Legal Education, or, The slow decay of a glorious past
The further I progress through my legal education, the more and more distressed I become concerning the future of law as a discipline in the United States. Before attending law school, I saw law as one of the final bastions for people who were concerned with principles of right and wrong, of ethics and morality.
Once, this role was held by private individuals and political figures as well as members of the justice system. Sadly, this is no longer the case. Time and acceptance have long passed the realm of principle away from the former groups. Individuals will claim to live principled lives, and to be concerned with being goodstanding, moral people, but a first-year philosophy student learns very quickly that their attempts are a dismal failure. Scratch the surface of a private individual, and you are more likely to find a tiny fragment of morality immersed in a much wider sea of self-interest, political opinion, religious precept, or contradictory intuitions. It is not difficult to find individuals who are simultaneously in favor of killing non-human animals and against abortion, but who abhor racism. Even the deep conflict between these three principles cannot dissuade them from their stances.
Political figures have long abandoned any more than a token respect for principle. Corruption runs rampant, and few politicians seem actively concerned with the common good. Rather than engage in spirited and informed discussions of the good life and how to achieve it, our politicians negotiate away their view of the good life in order to reach a compromise-solution – as if somehow negotiating away from what is right is ever an acceptable stance.
The very purpose of a justice system, though, seemed clear to me before attending law school. The goal of a justice system was to effectuate the principles of justice in a society, so as to bring us all a little more in line with living rightly.
In a law school, I expected to learn how justice was done in the United States. I expected to learn what principles drove our law, and I expected to explore these principles in anticipation of cases whose time has not yet come. Astonishingly, virtually none of these expectations have been fulfilled.
Rather than the philosopher-kings of old who apprehended the good life and argued with conviction about how the world should be organized, we are training an entire cadre of legal mechanics. A legal mechanic tries to determine what the law is by reading statutes and cases, and then applies that law to the facts of his case to determine the right outcome. If this does not fill you with a certain level of revulsion, then allow me to explain where I am coming from.
Although there are shades of nuance, this type of thinking is what is known as positivism. Law is what the sovereign says it is, and a right answer is reached by applying the sovereign’s edicts to specific cases. This type of scientistic approach is horrifying to anyone who cares about morality and justice more than being a blind automaton in service of our sovereign. Positive law must be judged… it must be evaluated… to determine whether it comports with the good life. The fact that it emerged from the sovereign is not sufficient to render the answers it gives right. To believe that we are bound by positive law is to prosecute and imprison Communists during the Red Scare. It is to prosecute Jews who conduct business outside of the ghettos, or to follow your orders to execute Jews in concentration camps, in 1941 in Germany. It is to drive the bulldozer into a Palestinian family’s home to punish them for a crime they did not commit.
One does not have to scour ancient history or foreign jurisdictions to discover times when positive law led us away from justice. This nation’s own battles with racial equality, women’s rights, and sexual orientation discrimination have shown us clearly that our own Legislative branch is more than willing to turn its back on justice to curry favor with the bigoted and prejudiced electorate that gives them office. This is even more true in an age where those who win office seem inordinately beholden to large companies who explicitly do not have the good of society at heart.
Positive law is morally-unbound. When we believe that our duty as lawyers and citizens is to apprehend the law and apply or obey what it says, we have failed in our most important duty: to safeguard justice.
The idea is not unknown. I am simply echoing the words of Martin Luther King, Jr. and Henry David Thoreau when I state explicitly that we are not bound by an unjust command from the sovereign, and to the extent that we obey, comply, or enforce that law, we are complicit in his injustice and have abandoned our moral rectitude. Our duty is to a higher law: the law of justice.
This duty has been long-recognized. Many people laughingly quote the Shakespearean line that goes, “…the first thing we do is kill all the lawyers.” Not many people understand the context from which that quotation is lifted, however. In the play from which that line is taken (the name of which escapes me at the moment), two men are planning a coup of the government. Their plan entails removing the current, rightful, government from power, and instituting themselves as oppressive dictators who would use the country for their own personal benefit and pleasures. They claim that their plan is foolproof and will work, but only on one condition. And that is that “the first thing we do is kill all the lawyers.” Lawyers have a distinct history as tools of justice who oppose wrongdoing and battle on the side of righteousness. That precious position is slowly slipping away from us.
It was recognized again at the Nuremburg trials following World War II. Nazi doctors and soldiers protested their innocence and pointedly explained that they were only following the law. The judges made themselves loudly heard and clearly understood that there was an obligation to a higher justice than one laid down by legislatures and parliaments, and sent the wrong-doers off to their executions.
Today, I voiced my concern that modern legal education was draining away this honored position as defenders of justice, and that it was turning out scores of legal mechanics who do not understand why the laws are what they are, to what degree they are bound by an unjust law, and to what principles they should argue when trying a case. Instead, we are mass-producing mindless, soulless, legal automatons, of admittedly varying quality, who can write up a contract, file a divorce, or get you out of paying taxes.
After expressing this opinion, much of the class (although noticeably not the professor, who agreed with me) laughed and dismissed my words. What we must confront are the facts of the world we live in, though. We live in an age where principled disputes are arising with far greater rapidity than ever before in human history. The rights of enemy combatants, issues of privacy, equality before the law, equality in wealth, the suffering of non-human animals, rights or non-rights of the unborn, racial profiling, the propriety of genetically modifying organisms and patenting them… The list can continue, and if our only tool to resolve these issues is the expressed will of a legislature, then we should be alarmed and dismayed.
It bothers me to see so many of my colleagues seduced by the idea of a positivism that frees them from thought and responsibility to fulfill the duties of our once-honored position. The heart-breaking thought is that many of these people surely once had a passion for fairness and justice, but who, through endless repetition of reading cases, have been trained that these considerations must give way to statutes and precedent. Some suggested that since this was how law is now practiced, this is how we must learn. Their way of thought sacrifices principles for payment, passion for pretension, and people for process. It is not a way to live, and in other fields it goes by another name: being a sell-out.
In the past, we have had plenty of skilled lawyers, like Daniel Webster, who could orate on principles and convince a judge that his client was the person with justice on his side. Our lifetime will not be known for the liens we perfect, the property deeds we file, or the petty assault claims we prosecute. We will soon need competent attorneys who can apprehend the nature of justice, fairness, equality, and freedom to solve the disputes for which our era will be known for ages to come.
I’m just not sure we will be ready.
Once, this role was held by private individuals and political figures as well as members of the justice system. Sadly, this is no longer the case. Time and acceptance have long passed the realm of principle away from the former groups. Individuals will claim to live principled lives, and to be concerned with being goodstanding, moral people, but a first-year philosophy student learns very quickly that their attempts are a dismal failure. Scratch the surface of a private individual, and you are more likely to find a tiny fragment of morality immersed in a much wider sea of self-interest, political opinion, religious precept, or contradictory intuitions. It is not difficult to find individuals who are simultaneously in favor of killing non-human animals and against abortion, but who abhor racism. Even the deep conflict between these three principles cannot dissuade them from their stances.
Political figures have long abandoned any more than a token respect for principle. Corruption runs rampant, and few politicians seem actively concerned with the common good. Rather than engage in spirited and informed discussions of the good life and how to achieve it, our politicians negotiate away their view of the good life in order to reach a compromise-solution – as if somehow negotiating away from what is right is ever an acceptable stance.
The very purpose of a justice system, though, seemed clear to me before attending law school. The goal of a justice system was to effectuate the principles of justice in a society, so as to bring us all a little more in line with living rightly.
In a law school, I expected to learn how justice was done in the United States. I expected to learn what principles drove our law, and I expected to explore these principles in anticipation of cases whose time has not yet come. Astonishingly, virtually none of these expectations have been fulfilled.
Rather than the philosopher-kings of old who apprehended the good life and argued with conviction about how the world should be organized, we are training an entire cadre of legal mechanics. A legal mechanic tries to determine what the law is by reading statutes and cases, and then applies that law to the facts of his case to determine the right outcome. If this does not fill you with a certain level of revulsion, then allow me to explain where I am coming from.
Although there are shades of nuance, this type of thinking is what is known as positivism. Law is what the sovereign says it is, and a right answer is reached by applying the sovereign’s edicts to specific cases. This type of scientistic approach is horrifying to anyone who cares about morality and justice more than being a blind automaton in service of our sovereign. Positive law must be judged… it must be evaluated… to determine whether it comports with the good life. The fact that it emerged from the sovereign is not sufficient to render the answers it gives right. To believe that we are bound by positive law is to prosecute and imprison Communists during the Red Scare. It is to prosecute Jews who conduct business outside of the ghettos, or to follow your orders to execute Jews in concentration camps, in 1941 in Germany. It is to drive the bulldozer into a Palestinian family’s home to punish them for a crime they did not commit.
One does not have to scour ancient history or foreign jurisdictions to discover times when positive law led us away from justice. This nation’s own battles with racial equality, women’s rights, and sexual orientation discrimination have shown us clearly that our own Legislative branch is more than willing to turn its back on justice to curry favor with the bigoted and prejudiced electorate that gives them office. This is even more true in an age where those who win office seem inordinately beholden to large companies who explicitly do not have the good of society at heart.
Positive law is morally-unbound. When we believe that our duty as lawyers and citizens is to apprehend the law and apply or obey what it says, we have failed in our most important duty: to safeguard justice.
The idea is not unknown. I am simply echoing the words of Martin Luther King, Jr. and Henry David Thoreau when I state explicitly that we are not bound by an unjust command from the sovereign, and to the extent that we obey, comply, or enforce that law, we are complicit in his injustice and have abandoned our moral rectitude. Our duty is to a higher law: the law of justice.
This duty has been long-recognized. Many people laughingly quote the Shakespearean line that goes, “…the first thing we do is kill all the lawyers.” Not many people understand the context from which that quotation is lifted, however. In the play from which that line is taken (the name of which escapes me at the moment), two men are planning a coup of the government. Their plan entails removing the current, rightful, government from power, and instituting themselves as oppressive dictators who would use the country for their own personal benefit and pleasures. They claim that their plan is foolproof and will work, but only on one condition. And that is that “the first thing we do is kill all the lawyers.” Lawyers have a distinct history as tools of justice who oppose wrongdoing and battle on the side of righteousness. That precious position is slowly slipping away from us.
It was recognized again at the Nuremburg trials following World War II. Nazi doctors and soldiers protested their innocence and pointedly explained that they were only following the law. The judges made themselves loudly heard and clearly understood that there was an obligation to a higher justice than one laid down by legislatures and parliaments, and sent the wrong-doers off to their executions.
Today, I voiced my concern that modern legal education was draining away this honored position as defenders of justice, and that it was turning out scores of legal mechanics who do not understand why the laws are what they are, to what degree they are bound by an unjust law, and to what principles they should argue when trying a case. Instead, we are mass-producing mindless, soulless, legal automatons, of admittedly varying quality, who can write up a contract, file a divorce, or get you out of paying taxes.
After expressing this opinion, much of the class (although noticeably not the professor, who agreed with me) laughed and dismissed my words. What we must confront are the facts of the world we live in, though. We live in an age where principled disputes are arising with far greater rapidity than ever before in human history. The rights of enemy combatants, issues of privacy, equality before the law, equality in wealth, the suffering of non-human animals, rights or non-rights of the unborn, racial profiling, the propriety of genetically modifying organisms and patenting them… The list can continue, and if our only tool to resolve these issues is the expressed will of a legislature, then we should be alarmed and dismayed.
It bothers me to see so many of my colleagues seduced by the idea of a positivism that frees them from thought and responsibility to fulfill the duties of our once-honored position. The heart-breaking thought is that many of these people surely once had a passion for fairness and justice, but who, through endless repetition of reading cases, have been trained that these considerations must give way to statutes and precedent. Some suggested that since this was how law is now practiced, this is how we must learn. Their way of thought sacrifices principles for payment, passion for pretension, and people for process. It is not a way to live, and in other fields it goes by another name: being a sell-out.
In the past, we have had plenty of skilled lawyers, like Daniel Webster, who could orate on principles and convince a judge that his client was the person with justice on his side. Our lifetime will not be known for the liens we perfect, the property deeds we file, or the petty assault claims we prosecute. We will soon need competent attorneys who can apprehend the nature of justice, fairness, equality, and freedom to solve the disputes for which our era will be known for ages to come.
I’m just not sure we will be ready.
posted by The Academian | 3:06 PM
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