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Volume 23, Number 1/2 (1999) reprinted by permission Legal Studies Forum LAWYERS IN THE SUBJUNCTIVE MOOD: INVENTION OF SELF AND ALBERT CAMUS’ THE FALL TIMOTHY HOFF* However, a different kind of lying: lying about one’s very identity, has appeared as of late and with alarming frequency.2 William Ginsburg, the attorney for Monica Lewinsky, another woman with alleged sexual ties to the President, was recently confronted with lying about his military rank. Ginsburg had repeatedly told Newsweek, “I was a captain in the infantry.”3 Ginsburg’s military records obtained by Newsweek show that he was discharged from the Army Reserve in 1975 with the rank of first Lieutenant. Confronted with his records, he said he was offered promotion to captain if he stayed in the service, but he declined.4 Martha Nachman, Alabama’s Commissioner of Human Resources was forced to resign on November 10, 1997, when it was learned that she had invented college degrees on her resume.5 She claimed that she had a bachelor’s degree from UCLA, but news reporters revealed that UCLA had never heard of Martha Nachman.6 On December 8, 1997, the widow of former Ambassador M. Larry Lawrence said she would have his body removed from Arlington National Cemetery. Lawrence, ambassador to Switzerland at the time of his death in 1996, and a major contributor to the Democratic Party, was buried at Arlington premised on his having served in the Merchant Marine in 1945 when he was, supposedly, wounded in action. Lawrence claimed he was knocked overboard by a Nazi torpedo that struck his vessel bound for Murmansk. Congressional investigators revealed that Lawrence’s military service was fabricated.7 Perhaps the saddest of recent stories of this ilk is that of Judge James Ware, a United States District Judge in California, who was a candidate for a seat on the United States Court of Appeals for the Ninth Circuit. Ware, a graduate of the Stanford Law School, was forced to withdraw his name from nomination when it was revealed that he had, to an important degree, assumed the identity of an Alabama man with the same name. For years Judge Ware had claimed that as a 16 year-old youngster in 1963, he was pedaling his bicycle in Birmingham, Alabama, and that his brother, Virgil, then 13, was riding on the handlebars. On the very day of the bombing of the Sixteenth Street Baptist Church that killed four girls, white youths shot young Virgil, who then died in the arms of his brother, James. In 1994, Judge Ware told the San Jose Mercury News that “when I went through the death of my brother, I came very close to becoming someone who could hate with a passion. What happened to me was a defining experience, a turning point in my life.”8 The experience, he was quoted as saying, “molded me into a person who was hungry for justice.”9 The James Ware whose brother was killed in 1963 works in Birmingham for a coal company. He never met the celebrated jurist who appropriated his dramatic story, and said, “I can’t understand why he wanted to do this.... You shouldn’t try to get ahead by using somebody else’s pain.”10 The lie was uncovered by United States District Judge U.W. Clemon of Birmingham. Judge Ware tried to explain his deception by saying that he was, like the real James Ware, also a 16 year-old black youth living in Birmingham at the time, and was traumatized by the racial confrontations taking place. He wrote, “I used my tenuous connection with the Wares and my own feeling of loss [the death of a sister] as a basis for making a speech about Virgil Ware’s death?. I regret my lack of honesty.”11 In March of 1997 Wes Cooley, a member of Congress from Oregon was convicted of fabricating a Korean War record. Cooley was convicted of lying in an official state document and sentenced to two years probation and 100 hours of community service.12 More famous as a resume-padder among members of Congress is Senator Joseph Biden of Delaware, who had to withdraw from the 1988 presidential race when it was revealed that he claimed for himself a better record at Syracuse University Law School than the facts warranted, and that he had plagiarized a law review article. He also “borrowed the biography of a British politician to make his own sound better.”13 Each of these persons was living in the subjunctive mood. It was as if things were better than they are, as if they had achieved a status they longed for, as if they were the heroes they represented themselves to be. Albert Camus’ 1956 novel, La Chute (published in English as The Fall14 in 1957, the year Camus was awarded the Nobel Prize for Literature), is the monologue of a Parisian lawyer who calls himself Jean-Baptiste Clamence. He recalls his professional life for a listener whom he meets in a seedy bar in Amsterdam named Mexico City. As he begins his recitation, he says: When I used to live in France, were I to meet an intelligent man I immediately sought his company. If that be foolish ... Ah, I see you smile at that use of the subjunctive. I confess my weakness for that mood and for fine speech in general.15Clamence is a man who exults in his own moral elegance. A successful lawyer in Paris, “I was truly above reproach in my professional life,” he tells his listener.16 “I had a specialty: noble cases. Widows and orphans, as the saying goes?. [M]y courtesy was famous and unquestionable.”17 He reports his delight in helping elderly ladies cross the street and in giving alms to beggars. But Clamence begins a fall from his moral and professional Eden on one dark, damp evening as he walks along the Seine. He commits a sin of omission quite out of character, that is, out of the character he has assumed himself to be. He sees a woman on the Pont Royale leaning over the railing and seeming to stare at the river. On closer view, I made out a slim young woman dressed in black. The back of her neck, cool and damp between her dark hair and coat collar, stirred me. But I went on after a moment’s hesitation. At the end of the bridge I followed the guys toward Saint-Michel, where I lived. I had already gone some fifty yards when I heard the sound—which, despite the distance, seemed dreadfully loud in the midnight silence—of a body striking the water. I stopped short, but without turning around. Almost at once I heard a cry, repeated several times, which was going downstream; then it suddenly ceased. The silence that followed, as the night suddenly stood still, seemed interminable. I wanted to run and yet didn’t stir. I was trembling, I believe from cold and shock. I told myself that I had to be quick and I felt an irresistible weakness steal over me. I have forgotten what I thought then. “Too late, too far...” or something of the sort. I was still listening as I stood motionless. Then, slowly under the rain, I went away. I informed no one.18From this point on Clamence begins his descent into what I would call a Sartrean hell. Jean-Paul Sartre wrote: “Man is nothing else but that which he makes of himself.”19 Clamence had tried to make of himself an exalted hero. His preference was for places elevated, both literally and figuratively. “Let us pause on these heights,” Clamence tells his listener as they walk the streets of Amsterdam.20 Now you understand what I meant when I spoke of aiming higher. I was talking, it so happens of those supreme summits, the only places I can really live. Yes, I have never felt comfortable except in lofty places. Even in the details of daily life, I needed to feel above. I preferred the bus to the subway, open carriages to taxis, terraces to closed-in places.? In the mountains I used to flee the deep valleys for the passes and plateaus; I was the man of the mesas at least. What I like most in the world is Sicily, you see, and especially from the top of Etna, in the sunlight, provided I dominate the island and the sea.22Clamence’s fall is gradual but inexorable. Eventually he begins to hear voices laughing, especially when he walks along the river. At one point the usually composed Clamence loses control of himself in a traffic snarl and is beaten up by another driver. As he deteriorates, he finds himself laughing at court pleadings for no evident reason. Eventually, he leaves his law practice and winds up in Amsterdam, “in Limbo, the vestibule of Hell.”23 In this new venue Clamence has a new, prophetic vocation as a judge-penitent “practicing my useful profession... indulging in public confession as often as possible.”24 “I accuse myself... I provoke you into judging yourself.”25 What is the actual sin that occasions Clamence’s fall? The reader can see many faults in Clamence: he is arrogant and selfish, and he allowed a woman to die when he might have saved her life. Yet, these faults are simply attendant to what Clamence regards as his cardinal sin: duplicity, from which he finds it impossible to escape entirely. “My profession is double, that’s all, like the human being. I have already told you, I am a judge-penitent.”26 In his Paris life, all was doubled, carefully and neatly. I revealed myself to be both a tireless dancer and an unobtrusively learned man; I managed to love simultaneously—and this is not easy —women and justice; I indulged in sports and the fine arts?.27 [239] I loved [women], according to the hallowed expression, which amounts to saying that I never loved any of them.30One troubling aspect of Clamence’s Janus-like character is his inability to distinguish the serious from the frivolous, real life from playing at life. At one point he says that he has “never really been able to believe that human affairs were serious matters.”32 So he merely pretended to take life seriously.33 Ironically, there were points in his life when he might have had some clarity in this regard: when he played sports and when he acted in plays. I have never been really sincere and enthusiastic except when I used to indulge in sports, and in the army, when I used to act in plays we put on for our own amusement. In both cases there was a rule of the game, which was not serious but which we enjoyed taking as if it were. Even now, the Sunday matches in an overflowing stadium, and the theater, which I loved with the greatest passion, are the only places in the world where I feel innocent.34In addition to his redemption from the trap of his own life’s play, Clamence’s fall calls him to face the fact of his own mortality. It was the death of the woman on the bridge and his callous act of ignoring her calls for help that brought him to consider his own death. Then it was that the thought of death burst into my daily life. I would measure the years separating me from my end. I would look for examples of men of my age who were already dead.35 But Clamence will find no redemption from his own selfishness, his own duplicity, or his own fear of death, in religion, which he disparages as a huge laundering venture—as it was once but briefly, for exactly three years, and it wasn’t called religion. Since then, soap has been lacking, our faces are dirty, and we wipe one another’s noses.... I’ll tell you a big secret, mon cher. Don’t wait for the Last Judgment. It takes place every day.36Clamence’s redemption, to the extent it is possible, comes from his status as a judge-penitent in Amsterdam, at the vestibule of Hell. Here, he can speak and his “words have a purpose?of silencing the laughter, of avoiding judgment personally.”37 “I have accepted duplicity instead of being upset about it.”38 “I haven’t changed my way of life; I continue to love myself and to make use of others. Only, the confession of my crimes allows me to begin again lighter in heart?.”39 What are we to fear from lawyers, like Clamence, who are not thoroughly committed to the truth? After all, truth is the chief virtue of the academy, whereas justice is the chief virtue of the law and its courts. Judge Ware remains on the bench in California, where it is said that “[h]is skills are considered unimpeachable.”40 Senator Biden remains in the United States Senate, where he is the ranking Democrat on the Foreign Relations Committee and a member of the Judiciary Committee, which reviews the resumes of federal judicial appointees. In light of the fact that both Senator Biden and Judge Ware are acknowledged to be intelligent and effective in their public service, is there any reason why they should not continue in office despite their long-standing histories of deception about themselves? Certainly not all lies are of equal moral gravity. Sissela Bok, in her 1978 classic, Lying: Moral Choice in Public and Private Life, writes of a spectrum of lies from white lies on the one hand to “lies in a serious crisis.”41 There are lies that are trivial, such as “the lies told to boast or exaggerate?the embroidering on facts that seem too tedious in their own right....”42 Even St. Augustine, who wrote that all lies are sinful and forbidden by God, established an eightfold hierarchy, from the most grievous lies (uttered in the teaching of religion), to lies told to save someone from harm (sinful, but easily forgiven).43 However, Bok warns: Because lines are so hard to draw, the indiscriminate use of such lies can lead to other deceptive practices. The aggregate harm from a large number of marginally harmful instances may, therefore, be highly undesirable in the end—for liars, those deceived, and honesty and truth more generally.44The problem with lies by lawyers and public officials about themselves and their identities is that they are not trivial, even if they do not relate directly to their everyday tasks. They are not trivial because they relate to their very being and identity. In Book II of Plato’s Republic Socrates says: [D]eception or being deceived or uninformed about the highest realities in the highest part of themselves, which is the soul, in that part of them to have and to hold the lie, is what mankind least like—that, I say, is what they utterly detest. There is nothing more hateful to them.45Hateful precisely because such lies are corrosive of the social and political order. John Stuart Mill puts it this way: [T]he cultivation in ourselves of a sensitive feeling on the subject of veracity, is one of the most useful, and the enfeeblement of that feeling one of the most hurtful, things to which our conduct can be instrumental; and...any, even unintentional, deviation from the truth does that much towards weakening the trustworthiness of human assertion, which is not only the principal support of all present social well-being, but the insufficiency of which does more than any one thing that can be named to keep back civilization, virtue, everything on which human happiness on the largest scale depends.46Thus, lying by public officials about themselves is subversive of the social and political order, especially in a democratic society where office holders are subject to public scrutiny. Lying of the sort we are considering here is also inherently unjust. Justice consists, in Aristotle’s view, of treating equals equally and unequals unequally, but in proportion to their relevant differences.47 Justice seeks “to give people their due treatment, reward, punishment, or share.”48 Those who boast of degrees unearned, heroic deeds unper-formed, wounds not received, battles not fought, and articles not written are, therefore, claiming more than their due and are acting unjustly in their very misrepresentation of themselves. In the case of Judge Ware, this injustice also amounts to theft: the misappropriation of the sympathy and honor due to the man in Birmingham who is truly the brother of the slain Virgil. Finally, if the example of Jean-Baptiste Clamence is instructive, lying about one’s very identity is not only unjust, it is self-deceptive and self-destructive.49 For as the lie comes to be repeated, it becomes appropriated in such a way that the deceiver is startled and shocked when confronted with the truth. In addition, the lie that became a part of Clamence’s very idea of himself came to be subversive of his profession, his happiness, his sanity, and his very life. He correctly perceived that his fall was occasioned not by his pride, arrogance, and selfishness, but by the deception and self-deception that masked his pride, arrogance, and selfishness. Clamence teaches us well from his school room in Amsterdam that lying about oneself furnishes an express one-way ticket to the vestibule of hell. Would that we were not like him. 38. Id. at 141. 39. Id. at 142. 40. Van Boven & Smith, supra note 9, at 41. 41. Bok, supra note 1, at 57. 42. Id. at 59. 43. Id. at 33-34. 44. Id. at 60. 45. Plato, THE REPUBLIC 382b (Charles Scribner’s Sons, 1928)(Benjamin Jowett trans.) 46. John Stuart Mill, UTILITARIANISM 294 (Penguin Books, 1987)(Alan Ryan ed.) 47. “[A]wards should be according to merit.... The just, then, is a species of the proportionate.” Aristotle, THE NICOMACHEAN ETHICS v. iii. 25, 30, reprinted in Richard McKeon (ed.), INTRODUCTION TO ARISTOTLE (Modern Library, 1947). 48. Bok, supra note 1, at 81. 49. In the Gorgias, Plato makes the self-destructive consequences of lying explicit. “Doesn’t it follow,” Socrates asks Polus, “that a man’s duty is to keep himself from doing wrong, because he will otherwise bring great evil upon himself?” Plato, THE GORGIAS 480a (Penguin Books, 1960)(Walter Hamilton trans.); cf. Galatians 6:7 (New Jerusalem Bible): “[W]hatever someone sows, that is what he will reap. If his sowing is in the field of self-indulgence, then his harvest from it will be corruption....” |
