Who is to blame?

Here is an allegory.

You own a Mercedes S400.  You ask your driver to get you from Kuala Lumpur to Ipoh.  Exhausted, you fall asleep. You rise three hours later and realise you are in Johor Bahru.

Can you fault German technology?

Who is to be blamed? The car, the driver or you?

What is the problem?

You might say, the driver should have been properly trained; that he should have had ‘the sense’ to get you to the right destination.

This is exactly the complaint jurists have about law students and young lawyers. Senior lawyers complain that ‘They need to be trained to get to the right destination.’

What might that be?

Three things missing in Legal Training

Jurists and law teachers speak of three virtues that are missing from today’s professional training:-

(1) honesty,

(2) integrity and

(3) compassion.¹Speech by Dato Mahadev Shanker, former Judge of the Court of Appeal, Malaysia during ‘International Conference on Future of Law and Legal Practice’, 15-16 October 2019, Organised by the Law Department, Taylor’s University  [So what is the difference between these three qualities? Plenty!]

This lack, say the jurists, results in a single quality:

Greed.

Greed for money, for power, for fame, and royal titles.

‘If we do not rectify this’, says the old guard, ‘legal professionals will not manifest, in their lives, the desired outcome of all their training: justice’.

The three philosophies

In the last few centuries, all the laws that ruled us were the choicest fruits of three civilisations.

In the last 300 years, the Asian Commonwealth was long illumined by the brightest lights of Western philosophy.

Take John Stuart Mill, for a start. He said,

‘The struggle between liberty and authority is the most conspicuous feature in the portions of history …, particularly in that of Greece, Rome, and England. But in all times this contest was between subjects,… and the government.’

‘By Liberty was meant protection against the tyranny of the political rulers.’² John Stuart Mill, On Liberty, 1859

Western Legal philosophy – in a word

In Western philosophy, the lawyer is interposed between the State, the entity that exercised power over Society – and Society itself, composed of individuals.

“While Society was expected to submit to the State’s authority, such obedience could not oppress individual liberties.

It was the duty of the lawyer to protect the one from the other.

Asian Philosophies

Commonwealth Asian lawyers absorbed western values against a backdrop of conflicting Asian philosophy.

Depending on which ethnic group one belonged to, one was either influenced by Chinese or Indian philosophy.

The New Colonialists

For the next few decades,  two superpowers will – if they have not already done so – seek to colonise all of Asia: China and India.

They will colonise us with their goods, their services, their technocracy, and their ideas.

Chinese Legal Philosophy

Chinese philosophy is at least 3,000 years old.  Congjie, a scholar, says–³Liang Congjie, and formally senior editor of the ‘Encyclopaedia of China’ and the editor-in-chief of the ‘Chinese intellectuals’ a prominent Beijing quarterly

“Chinese civilization … has always harboured a deep reverence for education, both as an intellectual ideal, and a sign of cultural refinement.

‘The Confucian approach to education dominated the intellectual landscape of imperial China.’ ⁴Congjie, ‘The Great Thoughts of China: 3000 years of wisdom that shaped a civilisation’, (1996) John Wiley & Sons Inc., p. 55

But that approach did not enjoy a monopoly.

‘Buddhists and Taoists devised techniques designed to help the pupil ‘grasp the ultimate nature of all reality’.⁵Ibid

Five hundred years before the Christian era, the scholar Congjie quotes Confucius as complaining:

“In the old days, men studied for the sake of self-improvement. Nowadays men study to impress people.

This deprecation of self-pride is particular to Asian tradition.

The Chinese version of Justice

What does China think of the balance between the authority of the State, and an individual right to be free of the shackles of oppressive laws?

The idea of justice in China has ever been grounded on the concept of deterrence:

‘Make a public example of those who transgress laws; where sincere demonstrations of contrition and repentance are shown, exercise compassion’.⁶‘The Great Thoughts of China: 3000 years of wisdom that shaped a civilization’; p.113

This belief survives to this day in China.  Chinese enforcement officers speak of, ‘Killing the chicken to scare the monkey’.  They impress upon their subjects the State’s attitude of:

“Leniency to those who confess, and punishment for those who resist.’

Chinese judicial philosophy thus subordinates individual rights and the rights of accused persons – to the larger goal of preserving social welfare and State authority.⁷Ibid

Mozi’s question

Mozi was a Chinese scholar who lived 500 years before Christianity. He cites an example.

‘[Suppose the country is being oppressed by a tyrant. A sage rises and leads a successful rebellion].

‘Having won the field, if he were to conform to the doctrine of the Confucians, and if he were to say his troops:

“Fugitives are not to be pursued; an enemy who has lost his hat is not to be shot at; if a chariot is overturned, you are to help the occupants to right it.”

‘If this is done, the violent and disorderly will escape… and the world will not be rid of these pests. These are people who had carried out wholesale massacres of men and women.’

“There could be no greater injustice than that they should be allowed to escape’.

How does Mozi’s philosophy fit in with your sense of right and wrong?

The Great Wall of China

The massive Wall served not only to keep outsiders out, but Chinese citizens in.

The Wall has made little difference in the last two decades, whether as a physical barrier or as a barricade to ‘foreign thought’.

‘Centuries of exposure to public executions, bodily mutations, and harsh imprisonment’– complain Liberal Chinese thinkers – ‘have de-sensitised China’s population.  It has become a regular part of public life in China.  Any revulsion that such spectacles might produce no longer seems to have the deterrent effect’.⁸Congjie, Ibid

Eventually, the expanding Chinese economy will confront Western legal philosophy.

“We see – this minute – the direct confrontation between old Chinese philosophy and the new Chinese desire for freedom – in Hong Kong.

This is the kind of conflict that a lawyer ever faces

In the pursuit of his profession, every lawyer will be forced to make ethical decisions.

Suppose a man is accused of killing his wife. You examine the facts.

Perhaps he had caught her with a neighbour.

Or he may have ingested drugs that alter his perception of reality.

He may have thought that he was defending himself against an attack of a frightful mythical creature – not knowing it was his wife – and had killed her.

Each scenario is not only a defence, but a test of a lawyer’s ethical limit.

Take another example: a client deposits US 50 million in a corporate lawyer’s account. What is to stop him from stealing it and escaping to another country?

Nothing really – save his conscience, which could be the product of his legal training – or his upbringing.

Wickedness is a free malware

The need to steal, to cheat, to cut corners, recognises neither race nor religion. It spares neither man nor woman. Age is irrelevant.

“Wickedness exists everywhere.

Anyone can access it.

First things first – Core Values

Some things come first in legal training. Lawyers need to be trained to hold a universally acknowledged set of core beliefs.

So the first thing a lawyer has to be taught is that his professional conduct ought to bring about justice.

Honesty and integrity are difficult virtues.

Suppose you are a judge.

Your impoverished relative comes before you, accused of stealing a bottle of milk to feed his baby.

Would you set him free?

A lady once stole such a bottle of milk. The court sent her to prison for 8 weeks.

Recently, a young man sexually molested a lady.  They were in public transport.  The court bound him over.

How does that make you feel?

It creates an internal conflict; it tests your ethical values.

Finding the answer is your battle.

The Second Lesson: which is more evil?

Who should get greater punishment: a man who had raped a 75-year-old lady; or another who had done the same to a 2-year-old child?

These questions are real examples.

In these examples, any notion of measuring, or meting out a just sentence becomes impossible. Law and the philosophy behind it, break down.

“The law, in itself, does not hold all the answers.

It has only awkward questions. 

That is the second lesson.

One day you will confront these difficult questions: whether as defence counsel, prosecutor, or judge.

Such circumstances will burden you with further questions:

(1) What are your core values?

(2) What will impel you to act one way or the other?

That ends the discussion on Western and Chinese philosophy.  It is time to look to some Indian philosophy.

Justice in Ancient India

The Tamil language is the oldest living language in the world. From it, Sanskrit borrowed certain concepts and words.

One of the first loans was the concept of divine justice.

It was not justice according to man-made law: that was called ‘Nyaya’.  And it was confined to this world.  And, mostly, it concerned only humans.

Beyond Nyaya was a greater justice.  It is not easy to explain.

It is a set of divine laws.

These held all the elements of the universe – animate and inanimate, living and dead, existence and non-existence – in a delicate balance.

He who altered the Divine Balance would reap either reward or punishment, in all of his lives, in all the worlds.

It came to be called ‘Dharma’.

Dharma impels a man to live ‘the right way’.

To live a life of virtue, one was required to strive in this life, while keeping mind, body and soul focused on the hereafter – but always within the laws of Dharma.

It is the Ultimate Destination.

We began with the example of a car reaching the right destination – then linked it to ethical standards. We now end it with a story that demonstrates another destination.

Mahabharatha

Mahabharatha is one of India’s many epics.

Written about 2,500 years ago by the sage Vyasa, it contains 100,000 verses.

These are all stories within stories.

But always, the conduct of the characters centre around the concept of divine justice, Dharma.

A tiny part of it bears study.

Here is the story. It concerns a prince.

Let us see what we may garner from its nucleonic depths.

Arjuna’s test

A group of archery students are in training. Their teacher is the Grand Master, Drona.

He is the finest archer in all the land. He has no equal.

Drona’s pupils are all of royal descent. Having completed advanced training, the master wishes to separate the wheat from the chaff.

So Drona lays a final test.

He calls his royal charges, and describes, with his hand, an arc before him.

‘There are targets’, says he, ‘before you’.

‘Each of you is to advance, identify, and strike it.’

But Drona says not a word about what the targets are.

Drona’s Question

As each prince advances, Drona asks an ambiguous question —

‘What do you see?’

Each prince describes what he sees; and shoots at it.

All fail, for they choose wrong.

Arjuna’s Response

Eventually, Arjuna steps up. On being asked the operative question, he answers thus:

‘I see a tree.’

‘Perched high upon a bough, concealed by the leaves swaying in the wind, I see a white stool pigeon.’

‘And all I see is the black of its eye.’

Drona drawls:

‘Well then, shoot it: if you can’.

Arjuna bows before the master.

Then he falls into silence.

In a single, fluid motion he releases his arrow.

The black of the bird’s eye is pierced.

The target falls to the ground.

The young prince would one day become the greatest archer in the world.

Would he turn out better than his master? That is another story, for another day.

The Arjuna Test and the lawyer

“The Arjuna Test illustrates that the determinative points in one’s life are one’s choices between perception and discernment.

The one misleads. The other focuses the body, soul and mind upon a single objective.

Upon discernment, first impressions fall away. Something majestic looms from the mist of perception.

Thus the teacher’s question, the pupil’s answer, and his subsequent action are a lesson on Dharma – correctly chosen and executed, one achieves one’s objective.

And the objective is?

To always look deeper, to see further, even as far as Eternity: and thus to keep within Dharma.

So also the study of law

No archer achieves mastery by magic.

If there is magic, it is only in unremitting, relentless, backbreaking labour – exhausting, exacting industry that demands your focus – day and night.

Train your vision to see what is essential.

Discard all the rest.

See only Justice.

If you do, you will not miss.

“You will not miss Justice, Honesty, Integrity or Compassion: for the first encompasses the rest.

That is what every lawyer should be taught.

[The author expresses his gratitude to Dato Mahadev Shankar, former Court of Appeal judge, for his vision; Dato Bhaskaran B. Pillai for his admiration for and his explicit references to Chinese Philosophy: and finally to Miss Thavamani Subramaniam of Seremban, for animating Arjuna, and for bringing a 2,500-year-old philosophy to into the law.]