand. Between 1960 and 1980 population grew by 30% while the number of lawyers grew by 130%.

Given these realities, it should be expected that lawyers would have a powerful influence not only in the legislative and judicial branches of government, but also in other parts of society, including the church. I have a developing thought regarding the influence of the lawyers on the church. 

It rises from what I believe is the nature of the lawyer’s profession. What are the goals of lawyers? To my observation, they are (1) to win, (2) to protect, and (3) to settle.

Lawyers want to win. Consider criminal law. Both prosecutors and defense lawyers are bound by ethical and procedural rules, but both seek to do everything they can within those rules to win. The prosecutor believes the defendant guilty or very likely so, and his goal is to make such arguments as he believes will result in conviction. The defense lawyer may or may not believe his client innocent, but his job is to represent the client, and he, too, will make such arguments as are most likely to produce a verdict of not guilty.

Lawyers want to protect. The profession plays not only offense but defense. In fact defense may be the dominant concern of the lawyer. They see dangers, liabilities, vulnerabilities, and they do as much as possible to protect their clients’ interests. They try to put up all the walls they can to ward off possible attacks. The goal is to do whatever can be done that passes legal muster to attain the client’s safety from threats others may pose. This is often done preemptively in anticipation of, not necessarily the presence of, danger.

Lawyers want to settle. Lawyers have different risk tolerances, but, when a lawyer is in doubt about winning outright or protecting absolutely, he will try to settle. The nature of settling is to get the best cut you can on the split of the difference. In otherwise, in order to get as much as possible, or to protect as much as possible, a lawyer will seek compromise.

Now what does this have to do with churches, particularly with regard to Presbyterians and their courts, local, regional, and national? The potentially deleterious effect in my opinion rises from the reality that that it is not in the lawyers’ training and practice, and often not in his temperament or instincts to seek truth and right in an absolute, transcendent sense. That is not a criticism. It is not pejorative. It simply is. For the most part, in my view, the lawyer is not even aware of his distinctive approach. But it is important to be aware of and to take into account this reality

In matters of doctrine and morality the church’s job is to find, declare, and uphold what is the truth and righteousness according to God’s Word. This requires honest, forthright, discussion and debate. It is harmed by the use of arguments which, apart from their validity, are offered in order to win. When the church functions as a court, unlike the secular courts, its job is to seek truth and right, not for parties to win victories.

In matters of church life, the church’s job is to seek a community where the people are guided by the Bible’s teaching on Christian relationships first, not first by legal concerns. What does the church do with, for instance, “rather suffer yourselves to be defrauded.” Paul’s instruction to the Corinthian church is not the kind of hyperbole Jesus intentionally and knowing uses in the Sermon on the Mount (e.g. “Swear not at all”). A lawyer can understand such graces as forbearance in terms of settling without conflict, but it is hard for him to get his mind around a Christian’s allowing himself to be defrauded when there are legal solutions at hand.

I am fascinated by the legal profession and by lawyers. Most of them are honorable men who work hard. But I worry about the fact that it seems so hard for lawyers not be to lawyers. It is very hard I think for an elder who is a lawyer to think like an elder and not like a lawyer when doing the unique business of God in the church.

Years ago I heard the story of a retired minister who said to a younger minister regarding a person prominent and powerful in community and church, “He’s just another one of those lawyers.” Yes, but there are so many them.


mozart said...

Oh, man, do I resent this so much. I'm a lawyer and a ruling elder in our PCA church. You've managed to stomp on my toes all over in this post. It does seem, though, that some of this issue is being played out in our Presbyteries, though, doesn't it--think, the FV?

Don Frank said...

Mozart, could you elaborate on your thought concerning FV?

mozart said...


I was thinking of the specific situation in the NW Presbytery I have been following on Pastor Jason Stellman's blog. Second-hand info, to be sure, but it seems from the play-out on the Leithart proceedings that some of us lawyers are overly-fond of "winning" via legal maneuvering rather than confessional orthodoxy. My take, though, and I can be all wet, as my wife frequently tells me. The Curmudgeon's post here gets played out on all sorts of different levels, though; think, the Christian Right and Jay Sekulow.

Don Frank said...

Thanks, Mozart.