Humanity and the Law

The article by Professor Markovits' is thoughtful and careful - perhaps painfully so - but it simply and systematically ignores the human condition. The human condition is what law and law practice address, or, as they say these days, what law is "all about." The normative premise of Professor Markovits's analysis is that all real-world persons are equal. This premise is drawn chiefly from the philosophy of Immanuel Kant. From this point of departure, it is supposed to follow that all persons should be treated equally.

From this, it follows in turn that any vocation or calling that requires different treatment of various persons is ethically suspect. Indeed, such a vocation is ethically wrong, maybe evil. The practice of law, as defined by its function, its traditions, and its ethical norms, is a vocation that requires its practitioners to accord different treatment to various persons. It follows that the practice of law is ethically suspect, perhaps evil.