And thus I clothe my naked villainy with old odd ends stolen out of holy writ, and seem a saint when most I play the devil. Richard III. 1. 3
When I was three years old I ate some chocolate cake forbidden by my mother. I washed my hands of the illicit dessert believing my crimes fully concealed. My mother asked me whether I had eaten any of the cake. I pointed to my younger brother currently eating cake, too young to understand the rule of law but old enough to follow in his brother’s footsteps. Too short to see the mirror above the sink where I washed my hands, I did not realize that I had chocolate icing on my face. My crimes earned a double punishment as I had not only disobeyed but had been dishonest – the greater of the two evils according to her.
Education challenged my mother’s concept that honesty is always right. Philosophy classes based on Immanuel Kant often ask students whether it is okay to lie to the SS if they knock on your door asking if there are any Jews in your house. Kant’s “Critique of Practical Reason” teaches that honesty is virtue in context of voluntary, trading relationships with people capable of rationality. When force being used against us, when honesty would serve evil, then outright dishonesty is morally acceptable. We can avoid irrational people, but not those wielding force and their use of force demands appealing to a higher virtue of righteousness.
Dishonesty is viewed as acceptable when people attempt to invade our privacy. We answer “Fine” when someone with whom we do not want to discuss our intimate affairs asks us how we are doing. We learn to avoid asking certain people how they are if they tell us the truth by regaling us for hours on their latest issues. We may choose to be dishonest about the extent of a work relationship (“It was just lunch”) or why we arrived late (“…traffic…”). Rather than promoting dishonesty we could tell people the answer is none of their business. More honest but less polite which is sometimes the more important virtue.
In “The Art of Mingling”, Jeanne Martinet teaches the social grace of ending conversations at mingling events by being dishonest with people. Her concept is that it is more important to be thought of as a good mingler and thus be welcome at more mingling events. Telling someone that “I want to try that pate, I’ve heard it’s divine!” as an excuse to walk away or “Have you met X?” as a way to pawn someone off on someone else is a dishonest social grace required of anyone who is anyone in the right circles.
Philosophical and socially practical dishonesty is mere child’s play compared to the fully functioning and sanctioned dishonesty in the legal profession. I told many law school classmates that I could not make a living as a defense attorney because my advice would be “If you did it then we’re going to plead guilty.” A criminal trial, on either side of the aisle, is not about honesty but about what can be proved according to the rules. Most arraignments start out with a dishonest statement from the defendant: “Not guilty.” We, as a self-promoting legal system, pontificate that we lie for the good of society at large, for the higher virtue of justice in the greater good. We force countless unnecessary hours on police departments at tax payer expense. We toll whatever billable hours necessary – not for our good but the good of all – to defend people who we know are lying about their innocence.
If an attorney had represented me before my judge-mother in the chocolate cake caper I think I would have received the same dual punishment and the attorney would have had his mouth washed out with soap. In our more modern and just society the chocolate cake on my face would be dismissed and my tax-payer mother forced to pay the attorney.
On the Prosecution side we earn promotions for closing cases, for what we can prove, not necessarily because we sentence the right people. We view a case as honest more than a result. If an honest case convicts the wrong person that is okay because the system is the more important value. High profile crimes drag a level of political expediency when publicly elected officials add their weight onto one side of the scales of justice by demanding a conviction above demanding the truth.
In civil trials honesty slides on a percentage scale. We argue based not so much on the truth but on what is in the contract, not so much on what actually happened at the scene but what can be proved. Honesty takes a back seat to documentation. It may be the truth that sexual misconduct did not occur but she wants him fired for other reasons and the system gives her this advantage. He was drinking at the time of the accident but it is easier to take a hit-and-run misdemeanor than be honest about what happened.
Trial by a jury means deep-pocket corporate defendants are tried not before a jury of their peers but before those sympathetic to the plaintiff who themselves await their turn to win the roulette wheel of riches by lawsuit. Honesty and accountability be damned, the greedy need to be punished. Who better to do the job than the non-greedy who ask for no more than 30 – 35% of what justice demands?
Lest someone think my thoughts on dishonesty disparaging to my chosen profession I offer this legal argument.
According to the Book of Genesis, God admitted that knowing good and evil, accomplished by breaking and lying about the only rule in existence at the time, made humans divine. Humans were then banished from the garden and barred from eating from the Tree of Life lest they become immortal in their human divinity. The serpent in the garden, the world’s first lawyer, would argue from Genesis that practicing dishonesty makes us divine, that the fullness of divinity includes a yin-yang interplay of virtue and vice. Dishonesty, then, is necessary in our spiritual progress as a human race. I wonder what Shakespeare would think of this logic?