Law and Medicine, Part 4: The Precarious Value of Balance

Keep reading, and I will reveal to you the true answer to life, the universe, and everything, including how to know the truth, and how to solve all of our problems.

I’ve been promoting the value of balance with the full recognition that it is a lawyer’s kind of ideal.  There is a kind of professional embrace of the icon of Lady Justice, a woman blinded to represent the impartial nature of Law, holding a scale in one hand and a sword in the other, the scales sometimes evenly weighted and sometimes tipped; the sword sometimes raised and sometimes lowered.  The scales serve as symbolic counterweights to the sword.

The scale suggests justice as a zero-sum game.  Each measure added to a pan on one side enhances its position and devalues the opposing pan.  The sword is a token of the adversarial nature of the process, which had its roots in trial by combat. 

Even the ideal of balance has to be balanced against itself, lest it turn into a lazy habit for compromise in the face of every demand, a shortcut for the hard discipline of careful evaluation. Even the ideal of balance can become a weakness.  Aggressive adversaries might force continual compromises that incrementally eke their way toward imbalance.  I used to see it in the healthcare industry– like when a healthcare insurance company accepts a compromised reimbursement rate from a provider when negotiating the contract—but then refuses to pay the negotiated rate when it is due, and seeks yet another compromise.  Or when a personal injury attorney finds an incentive to take cases with a low probability of winning because the compromises, small as they might be, start to add up.

The demands of balance are continually challenged by the harsh demands of the material world.  This ideal of balance, like the ideals of socialism and capitalism, all crash when tested against the ideal of permanence and universality.  The center of gravity is always changing, shifting.  Sometimes balance takes a demonstrable, palpable form, as when it manifests itself in a particular circumstance—like in the form a tightrope walker wending his way at a great height, or a Mondrian painting, or the condition the ancient Greeks referred to as isonomia, the ebb and flow of the humors, now understood in their modern biochemical equivalents as homeostasis.  Balance may be visible in operation, but it is only permanent in its immaterial, conceptual, idealized form.

In the healthcare context, the payors, the providers, the employees, the patients may reach a level of satisfaction (or at least a tolerable level of dissatisfaction) in their respective spheres and with the way they relate.  It becomes real in the way The Shadow and New Amsterdam are real.  Real balance is real as life itself, always changing, constant in its impermanence, something that shouldn’t be, but is.  But it never lasts, except in fiction.  Balance is a fiction churning with the stuff of non-fiction, like the compromise I made with my father that came to epitomize my life, like the ideal version of this essay which keeps evading my abilities, like the organization I cast as an ideal, shimmering between its actuality and a dream of remembrance.

Scott Fitzgerald once said, “the test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function.”

Fitzgerald’s maxim is easy for a lawyer to appreciate.  Lawyers can usually facilely argue either side of any given proposition, a characteristic that makes them the butt of jokes.  That is part of the way they are trained.  There is a saying about law school– the main purpose is not to teach specific laws, for the laws are all subject to change at the whim of the legislature or courts, but rather to teach the students how to think like lawyers.  That process most commonly involves the heavy use of the Socratic method, where the teacher only asks questions, without giving answers.  It is an unlearning process.  It functions more like behavior modification designed to erode the student’s sense of certainty, facilitating the attitude that morality will flow from the legal system itself rather the morals of the individual participants.  This prepares the student to use an intellectual discipline that is a systemic approach to processing information without regard to whether or not it is true.  You might have a crucial, empirical piece of evidence, like a smoking gun covered with fingerprints, but the mechanics of the law can obliterate that evidence in order to promote a broad social ideal, and then work to make a finding of guilt or innocence.  In tort cases, juries have to consider questions of legal causation, guessing at what might have happened if what actually happened didn’t.  Juries assign concrete values to things purely and absolutely unknowable, like the experience of another person’s pain, or how long a dead person would have lived.  The law student will come to understand that different juries may arrive at completely opposite results, but each is considered to be the truth—absolute realities—within their limited context.  


There’s a neat and simple trick that lies beneath the Socratic method of training lawyers.  When a student answers a teacher’s question, the teacher poses a new question that changes the context of the student’s answer.  The shift in context alters the meaning and value of the student’s answer.  The context shifts back and forth between the needs and desires of individuals as weighed against those of society.  Even the value of zero-sum contests between individuals is pitted against the non-zero value of achieving broader social objectives.  Those opposing imperatives are in a continual state of tension, and require ongoing examination and balancing.  Lawyers end up with analytical methods approximating F. Scott Fitzgerald’s maxim.

I would submit that this is a perfectly valid way to view the structure of reality, which is ingeniously built of unified contradictions, a construct that makes reality continuously unstable and unpredictable– unbalanced.  We not only have to deal with polar extremes of contradictory principles, we have to deal with the spectrum of variations that lie in between.  Every solution becomes a problem, every generality yields to an exception (including this one), every orthodoxy generates a heresy, and the only thing we can depend on is undependability.

One way to keep two opposing and contradictory views in balance with one another is to accept the notion that everything is true.    

Everything is true, including its opposites: nothing is true, and not everything is true.

Since Truth depends on context, one only has to find the context in which a given thing is true.

Reality is blended with unreality.  Truth is blended with fiction.  These contradictory notions blend into a unified structure.  This basic structure creates a reality rigged for instability.

It doesn’t matter what is true, only what works.  You don’t have to know the truth, but you have to do the right thing.

There is no single solution that will work in every context.  Because reality constantly changes, today’s solutions are tomorrow’s problems.

Everything is true.  And that proposition itself is the solution to all of our problems. But the notion that our problems can be simply and easily solved is a myth.

Most readers of science fiction and fantasy already know the answer to Life, the Universe, and Everything. 

It is 42.  And it isn’t.

The ultimate answer to Life, the Universe, and Everything is, in fact, 42.  And that answer is irrefutable.  But only within the limited context of another deeply embedded contemporary cultural artifact that has become part of our modern folklore– Douglas Adams’ “Hitchhiker’s Guide to the Galaxy.”

And in truth, I don’t have the solution to all of our problems.  But I have a unique perspective which provides an important contribution to solving all of our problems.  Everyone does!

  Everything is true.  You just have to find the context in which it is true.  This really isn’t a novel proposition.  To a certain extent, it is part of old, very powerful intellectual tools that lie at the heart of the way attorneys are trained.  That’s why “it depends” is the universal answer to every direct question posed to a lawyer.  But legal training in America mostly involves taking those tools and weaponizing them.  I’m trying to beat those swords into plowshares.   

The premise that everything is true is a good way to promote dialogue in a contentious climate.  It abides in the First Amendment, which prohibits government from blocking messages based on purported truth or falseness, only their effects.  The American genius has been to construct a legal and political system that operates according to Fitzgerald’s maxim, with its elegant solutions to dispersing power with checks and balances, maintaining opposed ideas simultaneously while continuing to function, balancing values associated with individuality, with society, with culture; rights in balance with rites, right in balance with left, cooperation in balance with competition; truths that reveal lies in balance with lies that reveal truths.  Competing values are forced to balance against one another, while channeling the tension and energy of the conflict to productive ends.  That has been America’s past, and the solution to many of its problems.  But no solution is permanent.  Today’s solutions are tomorrow’s problems.  None of our pollical parties has a monopoly on virtue or competence or honesty, and their best attributes might lie in the way they hold each other at bay, saving them each from their own worst tendencies.  Every solution becomes a problem.  Our superb constitution, by operating true to its very terms, has created the current situation in 2019, when I’m writing this essay.  Every solution becomes a problem, including Fitzgerald’s maxim.

The Fitzgerald quote itself came from a piece titled “The Crack Up”, cracking up being an unsurprising result of holding two opposed ideas at the same time.  In order to fully embrace the maxim, you must also hold the inverse idea that it should be rejected, creating an infinite cross-reflecting hall of mirrors of contradiction and paradox.  What might be an entirely accurate way to view reality is not an effective way to continue to function.  The essay itself has become a curious reflection of itself, being alternately critically lauded as an important literary milestone or reviled as self-indulgent and distasteful, an act of exhibitionism– Fitzgerald as a flasher of things that would appeal only to those with morbid curiosity about his steep and pitiable decline.  Fitzgerald was able to hold two opposed ideas at the same time until it quite literally destroyed him. The Crack-Up seems a morbidly curious metaphor for America at this moment, and redolent with irony, recalling for whom Fitzgerald was named.