The chariot of the law: drawn by two horses

It is hard to handle a case in family law, or probate, without feeling the increased weight of the court's bureaucracy. For those of us who spend most of our time in the civil departments, the increased need to fill out forms, and to comply with elaborate court procedures, and the increased role of the clerks and the felt presence of the behind-the-scenes staff attorneys - all of it feels oppressive at first. But it forces us to remember that every legal system is comprised of the two elements of bureaucracy and the quest for justice.

In the "Phaedrus," Socrates describes the soul as a chariot drawn by two horses - one noble and the other "quite the opposite." The charioteer must control the horses in order to move the chariot forward. Remembering that passage, it is tempting to say that like the soul, the Law too is a chariot drawn by two horses, Bureaucracy and the Quest for Justice, and that the two horses are in constant conflict. But we would be wrong.

It is the bureaucracy of the law which appoints judges and establishes courts and which establishes rules of practice and procedure. And it is also the bureaucracy which establishes the substantive laws: laws against murder, stealing, tort laws, and laws of contract. Even if we think of those "fundamental" laws as expressing basic moral values, we still need to admit that they get enacted - or activated - in any society through the bureaucratic process of enacting them. So without bureaucracy we could have no quest for justice in any particular case.

So what is it then that makes bureaucracy different from the quest for justice?

One answer lies in the different relationships between the legal system and the litigants. The quest for justice addresses the facts of a particular case and strives to reach a fair result in that case. In a proper trial, the parties and the court cooperate to reach a just result; the trial is not ultimately a competitive process but rather a cooperative one. When the trial is properly handled by all involved, even the loser comes out feeling ennobled. This is what the quest for justice aspires towards, and the legal process is therefore a very high expression of love. The bureaucratic element, on the other hand, is concerned with general rules that apply to all cases and it is too impersonal to be viewed as an expression of love.

It is not hard to come up with examples, because every trial proceeding involves an evaluation of the facts against the backdrop of the applicable law, and every appellate case involves a review of the applicable law, clarification where necessary, and a review of the facts to see if they support the trial court's rulings.

But one particular example comes to mind - an example of which Justice Arthur Gilbert reminded us in a recent column of his, "Pardon the Interruption," May1, 2017 - that shows how the two elements may sometimes be in painful conflict. In TransAm Trucking v. Admin. Review Bd., U.S. Dept. of Labor, 833 F.3d 1206 (2016), a truck driver named Maddin was driving his employer's cargo truck through Illinois when subzero temperatures caused the brakes on the trailer to freeze. He reported the problem to his employer and waited for a repair vehicle to arrive. After several hours, it turned out that the auxiliary power unit in the truck had failed and that there was no heat in the cab. His feet were now numb and his speech was slurred. He called his dispatcher again, who told him to "hang in there." But at that point, he was concerned for his own safety; so he called his supervisor and told him he was going to unhitch the cab from the trailer and drive off to safety. His supervisor told him that under no circumstances was he to leave the trailer: He was either to drag the trailer with its frozen brakes with him or wait there for the repairman to arrive. Maddin did not follow either alternative instruction: He unhitched the cab and drove off, leaving the trailer and the load where they were. The repair crew finally arrived about 15 minutes later.

TransAm fired Maddin for violating company policy by abandoning his load. Maddin filed a wrongful termination claim against his employer, and the Department of Labor found that TransAm had violated the Surface Transportation Assistance Act, which makes it unlawful to discharge an employee "who refuses to operate a vehicle because ... the employee has a reasonable apprehension of serious injury to the employee or to the public because of the vehicle's hazardous safety or security condition." The administrative law judge found that Maddin's reporting the problem to his employer and then leaving the trailer, were both "protected activity" and that TransAm violated the act by terminating Maddin in retaliation..

Perhaps we can see that decision as the quest for justice in this case. But TransAm appealed. The 10th District Court of Appeal upheld the DOL's rulings, but the dissent by none other than Judge Neil Gorsuch - now a justice on the Supreme Court - agreed with TransAm. Gorsuch wrote that Maddin did not "refuse to operate the vehicle," as the statute required. Instead, he operated the vehicle in a manner directly contrary to his employer's instructions, and therefore he did not come within the protection of the statute. Gorsuch acknowledged that Maddin felt in danger of his life - but this, he argued, was a matter for the legislature to have considered. The court's only function, he wrote, is to apply the law as written, despite its apparent failings. So it was proper for the employer to terminate Maddin.

This example shows how a bureaucratic approach to the law, if allowed to run rampant, can sometimes conflict with the quest for justice.

Thinkers have been well aware of these two elements of every legal system from time immemorial - even before there was a legal profession. We see these two elements presented clearly in the "Book of Deuteronomy": "Judges and officers shalt thou make thee in all thy gates ... tribe by tribe, and they shall judge the people with righteous judgment. Thou shalt not pervert judgment, nor shall you respect persons; nor shall you take a bribe ... Justice, justice shalt thou pursue." This text, written in all likelihood late in the 6th century B.C., reflects the understanding that the bureaucracy must be established and kept honest, to allow for the pursuit of justice.

Plato wrote the "Phaedrus" in the 4th century B.C. While Plato's elaboration of the "two horses" allegory is quite complicated, the basic idea is a familiar trope, derived from the Zoroastrian notion that the universe is the scene of a constant battle between good and evil, between Ahura-Mazda and Ahriman. Zoroastrian ideas became familiar to Greek thinkers in the 5th century B.C., and Plato was undoubtedly influenced by them. This trope finds echoes throughout the ages: in the rabbinic discourse concerning yetzer hara and yetzer hatov, in "Macbeth" and "Crime and Punishment," and in countless other texts. And presumably, the tension between good and evil continues to be highly relevant to our profession.

But we can look behind Plato, into intellectual developments which pre-date the Zoroastrian influences and pre-date the "Book of Deuteronomy." Hesiod's "Theogony" written in the late 8th century B.C., mentions Themis, the daughter of the Earth and Sky, known as the personification of divine order, law, fairness and custom. Zeus lay with her and begat Diké, the personification of fair judgments in particular cases; and it is Themis and Diké working together who made that legal system work. About 700 years later, the Talmudic terms "din" and "mishpat" developed the discussion of Themis and Diké in new contexts.

So yes, the notion of the chariot of the law has some validity. But the two horses are not antagonists: They cooperate in order to achieve justice in each case. And we can only hope that like the well-driven chariot of the soul, the chariot of the law is moving forward, instead of running around in circles.