Surrounded by the everyday reality of law, we tell worldly, profane stories about our work as lawyers. Our work favors profanity, even as we imagine a world of justice that law promises.

profane lawyering

Profane, as defined in Webster's Seventh New Collegiate Dictionary, means: not concerned with religion or religious purposes—secular; not holy because unconsecrated, impure, or defiled—sanctified; serving to debase or defile what is holy—irreverent; not among the initiated, not possessing esoteric or expert knowledge. The verb profane means to treat (something sacred) with abuse, irreverence, or contempt, to desecrate, violate. To debase by a wrong, unworthy, or vulgar use.

Listen as the lawyer protagonist in Stephen Greenleaf's novel The Ditto List, interviews a divorce client, Mareth Stone: "Let's get one thing clear right now, Mrs. Stone. If you want me to represent you in this matter then absolutely everything in your life is my business, from your bowel movements to your taste in millinery. If you don't buy that, I suggest you go find some lawyer in a fifty-man firm who makes a quarter of a million a year and thinks that means he knows everything he needs to know about divorce work even though the only one he's ever been involved with is his own." [Stephen Greenleaf, The Ditto List 25 (New York: Ballantine Books, 1985)]

Criminal lawyers, one suspects, are most accustomed to profane speech. Jerry Kennedy, the working man's lawyer in George Higgins's novel, Kennedy for the Defense in his first meeting with Emerson Teller, a young man charged with homosexual solicitation of a police officer, is questioned by his client about whether he thinks he "can get this cleared up?" Kennedy tells him:

"Get what cleared up, you little cocksucker." I said. "What're you charged with Regicide? Treason? Double-parking? Following too close? Molesting a hair-dresser or bothering a beautician? How the fuck do I know if I can get you off? Which is what you mean, in case you didn't know it. I'm a lawyer. I try cases. That's all I do. I don't fix oil burners and I don't do any dowsing if your well runs dry. . . . You're wasting my goddamned time. You're not interviewing me—I'm interviewing you."

Emerson tells Kennedy he was framed by the police officer. And Kennedy responds:

"Right. . . . And I was sculpted into my present graceful shape by a maniacal genius of a topiary gardener. Now, I did not haul my ass up here this morning [from my vacation] to hear you tell me how you got framed and you're innocent and so help you God, you are the victim of a malevolent society. I came up here so you can tell me what happened. You tell me what happened. I will tell you whether you were framed, or whether there is some way I think maybe you got a shot at getting off, or whether you should hang down your head and cry and tell the judge that you ain't gonna do it again and you don't know what possessed you, you did it this time. I will also tell you what any one of those things is liable to cost you, and you will give me some money, and I will proceed. Or else you won't, and I won't. Clear?"

Emerson complains that Kennedy is not being empathetic. Kennedy says,

"I'm not. . . . You can get empathy down at the fuckin' juice bar. Or is that a poor choice of words? Doesn't matter. You are not here for empathy. You are here because somebody or other wishes to hoist you on your own petard. You wanna get stroked, get some musk oil and a friend. You wanna get legal advice, start talking to your lawyer." [George V. Higgins, Kennedy for the Defense 65, 98-99, 101 (New York: Ballantine, 1980)]

How do we get from the profane world of D.T. Jones and Jerry Kennedy portrayed in the novels to the world in which law is mythic, the lawyer a hero?

Lawyers are sometimes profane in speech, but they can also live profane lives. When lawyers tell stories about irreverent machinations of law, and their own lack of concern for justice, they become part of this profane world. The pull of this world and stories that defile are common in the hallways of buildings devoted to law.

Consider now George V. Higgins's introduction to Jerry Kennedy:

I have a client named Teddy Franklin. Teddy Franklin is a car thief. He is thirty-two years old, and he is one of the best car thieves on the Eastern Seaboard. Cadillac Ted is so good that he is able to support himself as a car thief. He has been arrested repeatedly, which is how he made my acquaintance, but he has never done time. That is because I am so good. It is also because Teddy is so good.

This is the way, Mack, Jerry Kennedy's wife describes her husband, according to Jerry Kennedy:

If you ask Mack what kind of lawyer I am, she will tell you that I am the classiest sleazy criminal lawyer in Boston, even if I am standing right there. This is not flattering, perhaps, but she knows I will not argue with her. I go to my office to make a living, not to make a life. My life is at home." [George V. Higgins, Kennedy for the Defense 1, 13 (New York: Ballantine Books, 1981)]

Jerry Kennedy is not a bad man or a bad lawyer but he is working with some profane notions about lawyering, notions that may get him into trouble before all is said and done.

To profane law violates one myth of professional life even as it identifies and configures another myth, that of the street-smart realist.

We profane only that which can be held sacred. Profanity of language is made possible by the beauty and inventiveness of language. If we had no poetry, no poetic rendering of experience, no word-shaped image of world and human sentiment, we could utter no profanity. In the absence of sacred sensibilities, we would not experience outrage when we speak of what lawyers do in the name of law.

We are outraged when lawyers go astray because we place our trust in them, knowing as we do that they are prone to self-deception, conflicts of interest, and professionally-induced hubris. The profane nature and quality of the reality work of law is a secular mask that disguises the roots of our claims to professionalism. The older meaning of profession, the taking of vows in a religious community, or openly declaring a belief and a faith, find a place in our stories. A profession, as we find it defined in the dictionary and as it is described by sociologists, is a calling, a vocation that engages all of our being. To be a professional, to aspire to professionalism, to claim a profession as one's own is to embrace, knowingly or unknowingly, a form of contemporary work with sacred features.

We become, says Mircea Eliade, "aware of the sacred because it manifests itself, shows itself, as something wholly different from the profane." The sacred, says Eliade, shows itself to us."

"[B]y manifesting the sacred, any object becomes something else, yet it continues to remain itself. . . ." The law manifests sacred ideals, but it remains law. The law is at once mythic and real.

Those who choose what Mircea Eliade calls a profane life do not, he argues, succeed in completely doing away with religious behavior. "[E]ven the most desacralized existence still preserves traces of a religious valorization of the world." Eliade finds "crypto-religious behavior" present in those who adopt profane ways of existence. [Mircea Eliade, The Sacred and the Profane: The Nature of Religions 11, 23, 24 (New York: Harcourt Brace Jovanovich, 1959)]

Most of us don't take the most direct path to heaven or a direct path through life. Some of us do some good along the way and most of us will find occasion to go astray. As the farmer told the tourist who asked for directions, "you can't get there from here." If the lawyer could be a representative of justice, an advocate of just compromise, a prophet of equitable and fair-minded resolution of conflict, we would install lawyers as priests and worship their practices as a contemporary secular religion. And to the extent lawyers accomplish any of these modern day miracles we indeed worship them.

Something of the farmer's advice resonates in Richard Lichtman's comment about the relationship of psychoanalysis and Marxism: "[T]here are crucial modes of social life in which the antagonism between what is actually required and what must be believed is so massive that only unconscious denial will make the process bearable. The ubiquitous, overarching contradiction in capitalism between apparent independence and actual dependence, embodied in the formative institutions of family, school, work, and cultural imagination, are too excruciating to be continually recognized and consciously confronted." [Richard Lichtman, The Production of Desire: The Integration of Psychoanalysis into Marxist Theory 254 (New York: Free Press, 1982)]. Law is one of those "crucial modes of social life" in which the antagonism between what we do and what we hope to be, appears at times like an unbridgeable chasm. All too often, law seems, as if it had no relation to justice. The lawyer lives in two kingdoms, the real (mythless) world of law and the imagined (mythologized) world of justice. The lawyer knows both worlds. Each has its rules and rulers, its rites and rituals, its ways and means. Each kingdom demands allegiance. Each requires a conscious way of being in the world (that can become unconscious). The lawyer navigates these two perilous worlds, the world of myth and the world of myth-less-ness.

We are left, if we accept Mircea Eliade's notion of the profane and the sacred with a dilemma, a puzzle, a paradox: How are we to live in a world where the profane and the sacred are no longer one? How are we to participate in the sacred, and in myth, in a profane world? If the profane and the mythic are of two kingdoms, how are we to move from one to the other?

Mythology itself is instructive on the presence of these two worlds, two kingdoms, two realms of consciousness, two realms of reality. In Greek mythology, the two worlds--the world of mortals and the world of the Gods--must each work out their relation with the other. The myths tell the stories of how these two unlikely worlds and their relations are worked out.

an illusion of myth-less-ness