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< | Law and Morality: Lady Justice’s Doubled-Edged Sword | >
> | A Lesson in Morality | | | -- By JenniferGreen - 26 Feb 2010 | |
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< | Logic Games | >
> | An Antiquated System | | | | |
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< | “The training of lawyers is a training in logic.” – Oliver Wendell Homes | >
> | The intellectual transformation that marks the beginning of one’s journey to becoming a life-long student of the law is, at once, disorienting and exhilarating. In the process, it is implied that one must cast aside their way of thinking about legal issues as a lay person would, undoubtedly shaped by instinctive feelings of what is right and wrong. Instead, fidelity to the law is the golden standard, unencumbered by the emotions, passions, and biases that color the lens through which one views the world. Instead, it is the law “all the way down”. In truth, this view of the law protects the citizenry from the whims and prejudices of an unaccountable and, some would say, out of touch body that wields a significant amount of power. However, when terms such as “empathy” are decried by some as a negative attribute of judicial philosophy, it is worth inquiring to what extent we are advancing a pure and adulterated interpretation at the expense of one with a more humanistic touch? | | | | |
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< | The process of becoming educated in the law is a metamorphosis, with the one of primary ends being the ability to “think like a lawyer”. In the midst of this transformation, it is critical that first year law students, subsumed by the process, do not lose their gut. | >
> | This country, for all that she has become and is becoming, has a checkered history of using the law as a tool of oppression. While it is noteworthy that this history has not been omitted from legal education, a pedagogical approach that reduces these decisions to mere considerations of stare decisis undermines the development of what it truly means to “think like a lawyer”. And that is not only the ability to conduct sound legal analysis, but also the willingness to be a vigorous advocate for certain principles simply because it is the right thing to do. | | | | |
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< | “Being a great lawyer is a balance of going with your gut and being able to do the academic stuff.” – Professor, Columbia Law School | >
> | Normative standards of right and wrong are, admittedly, fluid and subject to wide disagreement. In conceding this, I still maintain that there are certain aberrations of justice, based purely on societal standards of morality, that never should have been or never should be defended. Cases such as Dred Scott, Plessy v. Ferguson, and Korematsu v. United States, are prime examples of such aberrations; still, even after this nation has evolved to a point where such a decisions are unequivocally repudiated, they still find defenders and justifiers among students and practitioners of the law. Even in my recognition that reasonable people can legitimately disagree, I find this problematic. In the context of legal education, the risk is that law schools create an environment whereby one’s conception of themselves as a legal scholar is distinctive from their sense of human intuition and morality. Unfortunately, the consequences of such dissociation can be grave, and have negative social implications. | | | | |
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< | This wisdom was shared with me by a professor to whom I expressed disdain about the robotic deference to flawed legal reasoning that I have, on occasion, observed in first year courses. Constitutional law is replete with decisions that are, in some cases, based on sound legal precedent, assessment of legislative intent and adherence to constitutional principles. Yet, some are just blatantly wrong and no further explanation should be necessary. What many consider to be aberrations of justice – such as Plessy and Korematsu – are subtly defended by the law student eager to demonstrate his mastery of the law and to show he can divorce himself from the passion that moves political currents. In so doing, he argues that segregating prison populations on the basis of race alone is sound violence-prevention policy, or that Japanese internment camps were not “that bad” because, from a cultural perspective, the Japanese were honored to sacrifice themselves for their mother country. In pointing out such commentary, I do not mean to suggest that there is no legitimate space for disagreement on the overwhelming majority of issues, especially those of a political nature. However, the wave of public opinion has firmly denounced this country’s ugly history of discrimination on the basis of race and ethnicity, and there is absolutely no room for even playing devil’s advocate. To be fair, law professors seem to take great pleasure in backing students into a corner and, in so doing, challenging them on what the law was or is. Holmes recounts his interaction with an English judge, who admonishes, “You are discussing what the law ought be…” A pedagogical approach to legal education that fails to give equal consideration to what the law is and what it should be ill-equips new generations of lawyers with the tools to fully appreciate and improve the law in a changing social landscape. | >
> | Split Selves | | | | |
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< | The Double Consciousness of a Law Student | >
> | The process of become educated in the law sometimes has the ill-effect of creating a sense of split selves. This is not only because of a general reluctance to engage in conversations about the social implications and policy considerations of court decisions, but also because the lenses through which students must learn to legally reason are often colored by moral shortcomings. Whether one believes that the law is inherently flawed, or that the legal behemoths who laid the foundation for how the law is interpreted knowingly distorted it, it simply cannot be ignored that there is a history of contradictions and hypocrisy. If we, as a society, are truly interested in allowing all citizens to have access to the law as a medium through which to advance social good and change, we must begin with this recognition. However, it does not end with mere acknowledgment; lawyers, as emissaries o this change, must be willing to advance the causes and “take up the good fight”. There is a gaping hole in legal education in that there is little done to reconcile the flaws and distortions of the past with the notion that the law can be used as a positive force for change in the present and future. Given this, it is no surprise that the path of least resistance for young lawyers is to enter an area of practice that stands to undermine this potential for positive change. | | | | |
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< | While the sentiment, “That’s just wrong” is not a sound legal argument attempting to rationalize the irrational is an exercise in futility. Instead of following one’s own moral compass, law students are forced to reason through the lens of men who, quite frankly, lack credibility due to their own double lives. Thomas Jefferson, the author of the Declaration of Independence, best exemplifies this phenomenon. While writing that “all men are created equal”, Jefferson owned slaves and fathered at least five children with his slave mistress, Sally Hemmings. I personally find this hypocrisy to be offensive; yet, as a student and future practitioner of the law, I must search within myself to find legitimacy in a document that, though inherently flawed, forms the basis of this country. | >
> | The struggles we presently face are, admittedly, not like those of the past; however, there gravity cannot be discounted. They demand a new generation of lawyers who have not divorced themselves from a sense of social responsibility as agents for advancing what is right. With its historical flaws and past shortcomings, it is only when confronted with lawyers who do not abdicate their responsibility – or moral duty – to lend their expertise that the legal system will evolve into something that more closely aligns with our present values and ideals. | | | | |
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< | Presently, there are significant disparities in the application of the death penalty based on the race of the defendant and the victim. This plank in the eye of the system undermines the notion that justice is blind and all citizens are equally protected under the law. Yet, at the heart of the criminal justice system – and I would argue the legal system as whole – is the belief that it works; that is, that it applies its hand equally. Furthermore, one is often told that, in part, one’s role as alawyer is to reaffirm this belief in the client. After all, if this general principle was not the case, what good is the lawyer anyway? Why would people not just resort to self-help measures? As a law student, learning to reconcile these two often competing conceptions of the law – one as an historical tool of oppression and the other as a key to liberty – is an ever-evolving process. Notwithstanding the inconsistencies, I choose to lean towards the latter, more positive conception. Otherwise, allowing thoughts of the negative implications to dominate would, in the short- and long-term, make me a worse lawyer, not a better one. | >
> | Charting our Path | | | | |
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< | Law infused with morality | >
> | Given that lawyers play a significant role in regulating society and the global economy, it is imperative that law schools adequately equip future practitioners not only with the skills necessary to “think like a lawyer”, but also with the moral sense that recognizes the enormous responsibility the profession bears. We need only look to a recent event, the collapse of the financial markets and the ensuing devastation, as an example of lawyers placing bottom line margins ahead of a moral duty to advise clients to conduct their business in a prudent and honest manner. This, of course, is not to suggest that any institution must bear the blame for tragedy caused by past matriculants. However, law schools – which are in the business of training lawyers – are the most appropriate forums to marry the acquisition of legal knowledge with the development of one’s moral self. | | | | |
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< | Like Holmes, I believe that law is distinct from morality; part of my inquiry is to assess whether this should be the case. There are many conceptions of what morality is; I argue that we all have our personal sense largely manifested in our politics and beliefs. This might be what one would refer to as their “gut”. Then, there are guiding principles that have led America to where she is today, and to where she should aspire to go in her never-ending journey. These are not one in the same; yet, many, including myself, fall prey to conflating the two. It is the aggregation of individual senses of morality that change the tide of public opinion and shape the societal sense. For example, denying women and Blacks the right to vote, compulsory segregation and slavery were all legally and morally accepted – individually and societally – even up until half a century ago. Today, I firmly believe that one’s sense of individual morality is inherently flawed if it includes a belief that discrimination on the basis of gender, race or ethnicity – immutable characteristics – is acceptable.
The extent of my argument does not extend much beyond this because, to some extent, where personal politics ends and morality begins is hard to distinguish. Regardless of terminological distinctions, a primary aim of legal education should be to enhance and develop law student’s moral. In our quest to demonstrate that we can “think like a lawyer”, we should never become so robotic in our acquisition of legal knowledge that we ignore our gut instincts about what is morally right or wrong. | >
> | Current law students are in a unique position to be at the forefront of a movement that demands that law schools play a role in changing the paradigm. It begins in the classroom, but it certainly does not end there; and a semester-long MPRE course is not sufficient, either. As law students, not only do we need to make demands of legal institutions and the profession, but we can also begin to generate the change ourselves. |
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