In Defense of Jurisprudence

The following are lecture notes from a talk I gave at Campbell Law School on Jan. 23, 2015

I. Professionalism and the ABA Report, "On the Future of Legal Education"

You might recall the ABA Report on the Future of Legal Education came out last January (2014), which has largely been seen as a call to make “practice ready” lawyers. It describes the consensus view among its authors about the purpose of legal education among this way:

 “Provide legal and related services in a professionally responsible fashion.”

But, what does “professionally responsible” mean in this context? Surely, it means more than that the lawyers do not violate the rules of professional responsibility. What more could it mean?

In her book, The Majesty of Law, Justice Sandra Day O’Connor addresses the professional identity of the lawyer:

One distinguishing feature of any profession, unlike other occupations that may be equally respectable, is that membership in a profession entails an ethical obligation to temper one’s selfish pursuit of economic success [even though that obligation cannot] be enforced either by legal fiat or through the discipline of the market.... Both the special privileges incident to membership in the profession and the advantage those privileges give in the necessary task of earning a living are means to a goal that transcends the accumulation of wealth. That goal is public service.

 Similarly, Daniel Markovits argues in his book, A Modern Legal Ethics, that  lawyers often are confronted with professional expectations— particularly those brought about by the requirement of zealous advocacy (which Markovits calls “fidelity” to the client), to undertake acts that would be immoral for a non-lawyer. Such acts include making misleading statements or encouraging misunderstanding and concealing material information—actions that to the layperson might appear to be lying and cheating.

 Nonetheless, lawyers have an ethical interest in living a coherent moral life— what Markovits refers to as having moral “integrity”—which gives lawyers a desire to resist being characterized as immoral for being overly zealous advocates for their clients.

 Markovitz concludes that any legal ethics capable of meeting the complexity of lawyers' lived experience must be able to respond to this tension, but that the dominant approaches to legal ethics cannot.

 So, there is a widely recognized view that lawyers play a special role in the American democracy, that they are often Socratic Gadflys, who challenge cultural and legal norms;  and that they are called on to act with moral integrity, which makes demands beyond commercial self-interest.

But, this dimension of the lawyer’s education gets scant attention in the Report., which speaks of a fundamental tension between:

·      Public values, described as the values effecting the “competence, availability, and professionalism.”  (NOTE that professionalism is not defined, but a professional responsibility class is mentioned).
·      Private value, knowledge, skills, and credentials.
Education for public service, as Justice O’Connor describes it, is not a value that the Report considers explicitly.

II.       What’s at stake? 

Neither Justice O’Connor nor Markowitz suggest what moral values ought to be taught to lawyers or why it matters that they have them, other than to have some personal sense of coherence and esteem.
 We might look to political theories and history for some insight.  Let me illustrate the point with a bit of video. I want to show a couple of clips from a 2001 HBO movie called “Conspiracy” which featured Stanley Tucci and Kenneth Branagh.  The movie is a dramatic recreation of the Wannsee Conference where the Nazi Final Solution phase of the Holocaust was devised. It draws from the actual transcript of the meeting, which was, essentially a meeting of Germany’s best legal minds.

SHOW CLIPS FROM “Conspiracy”

Time Index for clips:
------------------- [35:34 to 42:07] -------------------------- [1:13:30 to 1:16:40] ------

What can we make of this meeting? What went wrong here that some of the best legal minds of the time were incapable of realizing the moral meaning of what they were doing?

 Some insight can be found in the thought of Hannah Arendt, the political philosopher. During the early 1960s,  the Mossad captured Eichman (played by Tucci) living in Brazil and brought him to Jerusalem to face trial.  Arendt, then a professor of political philosophy, was sent by the New Yorker Magazine to cover the trial. What resulted was a short, intense book titled Eichman in Jerusalem. As Arendt tell the story of the trial, she describes her expectation of Eichman, that he would be a monster. What she found, however, was a thoughtless person who had no intellectual depth or curiosity.  He know the law, but had no moral sense of it. This condition of shallowness she described as the “banality of evil.” Eichman was not a monster. He was simply a petty technician, who could skillfully deliver the trains to the concentration camps, but could not assign moral meaning to mass executions.

 This is an extreme case, but I use it here to make a point about the need for a particular type of legal education. It is a point that is described with subtly and nuanced analysis by Elizabeth Mertz. She is a linquistic anthropologist who used her professional training to examine the discourse that occurs in the 1L curriculum.


  III.        How do we teach “moral integrity”? 

Elizabeth Mertz’s book, The Language of Law School, suggests the pedagogical problem: In essence, her argument is that law professors do a very good job of teaching legal reasoning. They do this in part by forcing 1Ls to set aside the moral discourse of ordinary language, in order to acquire the grammar and syntax of the legal profession. Their normal moral understanding is truncated—the depth of moral understanding is shallower. In short, to train them as lawyers we make them banal in Arendt’s terms. They come to know the reasoning of the law, but at the cost suppressing their moral intuitions.

 What is needed is the perspectives course—a course that gives critical distance to the student in order to create room for moral evaluation and understanding that enables professional judgment. This was the plan put forward in the Carnegie Report. Perspectives courses are intended to reintegrate moral reasoning with the technical skills of legal reasoning in order that journeyman lawyers can achieve the sort of depth and moral integrity that Markowitz and O’Connor suggest to be fundamental to the lawyer’s role in the American democracy.


IV. Why Jurisprudence? 

Jurisprudence courses can provide particularly rich opportunities for such engagement. The reason for this the that the subject matter of jurisprudence is the nature of law itself. One of the central questions of jurisprudence (or Legal Theory, to use the more etymologically correct term) is the correct understanding of the relationship between law and moral norms. That is to say, legal theory has always been an investigation into the moral meaning of law. It has always looked beyond the formalities of legal reasoning and inquired about the nature of legal interpretation.

 Ultimately, questions about the nature of law turn on questions about the relationship between human beings and law. We might ask, what is distinctly human about the work of legal analysis and prediction—especially prediction.
Justice Oliver Wendell Holmes, in his famous address at Boston University, published under the name, The Paths of the Law, puts prediction as first among the goals of legal analysis. What goes into predicting a legal outcome? Analysis of the formal legal rules, yes. But more than that. The legal Realists rightly pointed out that Legal Formalism—the desire to reduce the fullness of legal thought to the operation of formal legal principles, leaves the law open to exploitation by the socially dominant groups. Formalism, the Realists observed, provided the legal justification for social Darwinism, and ultimately the death camps of the Nazis.  The thinking out of thought, as Arendt would say, led to a banal analysis of law that enabled the lawyers of Wanasee to lawfully order mass executions. The banality of evil is shallow thoughtlessness.

It is worth noting here that the eugenics act that enabled the death camps had its origins here in Raleigh at the Eugenic center that existed only a block from this building. And despite the fact that the German drafter was sentenced to die by the Nuremburg Tribunal, the North Carolina drafter, who was decorated by Adolf Hitler, did not receive punishment; the North Carolina Eugenics Board remained in operation until 1977. And the Eugenics Act was not repealed until 2003.

 "We are all Realist now," is a commonplace saying. But in today’s realism, the ideological charges of the past have given way to various attempts to dehumanize, to demoralize law while exposing its latent operative principles. Law and Economics is a an example of the naturalized jurisprudence that has become the object of legal scientism. Human meaning yields to theories of social networks, like Niklas Luhmann’s theory. And, coming soon we will see the arrival of artificial intelligence that can perform routine legal reasoning and argumentation. I will save for another time a report on just how advanced artificial intelligence of law has become, but I will suffice it to say that a recent conference paper of the American Association of Artificial Intelligence and Law described the goal for these developers of producing a device that produces work-product indistinguishable from that of a 1^st year associate. They call it the Legal “Turing-test” after Alan Turning who proposed that artificial intelligence should aim to produce a device that provides answers to general question in a way that is indistinguishable from a human being.

These devices are coming, and they will change the economics of law practice. They will not replace human beings, but they will steal away the jobs that are fit only for shallow legal thinkers. The routine and route forms of legal reasoning will have little value in the marketplace because they can be automated.

Since jurisprudence classes explore what is distinctly human, what cannot be reduced to an algorithmic operation, the provide students with an opportunity for critical thinking about the tools of legal analysis that they have recently acquired.  Understanding this is also a fundamental benefit to students from studying jurisprudence. In the practice lives of our students, they will see incredible change to the society and to their practice. The will need to be more creative and innovative, more adaptable, more flexible in their understanding. In short, they will need to have abstract understanding of law in order to think through the changes they will encounter. Jurisprudence will help them with that too.

V. Conclusion

To close, let me offer a plea for enriching the student with a fine appreciation of legal theory. The hallmark of professionalism is to understand the nature of the professional services that one provides, to have broad and even wise perspectives on how and when and what to achieve with the technical skills and techniques of lawyering. To be professional is to have autonomy and moral integrity. To be a professional is to think deeply and understanding the meaning of one’s acts. To be able to assess the changes in legal practice, to respond to social change with moral integrity and a purposive plan for future action.

 The ultimate value for the professional, as Justice O’Connor suggests, cannot be commercial exploitation. We ought not view the goal of our educational program to be simply to produce lawyers who will be ripe for commercial exploitation. Surely getting a job matters. It why they come. But, we must demand more of them than to allow them to be so enamored of commercial utility that they forego genuine freedom that comes from knowing , understanding, and claiming the values of the profession to be one’s own.  Legal education, in this sense, is liberal learning—the kind of learning that is liberal because it intends to liberate the student from the iron cage of commercial exploitation.

 This then is the aim of a well-planned jurisprudence course. It is not only for the elite lawyer or the Ivy League schools. Its for all lawyers who want to lift up their hopes for themselves, their loved ones, and their communities.