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Washington Lawyer

Legal Spectator: How Could Someone As Smart As You Do Something So Unwise?

From Washington Lawyer, April 2009

By Jacob A. Stein

Legal Spectator

I happened to be present when a federal judge gave advice to a group of newly appointed federal judges. He said they would receive letters from people who have matters before the court. What does a judge do with such a letter? Should it be kept in the judge’s chambers, or should it be filed with the Office of the Clerk of the court?

The judge then said he would like to read a letter he just received.

Dear Judge:

I will be in your court next Wednesday when you will impose sentence on me. But for the grace of God, Judge, I would be sitting where you are, and you would be standing before me as a defendant to be sentenced. If that were so, I assure you I would put you on probation.

But for the grace of God. This is a consideration to ponder. This came to mind as I listened to a client disclosing that he had done something wrong and self-destructive. It was completely out of character. He was wise, helped people along the way, and had a fine reputation. Nothing in his prior life could explain the blunder he committed.

I was tempted to say, “How could you, with all your experience and as smart as you are, do something so unwise?” The truth of the matter is that there is no real answer to the question. It may take years to understand why we do the foolish things we do.

Michel de Montaigne (1533–1592) was interested in receiving answers to such questions. Although he was a bookish man, he became mayor of Bordeaux, France, near his hometown. He also traveled widely through Austria, France, Germany, Italy, and Switzerland. Montaigne had served in the army during the French Wars of Religion where he conducted public affairs as a mediator in an effort to resolve the conflicts. He had carried out missions for royalty and had seen the world such as it was during his various roles. He also had studied law and served 13 years as a judge.

In 1571 he took leave of his judgeship and other activities, returning to private life to conduct “a dialogue of the mind with itself.” As a judge, he pondered the but-for-the-grace-of-God issue and why someone would do something self-destructive despite his good character. He also made findings of guilt and imposed sentences—the law required it—otherwise, there would be anarchy. Nevertheless, the question remained. This personal concern of his was a factor in his decision to seek isolation and look within. He wanted to gain insight as to why he did things he later regretted. He saw how people (and of course himself) slide into a trap by degrees. He sought isolation in his library where he generated a writing he called his Essays. In it, he covered several troublesome topics such as fear, idleness, lying, and sadness.

In one chapter, “Of the Inconstancy of Our Actions,” he writes that our contradictions are such that we imagine we have two souls that “accompany and incline us, the one towards good and the other towards ill, according to their own nature and propension; so abrupt a variety not being imaginable to flow from one and the same source.”

Let me give a personal aside on that subject of two souls. I, as Montaigne, have two souls. As a lawyer, I hear people’s troubles. I want to defend them, to justify what they did, if I can. There is another soul questioning the validity of the defense and the role a lawyer plays. It is mischievous. It hides books and files. It makes me forget appointments with people I don’t particularly like. It appears in dreams, unpleasant dreams. It hides the lists that I make to foil it.

And now, back to Montaigne:

Not only do chance winds sway me according to their direction, but I am also swayed and confused by the instability of my footing; and he who closely observes about this finds himself scarcely twice in the same state. I give to my soul sometimes one point of view, sometimes another, according to the side to which I turn her. If I speak diversely about myself, it is because I see myself diversely. All contradictions exist in me at some moment and in some fashion. Shamefaced, insolent; chaste, licentious; talkative, taciturn; hardy, effeminate; sharp-witted, stupid; ill-humoured, courteous; a liar, truthful; learned, ignorant; and open-handed and avaricious and prodigal—all these things I see in myself in some degree, according as I turn myself about; and whoever studies himself very carefully finds in himself, aye, and in his very judgement, this same volubility and discordance….

Montaigne had the nerve, or is it the courage, to tell the truth.

I have seen no monster or miracle on earth more evident than myself; we become wonted to all strangeness by habit and time; but the more familiar I am with myself and the better I know myself, the more my misshapenness astonishes me, and the less do I comprehend myself.

The Essays have never been out of print. Shakespeare and others have incorporated Montaigne into their own writings. If you read a few pages each day, he will become your friend; in fact, his essay on friendship is a starting point. Asked to explain why someone so different from himself, and with no apparent charms, was his closest friend, he summed up the perfect friendship this way: “Because it was he, because it was myself.”

Reach Jacob A. Stein at [email protected].