Jurisprudence Talk

ORIENTATION: 

(August 2012)

Welcome to Campbell Law School. My name is Kevin Lee, and I am here to tell you about studying jurisprudence. I want to tell you what jurisprudence is and why it is important to study it. But, before I begin, I want to welcome you to the study of law and tell you a little bit about it.

1.   The first thing that you should know is that law and the study of law is ancient. One of the odd things about studying law today is how forgetful we tend to be of that.  But, law is ancient, and studying law is ancient. Our legal system traces its origins at least to ancient Greece, especially to the Athenians, who viewed their law as one of their greatest cultural achievements. 

This well-deserved pride can be seen in the writing of Thucydides, the author of theHistory of the Peloponnesian War, a work that describes a long war, over twenty years, between Athens and her neighbor, Sparta. Thucydides, at one point, writes about the great hero of Athens, a general and statesman named Pericles, who led Athens in the first years of its dispute against the Spartans. Pericles gives a famous funeral speech to honor the dead at the end of the first year of their epic struggle--it is a speech that Lincoln most likely had in mind when he drafted the Gettysburg Address, since the two speeches are structurally and thematically similar. In his speech, Pericles tells the Athenians that the war is necessary to preserve the Athenian way of life, and principle among the virtues of the Athenians’ is their rule of law which extends beyond the ‘statute book’ to laws that “although unwritten, cannot be broken without acknowledged disgrace.” Pericles held law in high regard, seeing it to be essential for democracy. He held this to be the best form of government because in a democracy the citizen Statesman and the orator (something like a lawyer) could find self-perfection though public speeches and debate.

One of the great tragedies of war for Athens was that during the course of it, they would do unspeakably horrible things--killing innocent women and children, and enslaving unaligned neighbors. To fight their war--which they ultimately lost-- they had to do unlawful and disgraceful things that cut deeply into the heart of the people, and made them question their culture. Subsequent Athenian writing must be understood in the context of this great defeat. Athenian culture collapsed when they lost respect for the rule of law.

Sophocles' epic tragedy "Antigone" is an early attempt to make sense out of the war. It describes the tensions inherent in the law between doing what is right and doing what is necessary. This brilliant work was held in high regard throughout the eighteenth century and was very influential for thinking about the nature of law in the new American democracy. Sophocles was considered to be one of the greatest literary figures in the Western canon, comparable only to Shakespeare. Until 1905, the year that Sigmund Freud published his commentary on Oedipus Rex, Antigone was considered to be Sophocles’ greatest work.

If you don’t already know, in Law School we like to talk about something called Socratic method, whether it has any thing to do with Socrates or not. You will be getting your share of that. You should know that the real Socrates served as a foot solder in Pericles' army. He may have been in the crowd when Pericles gave his funeral speech. Later in life he became known for questioning people who thought themselves wise. So, real Socratic method would have you students asking the professors questions. 

He sought to expose the weaknesses in those who believed themselves to be wise. His approach was to question their foundational presuppositions and try to get them to recall the immortal Truth that he believed we all know innately. 

Plato, Socrates’ biographer and student, says that Socrates was so devoted to the law that when he was unjustly convicted of "corrupting the youth of Athens," he refused the escape offered by his friends because to avoid his cup of hemlock would mean disavowing his belief in the sanctity of law. He was a loyal Periclean, devoted to classical culture that existed before the War.

Plato also wrote a substantial treatise on law and his most famous book, the Republic, in which he took a more positive look at power and developed a dim view of democracy. And, Aristotle, Plato's student, thought that law and justice form the backbone of politics and ethics. Good laws, he believed, are essential for human flourishing.  

When the Romans conquered the Greeks, they assimilated Greek culture. Scholars call this "Helenization" (after the Greek Goddess Athena whom the Romans called Helen). Law was extremely sophisticated and complex during the Roman period and Rome's leading citizens, figures such as Cato, Cicero, and Pompey were lawyers. Their contribution to legal thought remains in many basic concepts that we still employ. Ideas like writing law into a code, the basic duties of agents, and foundational concepts of property ownership are Roman. If not Roman in origin, then Roman by adoption. 

Law was Christianized in the west as the Roman empire fell. Great Christian lawyers include Irenaeus of Lyons, Tertulian, Clement of Alexandria, Ambrose of Milan,  Jerome, Augustine, Gregory the Great, and Gelasius I. Their attempt to understand the nature of law through the Christian narrative was transformative of their culture. Beliefs about the separation of Church and State, the limitations of the power of the king, the basic rights of human beings, and the common good of the community were given Christian forms and took on new meaning as the early Church sought to understand its role as both master of a political order and servant to the lowest pauper and peasant, as was Christ whom they knew as their king who died on the cross only to find glory in the Kingdom of God.

When Rome fell and the Germanic tribes swept into power, they destroyed the written laws of the Romans. If there was a dark age, it was during this period when books were being burned--the library of Alexandria which contain over 750,000 books was lost. And the sophistication of culture and learning that reading enables was destroyed. Germanic tribes had law, but it was an oral tradition built on tribal ideas of honor that lacked the consistency and rigorous application that was characteristic of the Helenized and Christianized Roman law. 

As the political entities of Europe grew in complexity and sophistication, so too did the law. The late legal historian, Harold Berman writes in his influential book, Law and Revolution, that our contemporary understanding of law as an autonomous field, separate from theology and philosophy, has its origins in the medieval Church. The first law school was opened in Spain around 1100. The students studied a common curriculum from whence we get the phrase "common law" or jus commune. It was taught in Church Latin and was an identical curriculum in all of the universities that were founded across Europe from Barcelona to Paris to Krakow to London. The curriculum focused on a work called the Decritum, which is a complex interweaving of scripture and papal edicts with practical judgements and interpretive rulings. The civil law traditions of the European continent have their origins in the jus commune. 

Using the example of the investiture controversy of the eleventh century (a dispute that involved clerical offices being sold), Berman shows how the Catholic understanding of law required that even the pope was subject to it. They believed that the order written into the fabric of Being by God constrains popes and kings to the dictates of natural reason interpreted by medieval canon lawyers. Thomas Aquinas famously describes law is a dictate of reason, authored by the person who has the authority within the community, for the purpose of advancing the common good. The canon law jurists were the interpreters of the dictates of reason, and even the papal authority which rests on the respect given to the pope as Christ's vicar, yielded to the law. 

The idea of human rights, and even the seeds of the rights of women and slaves and native peoples, all find their origins in the medieval period. Brian Tierney at Cornell University, Richard Helmholtz at the University of Chicago, John Witte at Emory, Kenneth Pennington at Catholic University and literally hundreds of other scholars have traced the history of human rights to the medieval jurists who sought to understand the law as a product of natural reason.

The Anglo/American common law was a result of the severing of England from the Catholic church during the English Reformation in the sixteenth century. New ideas about the relationship between the mind and language, and language and the world, were transformative for theology and politics, eventually leading to the Protestant reformation. These changes, particularly what is known as nominalism and volunterism, denied that language is a reliable guide to reality and that God’s will is constrained by natural reason. These developments freed the state not only from the Church, but also from the medieval system of natural law that had constrained the power of the Sovereign.  The modern state sought order in the principles of its own existence. The secular state filled in the domain once occupied by the divine, eventually becoming the totalizing power that Thomas Hobbes envisions in his monumental work, the Leviathan. Lawyers, and the practice of law, shifted in their role in society, looking as the great seventeenth century English jurist Edward Coke {SPELLED C-O-K-E} to found a science of law that would be a shield against the State's claims of earthly omnipotence. 

In the hands of Edward Coke and other jurists, the common law became a check on the power of the State. Coke’s immediate opponent was James I. In a series of cases, Coke attempted to constrain King James and the Parliament with the courts through the exercise of the craft of legal reasoning. Coke’s efforts would eventually contribute to the English Civil War, and his jurisprudence was greatly respected by the Founders of the American democracy. 

A notable example of Coke’s jurisprudence can be found in the famous case of Dr. Bonham, which Coke heard in 1610 when he sat as Lord Chief Justice of the Court of Common Pleas. The dispute involved the scope of the authority of a college in London which had been granted the exclusive right to license doctors by an act of Parliament. Dr. Bonham, who had been trained at Cambridge and practiced in the north, refused to obtain a license from the college when he moved to London. He continued to practice after being ordered by the college to cease. After a while, the college had him arrested and imprisoned. Dr. Bonham sued for wrongful imprisonment. 

In what Coke must have viewed as a routine opinion, he ruled that “in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void...some statutes are made against law and right....” The reaction from the Parliament and from King James was angry, and may have been the cause of Coke’s eventual removal. But, he had placed in motion the idea that the Law itself has the ability to constrain the King and the Parliament through the authority of the specialized reason of jurists and lawyers--reasoning that the King lacked due to a lack of training and experience. Lawyers, for Coke, are the practitioners of a specialized craft whose education as apprentice artisans gives them knowledge that sets them apart from society, granting them authority even over kings.

So, I want to welcome you to a noble and ancient and learned profession. It is a profession that is constituted by special learning--which is to say, it is "learned" in its very essence. Becoming an artisan in the craft of law is the serious commitment that you have undertaken and begun today.

One of the goals of jurisprudence is to make you aware of this ancient history and the importance of learning and artistry in the craft of the law. When we speak of law as a learned profession it is critical for you to see that the authority of the rule of law depends upon the knowledge, learning, and craft of the profession. It is the fact that the law is held in high regard that gives it authority. Law's authority is not simply a matter of coercive power as some theorists, for example John L. Austin, have believed it to be. The authority of law comes from respect and the legitimacy that respect brings. The rule of law therefore depends on legal education. The rule of law, and therefore the American democracy, rests on the responsibility that law professors and students do more than transmit and receive knowledge. More is required than learning the substance of the law and the skills of lawyering, although certainly being technically proficient is a part of it.  

To be responsible to their obligation to society, law schools have the duty of educating lawyers for citizenship in the American democracy. That means cultivating some wisdom about the use of the law and technical skill of practice. It requires that law students develop some understanding of the nature, purposes, limits, and possibilities for law. That is to say, we must develop in you some wisdom about the law. In the old Church Latin, that wisdom about the law is “jurisprudence”  (“Juris” means “Law” and “Prudentia” means the “wisdom to see what is virtuous.”) This is foundational to legal education in a democracy, since lawyers play such important roles, sometimes being called the “stewards of democracy.” 

One of my teachers, the late scholar of Jewish law, Tikva Frymer-Kensky, would say of her work that it must be “learned at the elbow” not at the feet (as with a worshipping disciple).Law school is like that. It is the learning of a craft, at the elbow of an artist, who cares about the craft and the student, and desires to see the student as a productive member of a beloved community.  That was Tikva’s vision for her students.

2.   A second point follows from the first. The study of law is a European and later Anglo/American phenomenon. Other cultures have rules and ordered societies, but the application of the term "law" to these practices must be made cautiously if one is to avoid cultural imperialism.  Ancient China had Confusion rules of social order--very ridged and formal ones--but they are not "laws" in the Western sense. This was a point made clear in the early twentieth century when some legal scholars had professional training in anthropology and sociology--people like the famous University Chicago Law School dean, Karl Llewellyn, who described in his early work work titled On the Cheyenne Way how disputes were resolved among the Cheyenne people of North Dakota. 

Llewellyn and his compatriots in the Legal Realist movement were aware that  a legal system is the  product of a shared legal culture. To illustrate this point, consider two statements: the first is Romeo's statement that “Juliet is the Sun.” The second is the statement that "a corporation is a person." Both of these statements are literally false. Juliet is not the sun, of course, and any reasonable person would know that. And, a corporation is not a person--it is a person only in a formal, legal sense that defies natural reason and common sense. What the philosopher, Stanley Cavell, says of the first statement, “Juliet is the Sun,” can equally apply to both. He says that the statement is not intended for just anyone. It is intended for people who already understand the analogy, and in this sense looks beyond itself for its meaning. It is a statement made for those who already "get it" (like an inside joke) and it invites the listener into a relationship of mutual understanding--it elicits allies. 

The second statement operates the same way, and that says a great deal about the nature of law. Those who understand the formal legal meaning of a "person" will accept it. They "get the joke." But, it is a joke for insiders who get it--who are already in a community where the meaning is shared. The law depends on shared formal meaning and shared understanding of legal propositions. When you hear lawyers speak of "thinking like a lawyer," they refer to this shared understanding and the process of disclosing meaning within the standards of the profession. 

But, legal reasoning isn't enough for lawyering. In fact the whole system of democracy depends on the non-lawyers’ respect for the law. This means that the authority of law depends on the respect given to jurists and lawyers who form the interpretive community of law. 

To illustrate this, consider the reaction to Governor Romney when he stated that a corporation is a person as he was campaigning last spring. To many non-lawyer citizens the statement seemed to confirm the claim of his opponent that he was "out of touch." The separation between legal and commonplace meaning couldn't have been more stark. The law draws from cultural meanings that are shared among legal professionals, but it must also be accepted by the citizenry at large. The rule of law depends on the high regard given by non-lawyers to the learning and wisdom of jurists and lawyers. 

Some of us visited with Justice Sotomayor a couple of years ago. She told this small group of students that she doesn't like lawyer jokes and won't allow them to be said in her courtroom because they weaken the system. They undermine the respect for the law and for judges and lawyers on which the rule of law rests.

Law is respected because it reflects the way a culture has responded to great questions about the nature of the person, the meaning of the state, the goods that can be pursued in common, and those that can only be pursued individually. Many of the deepest controversies in our society today reflect continued disagreements over which alternatives will guide policies that force choices between competing values. Family, personal integrity, health, prosperity, work, property, these are concepts that have formal, legal meanings. They also have broader cultural meanings than are known in their ordinary use. For most folks, they point well beyond their conceptual boundaries to greater realities. They are like fingers pointing at the moon (a Buddhistic aphorism). This sense of mystery was noted by William Blackstone, whose treatise on law was Lincoln's textbook. Blackstone sought to make law into a science, but he also argued that it must maintain and preserve the mystery of the person if it is going to be accepted as authoritative.

The question--the continual question--for all responsible citizens who are learners of the law is this: do the cultural choices we encounter broaden and refine the resources of the human spirit? (Steiner, 5) Is our law good? Does it meet our needs and encourage human flourishing? Is our state living up to our expectations for it, or is it like Athens, cutting its own throat? These are questions that are essential to the rule of law because  they give law authority that withstands the claims of immediate need and the threat of coercion. 

It follows, and it is of vital importance to realize, that the rule of law is specific to a culture--it is a cultural response that gives law authority. As Oliver Wendell Holmes Jr., the most famous Supreme Court Justice, views it--law is the product of cultural evolution.  For that reason the student of law and the practitioner should have sensitivity to the particularness of the rule of law. This is essential in the closely networked world we live in now. One cannot expect the rule of law to exist for the Cheyenne or the ancient Confucians or Islamic political theorists as it does for American lawyers. This is a point underscored in the work of the late Edward Said, whose work is sharply and rigorously critical of the development of the concept of the “oriental” in Western Europe.  We cannot expect the values of those with other cultural contexts to be like the values of American lawyers. Democracy is the result of a particular history. It is not easy to transplant. This was the lesson Napoleon Bonaparte learned when he invaded Egypt, and it is a lesson that we are still learning in Afghanistan, Syria, Iran, and much of Africa. Liberty is a value, and people long to be free, but there are many forms that freedom takes.   

Respect for foreign laws is increasingly necessary in legal practice. A recent survey of a wide variety of practicing lawyers found that about 50% of all lawyers encounter a transnational legal issue each year. That's everyone from corporate lawyers to small town tort litigators. Over the course of a career, most lawyers will work with other legal systems and people from other cultural settings with very different expectations about law and the possibilities for justice, truth, and the common good. 

A case in point here is the development of Islamic Finance over the course of the past 20 years. Today, Islamic finance principles control enormous pools of money. It is loaned and traded in currency, debt, and equity markets through funds managed by Islamic lawyers at places like Goldman Sachs. It finances American companies with Muslim owners, like Caribou Coffee. Many law schools (even a couple in this area) are starting courses on Islamic finance and major publishers are rushing textbooks to market. 

A responsible Jurisprudence class will set as its goal to liberalize the student. I mean this in the classical sense of liberal education that teaches the student to be aware of his and her cultural presuppositions. Law students need to be aware of the presupposition that are foundational in our legal system, so that they can freely question them. This is the goal of liberal learning. It is part of our mission statement at Campbell. Today educated lawyers  need to be keenly aware of the presuppositions they bring to their craft and to be defenders of the values they reasonable understand to be essential to human flourishing. Beyond the banality of well-rehearsed slogans and partisan arguments, lawyers must be self-critical and reflective thinkers. Jurisprudence is essential to cultural and inter-cultural understanding, and this is fundamental to being wise about the law in the globalized, rapidly changing society that we live in now. 

3.  The third point that I want to make should be clear from the foregoing considerations. The study of law is not simply about learning some useful knowledge that can be sold in the marketplace for legal services. 

Here I want to draw a distinction between two metaphors for the academy. One model likens the law school to a factory. In this model, students are raw material to which value must be added, by shaping and molding the student into a product for productive use.  This model has been gaining ground recently with the ABA. In many respects this seems to me like an overreaction to the 2008 recession--it is what you might call "quack" pedagogy:  the idea that we should be most concerned with skills training and placement statistics. According to this model, the law schools’ primary purpose is to produce a product that must serve the market for legal services.

Recently, I actually heard the Associate Dean of a major law school refer to her students as the “Product.” She is not alone, there is a growing trend throughout American education to view the students this way. Some argue that this trend can be traced to the late nineteenth century. Anthony Kronman, who is a former dean at Yale Law School makes this claim in his book, The End of Education. Others, like Columbia University religious studies professor Mark Taylor, trace the trend to Immanuel Kant, who wrote in his 1798  work, Der Streit der Fakultaten (On the Conflict of the Faculties) that universities should “handle the entire content of learning by a division of labor so that there would be a specialist for every branch of knowledge.” This idea of a division of labor, of course, invokes Adam Smith’s pin factory. This is the factory notion of education that looks to specialization as a means of achieving economies of scale. It is not at all clear that it works for educational institutions, particularly in the current conditions of globalized and networked communications.

There are several flaws with this model that seem to get overlooked despite their obviousness. First, this  view implies that the student is an inert object that can be packaged for retail at the end of an assembly line. Students are commoditized--turned into products for consumption by someone else. The problem with this view of course is that human beings should never be treated as objects. They are never merely “means to an end,” as philosophers and theologian have always argued. Treating them in this way dehumanizes them and devalues them. It would be against any reasonable understanding of the Christian mission of an institution like this to go down that path since it is basic to Christian belief to view all persons as having intrinsic dignity as bearers the image of God  (the imagio dei). And,it is not a liberalizing view in the sense that it does not seek to set the student free--to cultivate the autonomous thinking and independence of student. It does not cultivate wisdom or ask the student to engage in the type of democratic discourse that Pericles viewed as transformative and perfecting. 

It is also, ultimately, a self-defeating model for legal education, since the types of very basic skills that will get a recent graduate hired are not going to be helpful in developing a career for the long run. In fact, it is not clear that it helps much even in the short run in some fields. In corporate law, for example, a well-trained and experienced paralegal will be able to out-perform a new lawyer in the basic tasks of contract review, document drafting, etc. and do it at half the price. Also, those entry-level skills will be the ones most easy to outsource and automate. Students get hired for their potential to be wise and trusted council. But, to have that potential you need to be educated at the elbow of learned professors who are active in thinking through and writing about the fundamental questions about law in their fields. 

Moreover, the basic skills change so quickly. I have a friend who did a dissertation in computer science that consisted in a box of punch cards. Change is a fact of life. This is probably more true now than at any time in human history. The rate of change in the globalized society in which we live is enormous. That the rate of change is accelerating is, in fact, the only constant. Change leads to more and faster change. The application of, essentially, nineteenth century models of economies of scale to the creative demands of the artist’s studio will not lead to a better product. Scott Hamel, a management professor at Harvard Business School, argues that the application of these techniques actually acts against creativity, which comes from cultivating unique relationships among those closest to the problem at hand. Uniformity imposed from above is unable to generate innovation, even over the short term. 

The alternative to over indulging in skills training is to educate the whole person. When I was a student, many years ago now, I had a professor who when he was asked what he did for a living, would say, "I teach." And when asked what he taught, he would say that "I teach students." That’s “old school”--it is a reminder that you are not products for me, or something to be used for my good, or the good of the school, or even for the good of future clients. (Let me be clear here. Serving clients selflessly is noble if done voluntarily, but not if it is done at the expense of individuality and autonomy). You are independent thinking human beings with intrinsic dignity and worth that must be honored. For me as your teacher, to think of you otherwise would be to do an injustice to you--to the mysterious miracles that each and every one of you are. 

And, so, there is no certainty that our society needs (or even wants) the “product” of law schools if that product is uncreative and unimaginative and lacks self-criticism. The thoughtless lawyer who is just following orders from the client exemplifies what Hannah Arendt called the banality of evil--the thoughtlessness that makes anything acceptable. The problem with the factory approach to legal education is that it cultivates banality. It functions in the interest of the law schools and of the law firms at the expense of the long-term interests of students and the needs of society for sagacious citizen lawyers. In the long run, it undermines the rule of law.

The other possibility is the one I’ve been suggesting that lies at the very core of teaching jurisprudence. It is the ancient vision that sees legal education as taking place at the elbow of the artist in the artist’s studio workshop. It is a place where people have the leisure to study, think, read, and speak with one another about things that matter--a place for “learned discussion, disputation, leisure.”   In this ancient vision, at the Law School, we work in a kind of “artist’s workshop” where the tools of argument, evidence, knowledge, logic, linguistic proficiency, conceptual analysis, methodological  self-consciousness, scrutiny, writing, creativity, reconsideration, refutation, and reflection are employed in a craft. The wisdom of law is learned around a seminar table, with professors and students, each and all, responsible for reading, translating, arguing, and making the case of the interpretations, arguments, and conclusions they are making, and for showing why they matter. And there is artistry in that. 

Jurisprudence calls on us to consider ourselves and reflect on what we are doing as lawyers and as public citizens--to think about the meaning of the arguments we make, the projects we undertake, and the lives we create for ourselves and our communities. In this sense, it is still a form of prudence--of seeking wisdom through reflection. And, for this reason, it lies at the very core of the profession. 

Finally, I will leave you with a warning: there is beauty and mystery and artistry in the law. It is there if you know where to look for it. But, like any great artist, a great lawyer must suffer for the craft. There will be sore necks and bleary eyes. There will the pain of being stood up in class. There will be sleeplessness and paper cuts. But the rewards of this profession are immense. Being known as a person of substance, respected for your learning and knowledge, valued for your judgment and vision. This is the contribution you can make in service of a community of persons. This is the reward you should seek. Wealth, fame, and power are possible, but without contribution they are meaningless. 

So, I want to wish you good luck. Since I don’t teach first year students, I won’t be seeing you for a while. But, my door is open, if you want to talk. So, study, learn, and grow as lawyers. And I’ll be seeing you next year.