Author Archives: Harrison Sheppard

LEGAL EDUCATION

Published in Vital Speeches of the Day, April 1998

I. Introduction

It is a special pleasure to have been invited to speak to the Yale Club.  I never attended Yale, but it has important associations for me directly related to what I am going to talk about. I went to Law School here in San Francisco, at the University of California’s Hastings College of the Law.  The only law professor with whom I  established any real rapport as a student was a Yale graduate and former member of the Yale Law School faculty: Professor Roscoe T. Steffen, for whom I worked as a legal research assistant.  Prof. Steffen was born in Montana in 1890.  When he was a Yale Law School student, he attended  Constitutional Law classes given by William Howard Taft, between the time Taft was President and the time he was appointed Chief Justice of the U.S. Supreme Court.  It was as a result of a recommendation by Prof. Steffen to the Attorney General of the United States that I began my own legal career as an attorney in 1967 with the Antitrust Division of the U.S. Department of Justice in Washington, where Prof. Steffen had also served.

The second association with Yale that has personal significance is even more directly related to the subject of my remarks.  The present Dean of Yale Law School, Anthony T. Kronman, has written what I believe to be the best of many books that have been published during the past decade about the decline in standards of legal practice in America: The Lost Lawyer: Failing Ideals of the Legal Profession (Harvard University Press, 1993).  In my talks around the country to State Bar associations (and at  Annual Meetings of the American Bar Association) to discuss the critical need for change in American legal education and practice, I regularly cite Dean Kronman’s commentary on the progressive loss of what he calls the “lawyer-statesman ideal” as the model of legal practice.

It is therefore my impression, for these and other reasons, that the dominant Yale ethos –perhaps it is not even going too far to say its spiritual outlook-is much closer than that of other law schools –for example, Harvard’s– to what is needed to re-inspirit the American legal profession in needed directions.  What I mean by that I hope will become clear by the conclusion of this talk.

II. Prevalent Lawyer Practices

The assigned topic is “The Need for Change in American Law School Education.”  In addressing this topic, I do not wish merely to inform this audience.  I want, in addition, to alarm you.  For it is my opinion, after having studied the issue  intensively for some years now, that the present typical behavior of lawyers, if continued unchecked and untransformed, seriously jeopardizes the future health and security of our most important civic institutions, and imperils the ultimate object of our form of government which, as stated in the Preamble to our Constitution, is “to secure the Blessings of Liberty to ourselves and our posterity.”

In order to describe the specific needs for change in legal education, I will begin with some observations about the state of legal practice.

Lloyd’s of London has estimated that “lawsuits arising from the dreaded ‘millennium bug’ [the inability of computers to recognize dates beyond the year 1999] will top $1 trillion in the United States alone.”1  Leaders of the computer industry, however, take another view of things.  “’When I talk to people [about the millennium bug problem],’ Harris Miller, President of the Information Technology Association of America says, ‘unless there’s a lawyer in the room who’s trying to make some money out of it, nobody’s talking about legal liability.’  He says his Association is doing as much as it can to educate and raise people’s awareness of the problem. ‘We think that’s how you deal with this issue.  You get it solved rather than hypothesizing about liability issues’.”2

The difference between (1) a litigious and (2) a problem-solving approach to difficult situations is precisely the difference between what is now ailing the legal profession–with actually adverse, and potentially disastrous economic, social, and political consequences– and what needs to happen for the profession to correct itself.

One economist has loosely estimated that the cost to the public in unnecessary litigation is about $320 billion per year.3   And I have seen published estimates of the number of lawsuits filed each year in this country –of every kind– as high as eighty million.  These figures do not appear to me to be at all fantastic.  They are rendered credible by more well documented figures such as, for example, the figures of the Bureau of Justice Statistics of the U.S. Department of Justice in its analysis of case dispositions in its Special Report, Civil Jury Cases and Verdicts in Large Counties 1, July 1995. The Department’s Special Report analyzed case dispositions in 762,000 contract, tort, and real property cases filed in one year in the 75 largest U.S. Counties.  That’s more than three-quarters of a million cases, in the 75 largest counties, in just three areas of the law.  What is really interesting, however, about the Special Report, is what it indicates about the wastefulness of litigation in the United States.  For out of those 762,000 cases, only 1.5% were tried by a jury.  Voluntarily settled cases (61.7%), and cases that were either dismissed (10.8%) or resolved by summary judgment (3.7%) comprised more than three-quarters of all filed cases (76.2%).

At first glance, one might suppose that these figures describe a good situation.  After all, only 1.5% had to be tried.  But consider: what legal expenses were incurred before the case settled at the courthouse door?  They were enormous.  For the fact is that use by lawyers of the formal pre-trial procedures called “discovery” and “motion practice” constitute a typically and notoriously wasteful abuse of contemporary legal practice.4  Indeed, I doubt whether there is a single lawyer of sound mind in the United States who would not admit (off the record and over a drink, for example) that in the vast majority of cases –even relatively complex cases– if opposing counsel were able to deal with one another with consistent discreet candor, forthrightness, and reason, they could resolve their cases in one-tenth of the time it takes to resolve them through the formal adversary methods of legal practice.  And I will testify myself, after thirty years in government and private practice, that I have only very rarely encountered a case that couldn’t be so settled if clients were counseled properly by their lawyers, and lawyers were properly trained to approach situations of conflict with reason instead of testosterone, greed, or well-intentioned bad habits.

The truth of this assertion was illustrated –in fact, I would say it was demonstrated— for me, in my very first case in private practice.  In that case, in which I was plaintiff’s counsel –reluctantly bringing the matter to litigation because the defendant’s lawyer refused even to talk to us about the problem–  liability was fairly clear and the only real issue was damages.  I offered to provide the defendant’s lawyer voluntarily with a full statement of the legal theory of the case and documentation of my client’s damages.  The defendant’s lawyer was being paid by an insurance company.  He insisted upon taking depositions of both parties and conducting other formal discovery over a period of nearly two years before agreeing to a mediation, in which the case was settled in half a day —for more than five times the amount my client was willing to settle for if the case had been resolved immediately as we had proposed, without formal procedures.

When I went to defense counsel’s office to pick up the settlement check, I asked him why the case couldn’t have been settled through the methods we had originally proposed.  Justifying his insistence upon formal litigating procedures, he said “Well, that’s the way the system is supposed to work.  It just didn’t work well in this case.”  This point of view is, in my opinion –as it is in thousands upon thousands of cases like it that are litigated every month in this country — either nonsense –self-serving nonsense– or an admission of incompetence.  The file was probably just “not thick enough” for the insurance defense law firm to bring it to the insurance company adjuster until it had at least two (essentially unnecessary) depositions in it and reams of other (essentially unnecessary) discovery documents.

The costs of such unnecessary litigation add billions to the cost of living in the United States; billions to the costs of virtually every product and service offered.  Fear of medical malpractice claims, for example, has been estimated to add between 7 and 20% to our national medical bill through strictly unnecessary defensive medical practices and procedures most physicians would not otherwise prescribe.5

III. The  Constitutional & Political Problem Posed By Adversarial Legal Practice

It is not, however, the economic costs of grossly excessive use of  formal adversarial legal practices by lawyers that is the subject of my greatest concern.  Nor, as a lawyer, is it the fact that the more contact people have with lawyers, the less they like them.6  Nor is it even the fact that  lawyers themselves may now constitute the most depressed professional group in the country and are, in increasing proportions, dissatisfied with their choice of career.7  Rather, the greatest concern I have –which is a matter about which I believe we must all be or become concerned– is that most lawyers are no longer even aware of the fact that their most important function is to serve as the guardians of our Constitutional system in all that they do in both the public and private practice of law.8   And, moreover, that what is now a virtually universal ignorance or disregard of this fact may already be jeopardizing the maintenance and security of our most fundamental national purposes as articulated in the U.S. Constitution.

The authors of our Constitution comprised a constellation of thoughtful political architects probably without precedent in history.  When they enunciated the purposes of our Constitution in its Preamble, they did so very carefully, with strict regard to the order of priorities our republican system is supposed to serve.  That Preamble declares our national purposes to be as follows:

“We the people of the United States, [1] in order to form a more perfect Union, [2] establish Justice, [3] insure domestic Tranquility, [4] provide for the common defence, [5] promote the general welfare, and [6] secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America.”9

 

The first of our declared national purposes under our Constitution was “to form a more perfect union” out of the diversity of our people and the separate States.  We may now pride ourselves on the diversity of America.  But even at the end of the 18th century, the thirteen original States were also a “diverse” group.  Without the technology of modern communications and transportation, without the homogenization of culture now made so possible by electronic mass media and multi-national corporate enterprise, the people of 18th century Massachusetts and New York lived in a markedly different culture from the people of 18th Century Georgia and South Carolina.  The very first purpose of our Constitution was to bring together this diversity in a [1] “more perfect union,” since our Articles of Confederation had so conspicuously failed to achieve that.  This is a purpose that  remains as critical now as it was then.  The present diversity of the people of the United States, now still living together in relative harmony, is something of a political miracle.  But our “more perfect union” may now again be threatened by forces working to tear it apart, under the leadership of litigious lawyers serving an unnecessarily litigious public.10

Once the Constitution has formed a “more perfect union” among our people, its very first governmental objective is [2] to “establish Justice.”   That purpose, note, is not to “establish law;” for that is presumed. It is to establish Justice as the first object of our basic law.  And whatever theories of “justice” may contend with one another, its core meaning is to give to each his or her due, not to give to each only what superior power or wealth or aggressiveness may choose or refuse to give.

The second object of our government (assuming a United States) is [3]  “to ensure domestic Tranquility.”  That is, once the union is assured, and our basic legal institutions organized to establish justice, the aim of our government is to insure tranquility among our people so united.  This necessarily implies that use of the law as an instrument of discord, division, and battle, rather than as an instrument of peacemaking, where reason may find the means to make peace, is contrary to one of our Constitution’s prime purposes.  The lawyer as problem-solver, conciliator, and peacemaker is faithful to this purpose.  The lawyer as Rambo litigator with a private self-sworn oath “to take no prisoners” and assert a client’s rights to his or her last dime –even where peace may be purchased, with reason, much more economically– is an unfaithful enemy to this Constitutional object.

Given a well-united people, living under laws designed to establish justice, in  domestic tranquility among ourselves, the Constitution turns its attention to our [4] common defence and [5] general welfare. These five stated Constitutional objectives are the predicates for its highest political goal: [6] “to secure the Blessings of Liberty to ourselves and our Posterity.”

IV.  The Need For Change in Legal Education Toward A Problem-Solving, Peacemaking Model of Legal Practice

Before relating this summary of our fundamental Constitutional purposes to the problem of legal practice and legal education in America today, permit me to interject a relevant personal note.  Like tens of millions of other Americans, I am the grandchild and great-grandchild of immigrants.  I have visited the lands my forebears fled, escaping tyranny and persecution.  There is hardly a day that goes by that I do not thank them for giving me the privilege of having been born here.  My travels around the world have consistently confirmed me in my happiness at being an American who has, throughout his life, enjoyed “the Blessings of Liberty” which have been secured to me.  I am pleased and proud, not only to be an American, but to be a lawyer in a land where, as Lincoln put it “reverence for the law” is and should be “the political religion of the nation.”11   At this latter stage of my life, its sunshine comes most copiously upon me in the persons of my two grandchildren.  I hope that they will be able to enjoy, at least as much as I have, the “Blessings of Liberty” our Constitution is designed to secure for them.

But the recently emergent typical behavior of lawyers gives me cause for anxiety on their behalves.  Every American lawyer, when admitted to the bar to practice law, swears (or affirms) an oath to uphold the laws of his or her State and the U.S. Constitution.12   This oath has, for many –I fear, perhaps most– attorneys become a ritual whose meaning is ignored, disregarded, misunderstood, or forgotten.  The proof of this could, I think, be simply established by discovering the number of attorneys who will confess it to be their Constitutional duty, as officers of the courts, privileged to interpret, advocate, administer, and enforce the laws of the land, to help “establish Justice, insure domestic tranquility…and secure the Blessings of Liberty to ourselves and our Posterity;” and the number of attorneys who will confess that a failure to use, with persistence and determination “to the best of their knowledge and ability” all the problem-solving, peacemaking, and conciliatory skills they have to help achieve these objectives, is a violation of their Constitutional oaths and a profound infidelity to the spirit of their calling.

The epidemic failure of members of the American bar to hold these purposes firmly in the front of their minds in all that they do as lawyers, is a failure which threatens to undermine the maintenance and security of our Constitutional purposes.  In contrast to the frightening possibility of a post-civil society in America, we all must hope that the third century of our American republic will be likely to follow its first and second as world-historical miracles of stability, prosperity, and progress.  But our  hopes, I submit, will ripen into expectations only if enough members of the American legal profession come to recognize in time their critically catalytic role as the secular ministers of American democracy.  That is in fact the role to which lawyers have been appointed by the American public:

“American lawyers work in a society that has chosen to thoroughly legalize itself.  Alexis de Tocqueville noticed over a century ago Americans’ temperamental inclination to turn political, economic, and social problems into lawsuits. Thus the diversity and complexity of the lawyer’s work simply reflects American law as a political institution because of the kind of society twentieth-century Americans have constructed for themselves.”13

Ancient and modern history show that when conflict among sharply differing factions in democratic societies grows, and legal institutions become inadequate to resolve them harmoniously and peacefully, the result is either authoritarian government or mob rule.  Where violence in a society increases beyond a certain point, it is sad, but true, that most people will trade their liberties for greater security.  Tocqueville also recognized this, as well as the essential role a prudent legal profession must play in maintaining the liberties of a republic.  Speaking of lawyers (who were then exclusively men), Tocqueville wrote:

“I am not unacquainted with the defects inherent in the character of that body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained; and I cannot believe that a republic could long subsist if the influence of lawyers in public business did not increase in proportion to the power of the people.”

Tocqueville was not talking about Rambo litigators.  His words may be understood to suggest that American democracy may survive and prosper in the 21st century only if we lawyers learn to do more than ever before to help harmonize our miraculous American diversity.  This is a challenge for lawyers to think of themselves, and to act, as peacemakers first, peacemakers second, peacemakers third, and as warriors only in the very last resort –remembering, and taking very seriously, their Constitutional oaths.14   For if we lose our American Republic, it will not be conspicuously, in a tyranny of chains and dungeons.  It will be quietly, and gradually, out of a concern for our physical security precipitated by rising social discord and violence until, as Tocqueville puts it, our people become “timid and industrious sheep, of which the government is the shepherd.”

And this brings me to the main point of this talk: the inadequacies of contemporary legal education to help lawyers carry out their responsibilities as the guardians of our Constitution.

The dominant model of American legal education remains one in which students are taught how to argue aggressively, with no quarter given or taken, and how to fight an opposing viewpoint with uncompromising technical skill.  Fewer than 4% of American law schools require their students to take even one hour of training in negotiation as part of their learned skills.15    American law schools remain on the whole exactly the kinds of institutions you would create if you wanted to promote a kind of civil war instead of civil peace.  Law schools are not schools for resolving conflict harmoniously; they are schools to help promote profitable conflict.16

Given the increasing polarization of our marvelously diverse society, it should be considered a national scandal –if not a national disgrace– that law students are permitted to graduate from law school without being required to learn skills needed to help them resolve, rather than exacerbate, conflicts wherever possible; that they are not required to learn advanced techniques of successful problem-solving, peacemaking, win-win negotiation; and that they are, instead, encouraged to see themselves chiefly as aggressive warriors, rather than primarily as civic-minded peacemakers.

V. Conclusion

I will conclude this talk by addressing you directly, as alumni of Yale University; to plead for your active engagement in this cause, in every way you may be capable of participating in it: through the demands you make upon your own attorneys; through the support you may give to the efforts of Dean Kronman to help alert the American public further to the dangers inherent in permitting “the failing ideals of the legal profession” to fail utterly; and in every other way you can to help move legal education toward a peacemaking model in faithful adherence to the expressly stated purposes of our American Constitution and our republican form of government.  Let each of us do our duty to “secure the Blessings of Liberty to ourselves and our Posterity.”

 

(c) 1998 Harrison Sheppard

 

 

Decline of American Legal Practice

 

Wednesday, May 26, 2010 Talk: Economic Roundtable[1]


I’m going to summarize for you the most important things  I have learned about successful conflict resolution during more than 40 years of experience in both public and private legal practice, and contrast it with what has become typical American legal practice.

Winston Churchill called his history of World War I The World Crisis.  What a prophet he was.  World War I was indeed a “crisis;” a cross road in which the great powers of the world took a decisive wrong turn leading to a new European order.  A reading of Churchill’s account of the senseless slaughters of World War I combat is likely to strike contemporary readers as utterly incredible.  How could the leaders of what were supposedy the most civilized nations in the world  continue to consent, over a four year period, to sending hundreds of thousands of young men to their certain death or mutilation in battle after battle after battle?  It was war by attrition, as deadly for the supposed victors as for the vanquished.

The greatest troubles of world history as measured by death and destruction found their culmination in the 20th century with the deaths, mutilations, and displacements of hundreds of millions of people throughout the planet.  The saddest stories of world history are, in other words, the stories of attempted conflict resolution by war. As Albert Einstein observed,

“The unleashed power of the atom has changed everything but our modes of thinking and we thus drift toward unparalleled catastrophe.”[1]

President Obama’s recent declaration of a new strategic policy emphasizing promotion of  “the renewed engagement of our diplomats” (NYT, 5/23/10) is likewiae a nod in the direction of Einstein’s insight.  In terms of civil conflict, the typical practice of law today where even moderately high stakes are concerned, have become like the battles of WWI: senseless battles of attrition with no prisoners taken and common sense be damned.  We like- wise need instead a greater commitment in civil conflict to the renewed engagement of lawyers as peacemakers and  problem-solvers, as counselors at least as much as advocates.

I therefore come here this morning to speak to you of conflict resolution by means other than by war; and specifically, in more than just a metaphorical sense, by means other than the civil wars fought in adversarial litigation by lawyers.  It has often been observed that Americans are the most litigious people on the planet.   We are not only inclined to say “There ought to be a law…” but also that “There ought to be a lawsuit to solve my problem.”  In contrast to this American disposition, I am an advocate of  conflict resolution in civil matters by peacemaking, problem-solving methods, through negotiation rather than through a warmaking, adversarial model of legal practice.  Some trial lawyers might say that in choosing this path, I don’t have the “killer instinct.”  I confess to that.  That is because I very much prefer healing to killing and life to death.

What are “the most successful conflict resolutions?” The most successful conflict resolutions:

(1) Satisfy all parties to the conflict to the maximum extent possible.

(2)  Involve the least possible expense in time, money, life disruption, and emotional distress.

(3)  Are real and long–lasting.  And

(4) Are least likely to create potential causes of new conflicts.

Conflict resolution, like medical practice, is an art, not a science. I consider one of my prime credentials for expertise in conflict resolution the fact that I have been married to the same spouse for 47 years –three times.  (Our divorce was a failure so we had to remarry each other.)  And my wife gave me one of the most valuable insights I have ever had into conflict resolution; an insight more profound than most lawyers in the present typical mode of legal practice are inclined to achieve: the first thing you must do if you want to resolve a conflict is to listen. [Joy story]

 

Learning how to listen and hear what is being said by a party with whom one is in conflict is the first and most important key to successful resolution of the conflict.  I want to say more about that in this talk, but first let me summarize briefly  five other key principles to successful conflict resolution that I have gleaned from more than 40 years of legal practice, especially during the last 20 years in private practice and conflict resolution:

1.     COMMON GROUND: Conflict presents problems to be resolved by finding common ground for a mutually acceptable solution.

2.     KEEPING A HUMAN VIEW and avoiding role-playing.

3.     DETERMINE AND KEEP IN MIND WHAT REALLY MATTERS to the parties involved. Minimize essentially irrelevant detours. (Lawyers’ tendency to avoid emotional issues; divorce case settlement.)

4.     BE OPEN TO GETTING HELP. The problem giving rise to the conflict may be different than it first appears, and may require the expertise not of just a lawyer, but, for example,  of an accountant, or an electrician, or a plumber, or a psychologist.

5.     SEARCH FOR POETIC JUSTICE. The greatest negotiating skills are not merely technical; they proceed from the human skills of observation, perception, understanding, empathy, reason, and imagination and focus on the very particular circumstances of each matter involved.

Let me state an important  footnote to all this: the problem of dealing with fools and knaves. Fools require empathy; knaves requre sticks and carrots.

OBSTACLES to Listening and Hearing:

Barriers to Hearing What is Beng Said

1.             Partial deafness, or other hearing problems.*

2. Competing sounds, or conversation, or physical barriers to hearing another person clearly.

3. Tone, pitch, or volume of voice.

4. Different, unusual, or ambiguous use of language.

Barriers to Hearing & Listening

5. Distraction, interruption, or preoccupation.

6. Fatigue, boredom, disinterest, or other inability to concentrate. Barriers to Listening With Your Heart

7. Judgment, Prejudgment, and Misjudgment

8. Bias and Personal Prejudice

9. Differences of Perspective

10. Alienation

* Note: http://well.blogs.nytimes.com/2010/04/26/little-known-disorder-can-take-a-toll-on-learning/?th&emc=th (“Little known Disorder Can Take a Toll on Learning,” NYT, April 26, 2010)

In contrast to the peacemaking, problem-solving approach I have just summarized to conflict resolution, there is the approach emphasized in law school and typified by most American legal practice:  Seeing conflict as a matter to be resolved by reference primarily to legal rules with the prospect of litigation to “resolve” the conflict.  This is, in effect, what most of the typical law school curriculum teaches, how lawyers are mainly trained to think, and how most lawyers practice their profession. Most legal studies center on the failures of conflict resolution that have led to litigation. [2] Analogy to World War I trench warfare; DISCOVERY ABUSE; Victory by attrition.  Result: increased costs through defensive medicine  (Justin leg story).  Estimated between 8% and 24% increase in American legal costs.  “Lawyer,” “Attorney,”  “Counselor.”  Elihu Root.  90s books; settlement statistics (Loyola LRev)

CONCLUSION: Need for reform of legal education and practice to emphasize problem-solving and peacemakng instead of warmaking.  Negotiation a required bar course.  (Much more important than recovery caps.)  Lincoln:

“Discourage litigation. Persuade your neighbors to compromise whenever you can.  Point out to them how the nominal winner is often a real loser ––in fees, expense, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man.”

 


[1] Conflict Resolution and What’s Right and Wrong With Lawyers: The Litigation Problem A talk on the core principles of conflict resolution and how typical contemporary legal education and practice, by unnecessarily turning problems into lawsuits, burdens the economy and promotes civil discord instead of community peacemaking.

[1] This stark truth was, no doubt, what John Paul II had in mind when he wrote that “War should belong to the tragic past, to history;  it should find no place on humanity’s agenda for the future.”

[2] American Principles & The Evolving Ethos of Aerican Legal Practce, 28 Loyola Unversity Chicago Law Jurnal 237, Winter 1996.

When Lawmen Ignore Rule of Law

Published in the San Francisco Chronicle, May 21, 1998

MACHIAVELLI, a government official with a practical grasp of political realities, gave the following title to a Chapter of one of his books:  “It Is A Bad Example Not To Observe the Laws, Especially on the Part of Those Who Have Made Them; And It Is Dangerous For Those Who Govern Cities To Harass The People With Constant Wrongs.”   I am a “law and order” man with a passion for the rule of law.  But the experiences I’ve had with our criminal justice system are making me think that too many lawyers responsible for law enforcement seem to consider what they are doing either a kind of game, a political career gambit, or just another business, despite their sworn oaths to uphold the law.

I have been practicing civil law for more than thirty years.  But in each of the only two serious criminal matters I’ve had –one of which involved two California counties– two of the three Assistant DA’s in the cases blatantly ignored the facts and the law for the sake of the game.  (As a San Franciscan, I’m pleased to add that the one Assistant DA out of the three who showed interest in the actual facts of the case, and who agreed not to oppose the truth, was the San Francisco Assistant DA.)  The first case was a Petition to a Court to certify that a man who had committed several felonies was rehabilitated (so he might qualify for a pardon). The Assistant DA of a Southern California County opposed the Petition, while admitting to me that his opposition memorandum was wrong –both as a matter of fact and as a matter of law– and that our memo was correct in both respects.  But he wouldn’t withdraw his opposition, he said, because it was the “policy” of his office to oppose all such Petitions.

In the second case, the records of the DA showed that he had never read or considered evidence we sent to him before he filed the complaint; evidence which showed that the defendant could not as a matter of law have committed the alleged offense.  The complainant was a local citizen with highly questionable motives.  A lawyer who was a supporter of the investigating detective (who was running for Sheriff), told me that it was the “policy” in that County, when a criminal complaint was made by a citizen, “to throw things against the wall and see if they stick.”  By my definitions, this is not obedience to the rule of law by prosecutors: it is arbitrary, tyrannical rule by those “who govern cities;”  —-and  it is government harassment.

One of the first purposes of our government as stated in the Preamble to the U.S. Constitution, is “to establish justice.”  I thought at first it was just my bad luck to run into two Assistant D.A.s whose narrow politics overruled the principle that the purpose of our laws is “to establish justice” –though this is a principle each of them had sworn an oath to uphold.  But I have been told by friends who practice criminal defense law –people of high integrity– that this attitude has become common among prosecutors.  Their excuse is often that they are just “too busy” to take the time to evaluate criminal complaints as seriously as they know they should, so they leave it to the courts to do the work of justice for them.

As a member of the middle class and a grandfather, of course I want our streets to be safe and criminals prosecuted swiftly and effectively.  But respect for the law is something that grows or shrinks by the example of those who make and enforce the laws.  A young person doesn’t have to be a bad character to get in trouble with the law once or twice during his impulsive youth.  What respect are young defendants likely to have for the law when, during such encounters, they learn from their private attorneys or public defenders that the DA’s office doesn’t really have time to consider the facts or, in many cases, even really care very much about justice?  In such an environment, you would expect, wouldn’t you, that a jury with men and women on it who knew of such prosecutor attitudes, might even want to free a guilty person now and then to set an example?   And you would also expect even young, idealistic criminal defense attorneys to learn soon that truth and justice are only hollow words to criminal prosecutors, so that they will have to “play the game” just as ruthlessly, whether their clients are guilty or innocent.  Level-headed Machiavelli told us that when those who make and enforce the law disregard it

“the consequence is that such disregard becomes the habit of the people themselves, who cease to organize the government for the general good, but instead only act with the view of benefiting their own party, which, instead of establishing order in the republic, only tends to increase disorders.”

If it takes more money to staff DA’s offices with people who can remember their sworn duty to uphold the Constitution while they’re doing their job, I for one would be willing to pay for it in taxes. The way DA’s offices work now, there is a good chance that any troublesome or disturbed person could cause me, or my grandchildren –or you– enormous unnecessary stress and expense because some DA is willing to “throw their complaint against the wall to see if it sticks,” without bothering to think about what that could do to me, or to my grandchildren or to you –or to our system of government.

(C) 1998, Harrison Sheppard

 

The Hazardous Future of Democracy in America: Tocqueville & Lawyers in America

 

[Published in edited version in The Envisioned Life: Essays in Honor Of Eva Brann, Paul Dry Books, Philadelphia, 2007]
by
Harrison Sheppard
For St. John’s College, Santa Fe, New Mexico

November 5, 2004

Dedicated to the Memory of Jacob Klein

ALEXIS DE TOCQUEVILLE, who wrote Democracy in America during the second quarter of the 19th century, believed that American lawyers of his time were “the most powerful existing security” against the potential excesses of democracy.   By “excesses of democracy,” Tocqueville  meant a tendency toward either a kind of anarchy or “mob rule,” or an oppressive tyranny of the majority leading to despotism.  In the course of this lecture, we will examine the reasons for Tocqueville’s beliefs.  We will then consider the significance of Tocqueville’s views as they relate to the prevailing character of American lawyers today.  The real subject of this lecture, therefore, is the likely future of the United States of America as it may be affected by the habits and practices of 21st century American lawyers.

Members of the legal profession in good standing are designated by three different titles signifying their diverse functions.  The first and most common title is “lawyer,” which, etymologically parsed, signifies “one who speaks the law.”

The second common title is “attorney,” which means “one who stands in the place of (or represents) another.”  (It is because of this meaning of the word “attorney” that one may be an “attorney in fact” as well as an “attorney at law.”)

The third title is “counsel” or “counselor,” signifying “one who gives advice.”  Such advice need not be limited to advising a client about what the law says.  As a Rule of Professional Conduct published by the American Bar Association stated, “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation,” ABA Model Rules of Professional Conduct, Rule 2.1, “ADVISOR.”

Significant discourse about “lawyers” in America should include, and may perhaps best begin with, a clear understanding of the nature of the “law” that American lawyers are supposed to speak.  In this country, the U.S. Constitution and federal laws enacted in pursuance thereof are declared to be “the supreme Law of the land” (U.S. Constitution, Article 6), indicating that American lawyers should at least partly be governed in what they say about the law by their understanding of the provisions of the U.S. Constitution and its guiding purposes.  We should, however, consider the most fundamental definition of “law” in a reasoned discussion of the kind of law American lawyers are supposed to speak.  For this purpose, I choose to refer to the seminal definition of “law” given by St. Thomas Aquinas in his Treatise on Law in the Summa Theologica, namely, that

Law is an ordinance of reason, for the common good, promulgated by those who have the care of the community; Thomas Aquinas, Treatise on Law, Question 90, Of the Essence of Law.”

I suggest that this definition states a proper understanding of authoritative American law as the authors of our Constitution would have understood it. It is a definition that accords with John Locke’s view, reflected also in the writings of Blackstone (with which most of the Founders were familiar), that “the life of the law is reason.”   A political “ordinance” that fails to conform substantially to the Thomistic definition of law is something other than “law” properly understood; it is, rather, usually a mere edict, like a royal decree in antiquity, pronounced by those who have the power to enforce their will in a given polity, without necessarily possessing the authority of either reason or care for the common good.

It is with these premises that I introduce my discussion of what Alexis de Tocqueville had to say in the second quarter of the 19th century about American lawyers in his enduring and often prophetic work, Democracy in America.

I. Classical Criticisms of Lawyers

Tocqueville’s consideration of the part American lawyers play, or should play, in the American polity is, for the most part, highly complimentary, even flattering. This may come as something of a surprise to those familiar with the critical literature, both ancient and modern, condemning the character of the typical lawyer and the way he works.  Consider the following complaints about lawyers found in great secular and religious literature, ancient and modern:1

We can go back at least as far as the Bible to find admonitions against “going to law” against your neighbor.2 The Gospel According to St. Luke, however, includes the following direct condemnation of lawyers (Luke 11:46):

Woe unto you also, ye lawyers! For ye load men with burdens grievous to be borne and ye yourselves touch not the burdens with one of your fingers.

In Plato’s time, there were no lawyers, as we know them.   But what Plato has to say about the closest ancient Athenian equivalent to a lawyer –what Plato calls “the man of the law courts” in the Theatetus (at 172-73)– resembles what may be said about lawyers to this day:

But…the man of law courts is always in a hurry when he is talking….[He is] keen and high-strung, skilled in flattering [his] master and working his way into favor; [causing[ his soul to be small and warped.  His early servitude prevents him from making a free, straight growth; it forces him into doing crooked things by imposing dangers and alarms upon a soul that is still tender.  He cannot meet these by just and honest practice, and so resorts to lies and to a policy of repaying one wrong with another; thus he is constantly bent and distorted, and in the end he grows up into manhood with a mind that has no health in it, having now become –in his own eyes—a man of ability and wisdom.   There is your practical man, Theodorus.

Jonathan Swift skewers lawyers at length with an hilarious combination of fact and satire (Gulliver’s Travels, 265-266, Alfred A. Knopf pub., 1991):

I said there was a society of men among us, bred up from their youth in the art of proving by words multiplied for the purpose, that white is black and black is white, according as they are paid.  To this society the rest of the people are slaves.

For example, if my neighbor hath a mind to my cow, he hireth a lawyer to prove that he ought to have my cow from me.  I must then hire another to defend my right; it being against all rules of Law that any man should be allowed to speak for himself.  Now in this case, I who am the true owner, lie under two great disadvantages.  First, my Lawyer being practiced almost from his cradle in defending falsehood, is quite out of his element when he would be an advocate for justice, which as an office unnatural, he always attempts with great awkwardness, if not with ill-will.  The second disadvantage is, that my lawyer must proceed with great caution: Or else he will be reprimanded by the judges and abhorred by his brethren, as one who would lessen the practice of law….

It is a maxim among these lawyers, that whatever hath been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind.  These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the Judges never fail of directing accordingly.

In pleading, they studiously avoid entering into the merits of the cause; but are loud, violent, and tedious in dwelling upon all circumstances which are not to the purpose…

It is likewise to be observed, that this society hath a peculiar cant and jargon of their own, that no other mortal can understand, and wherein all their laws are written, which they take special care to multiply, whereby they have wholly confounded the very essence of truth and falsehood, of right and wrong; so that it will take thirty years to decide whether the field, left me by my ancestors for six generations, belongs to me, or to a stranger three hundred miles off.

To these may be added indictments of the practices of lawyers by Shakespeare (in Hamlet3 as well as in Henry the VI Part 2),4 Dickens5 (who clerked for a time in an English Inn of Court), Adam Smith,6 and by many scholars,7 wits,8 and muckrakers9 in the 20th century.

How may we summarize these classical and contemporary condemnations of the practices of lawyers?   This way, I think: Lawyers tend to be greedy sophists, devoted far more to the technicalities of the causes they advocate and the fees they are paid for their efforts, than to substantial justice.  Their characteristic method is eristic and sophistical argumentation hostile to discourses of reason that seek the justice of a case.  They are habitually wily in their practices and, at best, amoral.  They acquire habits of mind that positively lead them to dishonesty and, consequently, to the promotion of injustice.  By adhering to their sophistic arts instead of moral considerations, lawyers “touch not with even one of their fingers,” the real burdens borne by the clients whose best interests they are supposed to serve.

This widespread characterization of lawyers does not, however, express the dominant view of lawyers Tocqueville appears to take.

II. Tocqueville’s Fears About The Future of Democracy

Here is Tocqueville’s seminal statement about lawyers in Democracy in America:

I am not ignorant of the defects inherent in the character of this body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained; and I cannot believe that a republic could hope to exist at the present time, if the influence of lawyers in public business did not increase in proportion to the power of the people (Democracy in America, Everyman’s Library [hereafter “Everyman], Alfred Knopf, NY, 1994, Chapter XVI, Vol. I, “Causes Which Mitigate The Tyranny of the Majority in the United States,” p. 276, emphasis added).

To understand the meaning of this apparent heterodoxy, we have to understand, first, what Tocqueville feared about the possible future of democracy in America as it might prefigure ever-more pervasive democracy in the world; and, second, what he meant by “lawyer-like sobriety” in the context of the sentences I have just quoted.

In the Introduction to the first volume of Democracy in America, after surveying the history of Western civilization, Tocqueville concluded that the steady development of democracy –-by which he meant “a general equality of [social] condition among the people”— was an “irresistible revolution” and a “providential fact.”10 He eloquently summarized the reasons for this trend as follows (Everyman, Vol. I, p. 5):

From the time when the exercise of the intellect became a source of strength and of wealth, we see that every addition to science, every fresh truth, and every new idea became a germ of power placed within the reach of the people.  Poetry, eloquence, and memory, the graces of the mind, the fire of imagination, depth of thought, and all the gifts which Heaven scatters at a venture, turned to the advantage of democracy; and even when they were in the possession of its adversaries, they still served its cause by throwing into bold relief the natural greatness of man.  Its conquests spread, therefore, with those of civilization and knowledge, and literature became an arsenal open to all, where the poor and the weak daily resorted for arms.  In running over the pages of our history, we shall scarcely find a single great event of the last 700 years that has not promoted equality of condition.

Tocqueville was a 19th century French aristocrat who confessed some sadness at the passing of the old order.  An evidently pious, if not conventionally religious, Catholic who declared “I believe, but I do not practice,”11 he sought to find and accept reasons to rejoice in what he characterized as the will of a just God.  The whole of Democracy in America was written, he said, “under the influence of a kind of religious awe…of that irresistible revolution which has advanced for centuries in spite of every obstacle…” (Everyman, Vol. I, p. 6).  As a political scientist, he undertook by coming to America, where democracy as he understood it was most fully developed, to study and to understand it, and then consider how its inevitable human imperfections could best be mitigated. He is explicit about this:

I confess that, in America, I saw more than America; I sought there the image of democracy itself, with its inclinations, its character, its prejudices, and its passions, in order to learn what we have to fear or to hope from its progress (Everyman, Introduction, Vol. I, p. 6).12

Like many, if not, indeed, nearly all, of the Founders of the American Republic, Tocqueville feared what common people  –the demos– might do with their power in democratic society.   He feared –one might even say correctly he predicted— that the democratic outlook would lead to the following political developments:

First, a highly centralized government tending toward a diminished concern for individual rights; second, an enormous expansion of governmental power in regulation of private enterprise and in providing for the public welfare; third, a consequent need for the development of countervailing aggregations of private power to prevent the government from becoming too oppressive; fourth, an increasing tendency toward political apathy, following an almost complete absorption in private business and affairs on the part of people generally; fifth, a reluctance of the people to withdraw their confidence in the government “in the midst even of its excesses and errors;” and, sixth and lastly, agreeing with Thomas Jefferson (who Tocqueville regarded as “the most powerful advocate democracy has ever had”), a greatly expanded power in the Presidency “at a distant period.”

Tocqueville’s fears about the future of democracy may be seen as focusing upon two main concerns: the possible development of a welfare state, which he eloquently condemns as a “despotic” polity promoting material well-being at the price of spiritual impoverishment,13 and the exercise of a “tyranny of the majority” oppressively disregarding the rights of minorities and of individuals.14 (These at least echo, as you will recognize, the prognosis for failed democracy in Plato’s analysis of polities in the Republic.15)  Tocqueville’s fears were, however, overridden by his faith that the flourishing of democracy was the result of “Divine Providence.”  He declares in his Introduction that, though he is “ignorant” of God’s designs, he “shall not cease to believe in them because [he] cannot fathom them, and [he] had rather mistrust [his] own capacity than [God’s] justice. “

Throughout Democracy in America, Tocqueville therefore looks for elements at work in American society that may operate to prevent the degeneration of democracy into anarchy, or into a benevolent but wholly materialistic despotism, or into a complete tyranny of the majority.  He finds five American institutions that give him such hope, in most of which lawyers may play a substantial part.  These are:

1. Private Voluntary Associations

2. A Free Press

3. Trial By Jury

4. The American Legal Profession Itself

5. The “Spirit of Religion”

Let us briefly consider each of these in turn, maintaining our focus upon what Tocqueville has to say about the American legal profession.

III. Tocquevillian Safeguards Against Democratic Anarchy, Despotism, and

The Tyranny of the Majority

1. Private Voluntary Associations. At the beginning of the 19th century, Tocqueville could accurately say that the United States was “the only country on the face of the earth where the citizens enjoy unlimited freedom of association for political purposes” (Everyman, Vol. II, Chapter VII, p. 115).  Tocqueville begins a Chapter in Volume I titled “Political Associations in the United States” (Everyman, Chapter XII, p. 191) with this observation:

In no country in the world has the principle of association been more successfully used or applied to a greater multitude of objects than in America….In the United States associations are established to promote the public safety, commerce, industry, morality, and religion….

At the present time the liberty of association has become a necessary guarantee against the tyranny of the majority.  In the United States, as soon as a party has become dominant, all public authority passes into its hands… There are [therefore] no countries in which associations are more needed to prevent the despotism of faction or the arbitrary power of a prince than those which are democratically constituted (Everyman, Vol. I, Chapter 12, pp. 191-185).

Tocqueville considers private voluntary associations, and private associations with a public purpose, as constituting “a separate nation in the midst of the nation, a government within the government.”    He views their continued existence as indispensable to the preservation of minority liberties by exercising collective, vocal power outside of government.  We should judge for ourselves the extent to which private voluntary associations continue to function as safeguards against either oppressive government or the tyranny of the majority in the United States; but we need also to consider the extent to which they may presently operate to entrench, rather than disperse, centralized power in the use made of them, for example, in political campaign financing. Might Tocqueville have had too narrow a view of the potential effects of private voluntary associations in America for good and ill?  The growing public apathy about politics Tocqueville feared as a likely development in American society seems to have been realized.  May that not operate to diminish the extent to which the most effective voluntary associations today are, on the whole, more likely to be associated with, rather than distant from, the axes of established political power, thus diminishing their Tocquevillian function as countervailing forces against the power of government?

2. A Free Press.  In Tocqueville’s day, a “free press” meant mainly the liberty of newspapers to publish independent opinions.  Tocqueville was restrained in his appreciation of liberty of the press.  “I confess,” he wrote:

that I do not entertain that firm and complete attachment to the liberty of the press which is wont to be excited by things that are supremely good in their very nature.  I approve of it from a consideration more of the evils it prevents than of the advantages it ensures (Everyman, Vol. I, Chapter  XI, “Liberty of the Press in the United States,” at p. 181).

 

This restraint was no doubt born in part from his awareness of how irresponsible and misleading the American press could be — perhaps even more in his day than in ours.  It was also partly the result of an observation he makes in the very first sentence of his chapter on liberty of the press (Everyman, ibid.):

The influence of liberty of the press does not affect political opinions alone, but extends to all the opinions of men and modifies customs as well as laws.

 

In his admiration of a free press for “the evils it prevents,” Tocqueville associates a free press closely with the salutary power of voluntary associations.  Given the likely geographic dispersion of the membership of voluntary associations large enough to exercise significant power, he argues that

There is a necessary connection between public associations and newspapers: newspapers make associations, and associations make newspapers,…Thus it is in America that we find at the same time the greatest number of associations and of newspapers (Everyman, Vol. II, Chapter VI, p. 112).

We need not dwell on the importance of a free press for preservation of political liberty, its special power to help promote the security of minorities and the rights of individuals by providing the public with the information it needs, and to which it is entitled, if it is to be able to assess the actions of its government.  It is, I think, enough to note that the First Amendment to the U.S. Constitution, which is, accordingly, the first of its “Bill of Rights,” is the Amendment that says in relevant part:

Congress shall make no law…abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (emphasis added).

We do need to ask, however, how the provisions of the First Amendment have been interpreted and both restricted and expanded over the past 215 years; by whom it is authoritatively interpreted (lawyers and judges, of course); how the addition of radio, television, and the internet as means of communication subject to First Amendment protection have changed what we understand by a “free press;” whether, or to what extent, these modern media effectively enhance, or compromise, or even distort, the political functions of a free press as envisioned by the Founders. Consider, for example, Tocqueville’s concern about the effects of a free press on social custom when, as at present, they include the cultural effects of television. 16

In the 1930’s, public hearings were held to consider federal issuance of radio licenses. David Sarnoff, President of RCA, testified that it was “inconceivable” that the public airways would be used for commercial purposes.  One is tempted to ask whether the “public airways” are, in effect, now being used for any other purpose, even in the context of considering network television news broadcasts.  In considering America’s free press as a safeguard to liberty and check on governmental power, we should also ask these questions: Has the substantial decrease in the number of newspapers in the United States since Tocqueville’s day –during the past half century especially– coupled with the increasing concentration of major mass media generally, operated to reduce the availability to Americans of the range of readily available, politically significant information?  Has private censorship of the “public” airways significantly reduced the extent to which the American press represents and advocates minority political opinion?   Does the public continue to have sufficient access to the information it needs to judge the extent to which our government, in Lincoln’s formulation, remains a “government of the people, by the people, and for the people?”

3. Trial By Jury.  Speaking of the centuries long establishment, in English law, of the institution of trial by jury, Tocqueville says,:

A judicial institution which thus obtains the suffrages of a great people for so long a series of ages, which is zealously reproduced at every stage of civilization, in all the climates of the earth, and under every form of human government, cannot be contrary to the spirit of justice (Everyman, Vol. I, Chapter XVI, “Causes Which Mitigate the Tyranny of the Majority in the United States,” p. 281).

Tocqueville has a very high opinion of the effects of trial by jury –in both civil and criminal cases– on the people of a democracy.  He considers the institution as important an incident of the sovereignty of the people as the right to vote.  Trial by jury decisively affirms the sovereignty of the people in their most important encounters with governmental power.17 Jury service is, moreover, in Tocqueville’s view, an institution that educates and elevates people to exercise their democratic powers with greater prudence and regard for justice by imbuing

all classes with a respect for the thing judged and with the notion of right…It teaches men to practice equity; every man learns to judge his neighbor as he would himself be judged.  And this is especially true of the jury in civil causes; for while the number of persons who have reason to apprehend a criminal prosecution is small, everyone is liable to have a lawsuit (Everyman, Vol. I, p. 284).

The process of selecting a jury in both civil and criminal cases in the United States is generally in the hands of the judge and the attorneys on each side of a case.  In high profile criminal cases, and in civil cases where a great deal of money is involved, this has become a sophisticated art.  The recent Hollywood movie, Runaway Jury, may portray an exaggerated picture of this process, but it is suggestive of the extraordinary lengths to which contemporary American lawyers may go in their efforts to ensure that the “right” jury is selected for their respective purposes.   This brings us to the heart of our subject: Tocqueville’s view of the part American lawyers may play in avoiding the excesses of democracy and mitigating the tyranny of the majority.  Recall Tocqueville’s expressed opinion that without “lawyer-like sobriety” as a factor in American society, he could not imagine that American republican institutions would continue to exist.

4.  The American Legal Profession Itself. It would be difficult to overestimate the im- portance that Tocqueville attached to the conduct of members of the legal profession as the guardians of freedom in American democratic society.  “If I were asked where I place the American aristocracy,” he reports, “I should reply without hesitation that it is not among the rich [who the people are apt to mistrust and] who are united by no common tie, but that it occupies the judicial bench and the bar” (Everyman, Vol. I, p. 278).  The first sentence of his address to this subject, in the chapter titled  “Causes Which Mitigate the Tyranny of the Majority in the United States,” reads as follows:

In visiting the Americans and studying their laws, we perceive that the authority they have entrusted to members of the legal profession, and the influence that these individuals exercise in the government, are the most powerful existing security against the excesses of democracy (Everyman, Vol. I, p. 272, emphasis added).

The reason Tocqueville has come to this conclusion is one that should resonate with special significance to the members of this, the St. John’s College community of learning.  Here is the reason Tocqueville gives to explain why he views lawyers as “the most powerful existing security against the excesses of democracy:”

Men who have made a special study of the laws derive from this occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude (Ibid.,  p. 273, emphasis added).

Tocqueville is explicit in his association of American lawyers with the old aristocracy.  “Some of the tastes and the habits of the aristocracy,” he says, “may be discovered in the characters of lawyers” (ibid.).   For example, “the habit of directing to their purpose the blind passions of parties in litigation inspires [American lawyers] with a certain contempt for the judgment of the multitude….They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude…” (Ibid., pp. 273-74).  Tocqueville does not, however, assert that

all the members of the legal profession are at all times the friends of order and the opponents of innovation, but that most of them are usually so.  In a community in which lawyers are allowed to occupy without opposition that high station which naturally belongs to them, their general spirit will be eminently conservative and anti-democratic (Ibid. at p. 274, emphasis added).

Most of them,” he asserts with confidence, “are usually so.”  “Lawyers,” he goes on to say, “are attached to public order beyond every other consideration, and the best security of public order is authority” (Ibid., at p. 275).  Tocqueville goes so far as to say that lawyers generally value legality even above freedom, and fear tyranny less than disorder; that they are even willing to accept limitations upon individual freedom so long as they are properly authorized by the duly constituted legislature.  He accurately observes

The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it in their own right…since they are the only men of information and sagacity…who can be the object of popular choice (p. 275).

Six of the first ten U.S. Presidents were lawyers, including three of the six Presidents preceding the date Democracy in America was written.  In fact, until 1952, about two-thirds of our American Presidents were either lawyers or had some formal legal training.  Why would American lawyers command such a position in democratic society at least until the middle of the 20th century?  Tocqueville tells us why.  Lawyers, he says,

like the government of democracy without participating in its propensities and weaknesses; whence they derive a twofold authority from it and over it.  The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister design…Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society (Ibid., at pp. 275-76, emphases added).

The conservative, aristocratic tendencies of the habits of English and American lawyers as Tocqueville perceived them is fortified by Anglo-American reliance upon legal precedent, which is not as binding on their French equivalents.  In marked contrast to Jonathan Swift’s condemnation of the use of precedent “to justify the most iniquitous opinions,” Tocqueville approves of habitual reliance upon precedent as a brake on democratic excess.   The deference an American lawyer pays to the opinions of his forefathers, Tocqueville points out, “necessarily give him more timid habits and more conservative inclinations…than [a lawyer] in France” (Ibid.,  at p. 277).   Here, then, is Tocqueville’s summary of the reasons he has concluded that American lawyers “as a body, form the most powerful, if not the only, counterpoise to the democratic element:”

When the American people are intoxicated by passion or carried away by the impetuosity of their ideas, they are checked and stopped by the almost invisible influence of their legal counselors. They secretly oppose their aristocratic propensities to the nation’s democratic instincts, their superstitious attachment to what is old to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience (Ibid., at p. 278, emphasis added).

We need to consider how Tocqueville’s assessment of the character of the typical American lawyer of the 1820’s relates to what we may observe about the character of contemporary American lawyers.  Before doing so, however, we will briefly consider what Tocqueville has to say about the “spirit of religion” as the fifth check upon the excesses of democracy.

5. The Spirit of Religion.  Tocqueville feared that the tendency toward materialism he found in the democratic spirit might lead to a despotic welfare state.  (In this he might be regarded as foreseeing the possibility of a Soviet style regime.)  He also observed among Americans a spirit of individualism of a kind he thought most congenial to despotism.

No vice of the human heart is so acceptable to [despotism] as selfishness; a despot easily forgives his subjects for not loving him, provided they do not love one another.…Despotism, then, which is at all times dangerous, is more particularly to be feared in democratic ages. (Everyman, Vol. II, Chapter IV, p. 102).

In contrast to this tendency, Tocqueville congratulates Americans for the way that their free political institutions combat “the tendency of equality to keep men asunder” (Ibid., at p. 103).   But it is materialism that Tocqueville fears and hates most.  It is his view that democracy in America will succeed in avoiding the worst of its excesses only so long as the “spirit of religion” remains widely diffused.  In his summary formulation, Tocqueville states his opinion that “liberty cannot be established without morality, nor morality without faith” (Everyman, Vol. I, “Author’s Introduction,” p. 12). The faith of which he is speaking, however, is not one of adherence to any particular religious dogma.   It is the spirit of religion, a capacity for faith in the value of higher things, in which Tocqueville places his hopes, for the following reason:

It must be acknowledged that equality, which brings great benefits into the world, nevertheless suggests to men some very dangerous propensities.  It tends to isolate them from one another, to concentrate every man’s attention upon himself; and it lays open the soul to an inordinate love of material gratification.

The greatest advantage of religion is to inspire diametrically contrary principles.  There is no religion that does not place the object of man’s desires above and beyond the treasures of earth and that does not naturally raise his soul to regions far above those of the senses.  Nor is there any which does not impose on man some duties toward his kind and thus draw him at times from the contemplation of himself (Ibid., at p. 22).

American civil law, like religion, is also concerned with one person’s duty to another; and lawyers, like clergymen interpreting their bibles, are, or should be, deeply devoted to interpretations of what may be called “civil scripture,” and their “regular connections of ideas.”   Abraham Lincoln implicitly noted this parallel in his Address to the Young Men’s Lyceum of Springfield, Illinois in 1838 with the following words:

Let reverence for the laws…become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars.

While ever a state of feeling such as this, shall universally, or even very generally prevail throughout the nation, vain will be every effort, and fruitless every attempt, to subvert our national freedom.

In Tocqueville’s day, lawyers could rightly be termed “the secular ministers of American democracy,” especially in their function as counselors of restraint and respect for the spirit of the law.  This may be the chief reason Tocqueville so much admired the American legal profession as he perceived it.

IV.  A Comparison of 21st Century American Lawyers As a Body With American Lawyers Praised by Tocqueville

How relevant are Tocqueville’s observations about the redemptive character of American lawyers to the American legal profession today?  I am unhappy to say that, while they may remain highly relevant to consideration of what we may need to preserve our civil liberties, they are no longer accurate characterizations of the American legal profession –except perhaps for Tocqueville’s observation about a tendency toward procrastination.  The degeneration of the American legal profession from the model Tocqueville had in mind has a long history, beginning as early as the post-Civil War period.18 Since the 1960’s, however, the character of the American legal profession as Tocqueville admired it has not been just further eroded; it has virtually disappeared.   Signaling this catastrophic loss, a number of books were published in the 1990’s by authoritative authors with titles and subtitles such as these:19 The Lost Lawyer: Failing Ideals of the Legal Profession; The Betrayed Profession: Lawyering at the End of the Twentieth Century; The Death of Common Sense: How Law is Suffocating America; A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society.  The authors of these books include a Yale Law School Dean, a distinguished member of the Harvard Law School faculty, and a former Chairman of Xerox Corporation who was also Ambassador to the Organization of American States.

Lawyers are no longer generally educated, trained, or employed to cultivate a love for  “for the regular connection of ideas.” Though each of them swears an oath upon admission to the bar to uphold the Constitution and laws of the United States (and their respective States), they are not likely to take those oaths very seriously.  Very few American lawyers today are likely to be able to quote the words, or even summarize the sense, of the Preamble to the U.S. Constitution in substantial part –which would probably not have been the case in Tocqueville’s day. Lawyers are no longer generally inclined to fulfill their function as Tocquevillian counselors, skilled in checking their clients’ passions or the impetuosity of their ideas –where money is to be made by indulging their passions and impetuosity.  The practice of law in America has become much more of a business –with the applause of some American economists– than one of the three traditional “learned professions” that distinguished the practice of law from a merely commercial enterprise.   The present dominant ethos of American legal practice is the will to win at any cost that the client can afford, including the cost of truth.  As William Braithwaite of St. John’s Annapolis campus has written, that is Why Lawyers Lie: they no longer generally care about the truth in what they do as lawyers  (Braithwaite, Why Lawyers Lie, in THE GREAT IDEAS TODAY 231, Mortimer J. Adler ed., 1994).

There are many reasons for these sad developments.  Some of them may be manifestations of the very character of American democratic culture and materialism as Tocqueville himself perceived and feared them.   There have, however, been a number of specific institutional developments during the past quarter century or so that have clearly contributed significantly to the present situation. Chief among these, in my judgment, are, first, the U.S. Supreme Court’s authorization (on First Amendment grounds!) of commercial advertising by lawyers in Bates vs. State Bar of Arizona, 433 U.S. 350 (1977), which had been generally prohibited by State Bar ethical rules of practice before 1977; second, the spectacle of Watergate, in which the Attorney General of the United States and the Counsel to the President were successfully prosecuted for violations of law demonstrating their contempt, while in office, for faithful execution of the laws of the United States and fidelity to their Constitutional oaths; and third, the proliferation of large and very large law firms (a rarity before the 1970’s).  This development has been especially pernicious.  The growth of large law firms in the U.S. has had the effect of both eliminating the ethical mentoring of young lawyers, and creating virtually irresistible pressures for the generation of “billable hours” as a higher priority than pursuit of prudent measures designed to resolve disputes efficiently (let alone achieve justice).

Fourth and finally, though a passion for justice, equity, and right may yet animate most students entering law school, such aspirations are virtually mocked by typical law school training as naïve and simplistic, and are then usually entirely crushed as law graduates quickly learn that the will to win at any cost –while billing the maximum amount of hours possible– is now the dominant ethos of typical legal practice in America.  The need for radical change in legal education has become increasingly apparent since it was urged as a necessity early in the 20th century; a necessity which I have been personally advocating in my own writings for the past decade.20

What might Tocqueville say about all this?   I will offer my opinion, but this is a question that may be worth exploring in our discussion after the lecture.

I seriously doubt that Tocqueville would find that “lawyer-like sobriety,” in the sense in which he intended that phrase, now typifies American lawyers, either in how they practice and “speak the law,” or in the way most Americans perceive them.  The great founding organs of the American polity —The Declaration of Independence and the Constitution— were intended to harmonize a diverse people through the music of their law of reason.   Tocqueville considered American lawyers, the chief exponents of that law, to be essential harmonizers, a “connecting link between” different factions of American society.   They have now, however, generally become agents of its division as they cash in on its conflicts.21 Nor can we say that most people today “do not mistrust members of the legal profession,” or “do not attribute to them any sinister designs.”22 In short, the essential attributes of American lawyers Tocqueville thought made them the “most powerful security against the excesses of democracy,” do not appear to be operating in the United States today.

Tocqueville was not alone in fearing that democracy in America might end in some form of despotism.  Benjamin Franklin in fact predicted that would be its outcome. At the conclusion of the constitutional convention, he had this to say:

I agree to this Constitution with all its faults, if they are such…[T]here is no Form of government but what may be a blessing to the people if well administered; and I believe farther that this is likely to be well administered for a Course of Years and can only end in Despotism as other Forms have done before it, when the People shall become so corrupted as to need Despotic Government, being incapable of any other. (As quoted by Gore Vidal, Inventing a Nation, Yale U. Press, 2003, at pp. 30-31, punctuation and emphasis in original).

But I do not wish to end this lecture without some notes of hope  –for this audience in particular.

V. Conclusion: The Need For Renewal

On December 27, 1938, Walter Lippman, one of the most distinguished journalists of the 20th century, who was one of President Woodrow Wilson’s most trusted young advisors at the Versailles Peace conference, published a column in The New York Herald Tribune titled “The St. John’s Program.”  In that column, Lippman compared the institutions of the American polity to “a great and noble pipe organ” capable of producing the most beautiful music by those who knew how to play it.  He told a story of how this pipe organ had been carefully constructed by its owner; how, as the organ was passed to the maker’s son and grandson, it fell into disrepair, so much so that, in the course of time, no one could even find the parts needed to repair it.   Lippman then made the point of his tale explicit:

This sad tale will serve, I think, as a parable of the history of the free peoples during the past three or four generations.  For they have inherited great and noble institutions from their forefathers. But because they have not inherited the knowledge which enabled their forefathers to make these institutions, they do not really know how to preserve them, repair them, and improve them.

“Men are ceasing to be free,” Lippman continued, “because they are no longer being educated in the arts of free men,” the classical liberal arts.  Lippman saw in the St. John’s program, the possibility of a “seedbed of an American renaissance” of understanding the design, purpose, and rationale of the American republic.

The principal Founders of our American polity –Washington, Adams, Jefferson, Madison, Hamilton, Franklin, and Gouvernor Morris — all regarded the democratic republic they had created as a great “experiment.”23 In his Gettysburg Address, Lincoln reasserted this view by stating that we are a nation “dedicated to the proposition that all men are created equal,” and that the Civil War was testing whether a government “of the people, by the people, and for the people” could “long endure.”  The experiment has so far endured for more than 200 years; but it may yet fail.  It is more likely to fail if its chief safeguards wither away, and are not renewed.  One of the authors read at St. John’s College anticipated Walter Lippman’s prescription for American renewal by over 400 years.  That author is Machiavelli, a passionate republican who, in his Discourse on the First Ten Books of Livy, written in 1521, had this to say about the renewal of republics:

There is nothing more true than that all the things of this world have a limit to their existence; but those only run the entire course ordained for them by Heaven that do not allow their body to become disorganized. But keep it unchanged in the manner ordained…And as I speak here of bodies such as republics, I say that those changes are beneficial that bring them back to their original principles   And it is a truth clearer than light that, without such renovation, these bodies cannot continue to exist; and the means of renewing them is to bring them back to their original principles (Discourses on Livy, Book III, Chapter 1, 1521).

Machiavelli’s reference to Heaven may remind us of Tocqueville’s belief in the providential future of democracy, and the “spirit of religion” he thought indispensable to the preservation of American liberties.  The kind of faith of which Tocqueville was writing was demonstrated by a young law school graduate during a period when “loyalty oaths” and confessions of political affiliations were requirements for admission to some State bars.  In 1950, George Anastaplo graduated at the top of his class at the University of Chicago Law School.  In his examination for admission to the Illinois State Bar by a “Committee on Character and Fitness,” he refused to answer a question about his political beliefs, relying upon his faith in the political principles enunciated in the Declaration of Independence and his First Amendment rights under the U.S. Constitution.  The young Anastaplo personally argued his case before the U.S. Supreme Court when his admission to the Illinois Bar was denied because of this refusal.   He lost his case in a 5-4

decision against him (366 U.S. 82, 1961).24 In a truly eloquent dissent to the majority opinion on that occasion by Justice Hugo Lafayette Black,  Justice Black said that Anastaplo’s main fault, if any, was that he had taken too much responsibility upon himself to protect the integrity of the bar and the duty of American lawyers to uphold the U.S. Constitution.   Justice Black implicitly applauded Anastaplo’s courage in the concluding, resonant words of his dissent, words which he asked be read at his own funeral as his political testament:  “We must not be afraid to be free.”  Though not a practicing lawyer, George Anastaplo demonstrated not only his courage, but also his understanding of the first virtue –Justice— and the final good –Liberty— referred to in the Preamble to the U.S. Constitution.  In doing this, Anastaplo also exhibited the redemptive character of the American lawyer as Tocqueville understood it.   Anastaplo does not stand entirely alone as a living example of what I have called the “redemptive character” of American lawyers.  Even today, some –even if relatively few— lawyers may be found in America whose practices have such redemptive qualities.   I have described these qualities in greater detail in a booklet titled What’s Right with Lawyers/What’s Wrong with Lawyers.25 “What’s right” with lawyers in America today has much in common with what Tocqueville said was right about them.

In large part, Tocqueville was led to admire the American lawyers of his day because of their characteristic admiration of the classical virtues and aspiration toward them through their education and intellectual habits.  Study of the classical virtues of courage, prudence, justice, and temperance –virtues that sustain and enable one another– is, in effect, part of the St. John’s College curriculum.  In light of the liberal education you have freely chosen, and are now privileged to enjoy, there may rest upon you some special duties: the duty to help keep the American experiment alive; the duty to use the power of your acquired understanding of its original principles and design to help restore them, whether you become a doctor, or a manufacturer, or a computer technologist; but especially if you choose to become an American lawyer.   I therefore conclude my lecture to you, the students and future alumni of St. John’s College, by repeating Justice Black’s admonition: “You must not be afraid to be free.”

 

 

(C) September 17, 2004. Harrison Sheppard


1 These are collected in Sheppard, “American Principles & The Evolving Ethos of American Legal Practice,” 28 Loyola University Chicago Law Journal 237 (Winter 1996) [hereafter “Loyola”] at pp. 246-249, notes 20-28.

2 See, for example, Jesus’s admonition in Matthew 5:25: “Agree with thine adversary quickly, while thou art in the way with him, lest at any time the adversary deliver thee to the judge, and the judge deliver thee to the officer, and thou be cast into prison.”  See also St. Paul’s admonition in I Corinthians 6:1-7: “Dare any of you, having a matter against one another, go to law before the unjust, and not before the saints?….Now therefore there is utterly a fault among you, because  ye go to law with one another…”

3 “Why, might that not be the skull of a lawyer?  Where be his quiddities now, his quillets, his cases, his tenures, and his tricks?  Why does he suffer this rude knave to knock him about the sconce with a dirty shovel, and will not tell him of his action of battery?  Hum!  This fellow might be in’s time a great buyer of land, with his statutes, his recognizances, his fines, his double vouchers, his recoveries, to have his fine pate full of fine dirt?  Will his vouchers vouch him no more of his purchases, and double ones too, than the length and breadth of a pair of indentures?  The very conveyances of his lands will hardly lie in this box; and must the inheritor himself have no more, ha?” (Hamlet, Act 5, sc. 1, lines 98-112).

4 “The first thing we do, let’s kill all the lawyers” Henry VI, Pt. 2, Act 4, sc. 2, line 86 (The Yale Shakespeare ed., 1923).  This often miscited lawyer-bashing quote, uttered by “Dick the Butcher” in the context of a revolt against the power and luxury of the English upper classes, does not necessarily reflect Shakespeare’s own attitude toward lawyers.  For a detailed examination of the significance of this most commonly quoted lawyer-bashing line, including its possible implications in understanding Shakespeare’s own view of lawyers, see Kornstein, Kill All the Lawyers: Shakespeare’s Legal Appeal (Princeton University Press, 1994).

5 “In such an afternoon, some score of members of the High Court of Chancery bar ought to be…mistily engaged in one of ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep on technicalities…and making pretence of equity with serious faces, as players might.  On such an afternoon, the various solicitors in the cause…ought to be…ranged in a line…between the registrar’s red table and the silk gowns, with bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to…master’s reports, mountains of costly nonsense, piled before them…This is the Court of Chancery…which gives to monied might, the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honorable man among its practitioners who would not give –who does not often give—the warning: ‘Suffer any wrong that can be done you, rather than come here!’” (Bleak House 2, Gordon N. Ray ed., The Riverside Press, 1987).

6 “Justice however, never was in reality administered gratis in any country. Lawyers and attorneys, at least, must always be paid by the parties; and if they were not, they would perform their duty still worse than they actually perform it.  The fees annually paid to lawyers and attorneys amount, in every court, to a much greater sum than the salaries of the judges” (Wealth of Nations, bk. V, ch. 1, pt. II, at 677, The Modern Library ed., Random House, 1937).

7 E.g., Roscoe Pound:  “The sporting theory of justice [is] so rooted in the profession in America that most of us [mistakenly] take it for a fundamental legal tenet [even though] the idea that procedure must of necessity be wholly contentious disfigures our judicial administration at every point” (Pound, The Causes of Popular Dissatisfaction With the Administration of Justice, 29 A.B.A. Rep. Pt 1, 395, 1936, reprinted in Landmarks of Law 180, 186-87, Ray D. Henson ed., 1960).

8 E.g.,  H.L. Mencken: “A lawyer is someone who protects us against robbers by taking away the temptation” (Mencken, Sententiae, 1916, quoted in Jonathan Green, The Cynic’s Lexicon 14-38, 1984).

9 E.g.,  “Lawyers are competitors…they tend to look at what they do as a sport.  The way law is practiced today is to get away with what you can” (Nader & Smith, No Contest: Corporate Lawyers And The Perversion of Justice in America, 1996, p. 16).

10 Everyman, Vol. I, p. 6.

11 See Doris S. Goldstein, Trial of Faith: Religion and Politics in Tocqueville’s Thought,  Elsevier Scientific Publishing company, New York, 1975; and  John Lukacs, “The Last Days of Alexis De Tocqueville,” The Catholic Historical Review, Vol. L., No. 2, July 1964, explaining Tocqueville’s refusal to take communion on his deathbed and the significance of Tocqueville’s declaration of faith without practice.

12 For a highly informative discussion of Tocqueville’s political – as opposed to merely philo- sophical– purposes in writing Democracy in America, see Marvin Zetterbaum, Tocqueville and the Problem of Democracy, Stanford U. Press, 1967 (Stanford, CA).

13 See Everyman,  Vol. II, Chapter 6, “What Sort of Despotism Democratic Nations Have to Fear,” p. 316 et seq.

14 See esp. Everyman, Vol. I, Chapter 15, “Unlimited Power of the Majority in the United States and its Consequences.”

15 Plato’s Republic, Bk. 8, 555 et seq., esp. 561-564.

16 For an instructive discussion of the deleterious effects of mass media, and television in particular, on American political life, see Anastaplo,  The American Moralist: On Law, Ethics and Government, Ohio U. Press, 1992 (Athens, Ohio) in the section titled “The Use and Abuse of the First Amendment,” esp. Chapter 17 at pp. 261-273, which includes the following observations at p. 261: “The modern mass media tend more toward centralization of power, while the old fashioned press tended to be more localizing in its efforts and effects….[With the nationalization of mass media] is there a tendency toward homogeneity of tastes and opinions as well as a general lowering of effective moral, political, and intellectual standards?…[With modern industrialization and] its marvels-laden technology…one is forced into a passive role: not the role of the alert observer, but that of the pampered slave.”

17 For a discussion of the relationship between trial by jury and the “Blessings of Liberty” under the U.S. Constitution, see Anastaplo, The Constitutionalist Notes on the First Amendment, Southern Methodist U.  Press, 1971 (Dallas, Texas), Chapter VIII, “The Blessings of Liberty.”

18 See, e.g., John Dos Passos, The American Lawyer, Fred B. Rothman & Co., Littleton, Colorado, 1996, at pp. 12-13: “I am drawing a line between the period before and after the Civil War, and I put the old generation of American lawyers on the farther side, and the new ones on this side of the line….The fundamental difference between the old and new regime of lawyers is this: the great aim of the old lawyers was to master the elements of law; they depended upon an eloquent presentation of their causes; the judges had the time, and it was their pleasure, to listen to the advocates; ‘commercialism’ did not exist; there were less legal tricks or technical legerdemain to resort to, because the dire plague of codification had not yet spread itself over the profession, and destroyed its science, as it existed under common law, where, while form was strictly observed, the substance or merits of a controversy, were principally sought for.  The lawyers of today are case and code lawyers.  The search for principle is subordinate to an investigation for precedent.  The right or justice, or the merits of controversies, disappear under a mass of irreconcilable decisions and forms.  It requires a different kind of intellectual development to be a lawyer than it did in the days long gone by” (emphases in original).  Dos Passos’ first prescription for reform of the American legal profession is to correct “deficiencies, imperfections, and looseness in the preliminary, elementary, and legal education of law students” (Ibid., at p. 165).  It is this lecturers’ first prescription as well; see Sheppard, “Legal Education and the Future of the Republic,” a talk to the San Francisco Yale Club, published in Vital Speeches of the Day, April 15, 1998.

19 A more complete list, fully cited, may be found in Loyola, at p. 246, note 19.

20 See note 18 above.

21 See Sheppard, “Cashing in on Conflict,” The Washington Post, June 6, 1996, p. A23; David Luban, “The Noblesse Oblige Tradition in the Practice of Law,” 41 Vanderbilt Law Review 717 (1988) at p. 724: “The common good will be realized in a society such as the United States, by blunting or mitigating conflict, especially class conflict; Brandeis espoused this theme as did de Tocqueville.”  Luban also points out that the reconciliation of conflicting interests “is one of the most ancient conceptions of the function of law, appearing originally in The Laws of Plato…Because factionalism and class war will inevitably destroy a city unless it is governed by the rule of law, not of men, the lawmakers must attempt to reconcile the conflicting elements of society” (Ibid., at note 31).

22 To the contrary, American Bar Association polls and surveys of the last decade show that “the more contact people have with lawyers, the less favorably they look upon the legal profession;” see the sources cited in Loyola , note 48 at p. 261.

23 See Loyola, note 38 at p. 253, quoting, inter alia, Washington’s statement in his first inaugural address that the “preservation of the sacred fire of liberty, and the destiny of the republican model of government are justly considered as deeply, and perhaps as finally staked, on the experiment entrusted to the hands of the American people” (only the last emphasis is added).

24 The Anastaplo decision may have been effectively overruled in later cases; see, e.g., Konigsberg v. State Bar, 366 U.S. 36 (1961).  One consequence of Anastaplo’s denial of admission to the Illinois State Bar is that Prof. Anastaplo (now at the Loyola University of Chicago Law School) has produced as prolific a body of writings on the American Constitution as any contemporary American; his bibliography occupies more than 80 printed pages in the two volume tribute to him titled Law and Philosophy: The Practice of Theory, Essays in Honor of George Anastaplo, edited by John A. Murley, Robert L. Stone, and William T. Braithwaite, Ohio U.  Press, Athens, Ohio (1992).  These notably include The Constitutionalist: Notes on the First Amendment, Southern Methodist U. Press, Dallas TX (1971); The Constitution of 1787: A Commentary, The Johns Hopkins U. Press, Baltimore, MD  (1989); The Amendments to the Constitution: A Commentary, The Johns Hopkins U. Press, Baltimore, MD (1995); and Abraham Lincoln: A Constitutional Biography, Rowman & Littlefield, Lanham MD ( (1999). The Lincoln book includes a chapter on Tocqueville’s Democracy in America. It is reviewed by the author of this lecture in an essay closely related to its subject in Sheppard, “American Law & the Past, Present, & Future of the American Regime,” 28  Interpretation No. 1, pp. 89-106, NY (Fall 2000).

25 What’s Right  with Lawyers/What’s Wrong with Lawyers (2003), available at some college, univer-rsity, and law school bookstores and through the internet at http://whatsrightwithlawyers.com.

Returning to the Cave: The Loss of Classical Light in Modern American Teaching

Every State is a community of some kind,
and every community is established with a view to some good…
He who is unable to live in society, or who has no need
because he is sufficient for himself,
must be either a beast or a god….
The determination of what is just is the principle of order in political society.

Excerpts from Aristotle, Politics, Bk. I, Chaps. 1 and 2

 

I. Introduction

I begin my remarks by expressing my cordial thanks to the members of the Hellenic American Professional Society of Northern California for inviting me to speak at this Annual Commemoration of Greek Letters Day.  I consider it a privilege to be invited by you to address a subject which, though concerning education, is far from merely academic: the progressive decline, during the past half century or so, of classical teaching and learning in our public and private schools, colleges, and universities.  I look forward to the conversation among us, which I hope will follow my talk, concerning the theme of my remarks.

The title I have given to my remarks is “Returning to the Cave: The Loss of Classical Light in Modern American Teaching.”  The title refers to a celebrated image constructed by Plato in Book 7 of his dialogue, the Republic, written sometime between 386 and 367 B.C.  The Republic is generally considered to be Plato’s greatest work.  It is an inquiry into the nature of Justice, explored partly through the imaginary construction of an ideal state which, Plato makes clear, could never actually exist in this world.  It is, as Socrates tells us in the dialogue, only “a model laid up in heaven” illustrating philosophical judgments about the nature of the truly just human being and state.

The image of the cave in the Republic follows Plato’s description, in Book 6, of the relationship between different kinds of knowing to different aspects of being (or to what really is) in comparison to opinions about different kinds of appearances (that is, what only seems to be).  Plato’s analysis tells us, for example, that we can know with certainty the things that mathematics can teach us; but we can only have opinions –without such mathematical certainty– about the world of appearances, and images of visible objects.

After exploring these questions about the nature of knowledge and being,  appearance and opinion, Plato turns, in book 7, to an image of “human nature in its educated and uneducated state.”  Notice: Plato tells us in advance that he is about to give his audience –us–  an image of “human nature in the educated and uneducated state.”  It is for this purpose that he constructs the metaphor of the cave from which I take the title of my talk.  Let me quote the dialogue at this point, which describes the cave shown in the diagram I have handed out.  Socrates is speaking:

“Imagine men in a cavelike underground dwelling with a long entrance, as wide as the cave and open to the light.  The men have been chained foot and neck since childhood.  The chains keep them in place and prevent them from turning their heads, so that they can only see forward.  Light comes to them from a fire burning at a distance above and behind them.  Between the fire and the prisoners, higher than they, imagine a road with a low wall built alongside, like the screen set in front of puppeteers, over which they show their puppets…Then see people walking along the road carrying things on their heads, including figures of men and animals made of stone and wood and other materials.  These extend over the top of the wall…

“Do you think such prisoners would ever see anything of themselves or each other or the things carried by the other people except their shadows thrown by the fire on the facing wall of the cave?”

“How could they [Glaucon replies] if their heads were held still all their lives?”

“Now, if they could talk to each other, don’t you think they’d believe what they saw was reality?”

“Necessarily.”    —Republic, Book 7, 514-515b).

This image looks so much like people chained to chairs in front of their television sets, that I can’t resist remarking on that.  But Plato is concerned with something even more fundamental than such particular numbings of our wakefulness.  After giving the basic description of the cave I just quoted, Socrates goes on to describe what would happen if one of the men was freed from his chains, and turned around to see both the fire and the objects carried along the road.  He describes how the light of the fire would at first blind such a person, and how he might be confused when he first sees the real objects he had only seen before as shadows, while he was in chains.  Socrates then continues his description of the cave and its inhabitants.  He asks us to imagine someone who was dragged entirely out of the cave into the real light of the sun.  He asks us to consider how the sun’s brighter light would at first completely blind such a person, and how he might even be tempted to run back into the cave because the shadows seemed so much easier to see (at first) than what was outside the cave.  But then, again, Socrates asks us to consider what would happen if such a man stayed long enough out of the cave for his eyes to adjust to the sunlight.  Wouldn’t he be filled with wonder and delight at the clarity and beauty of what he saw, compared to the dim and shifting shadows that were all he was able to see before?  Finally, Socrates asks us also to imagine what would happen if the man came back to the cave and sat down in his old place.  “Wouldn’t darkness fill his eyes,” Socrates asks, “after suddenly coming in from the sun?

“And if again he had to ‘evaluate’ those shadows down there in competition with the perpetual prisoners, then in that short time of habituation in which his eyes were dimmed and unrecovered, he’d make a fool of himself, and they’d say he came back from above with ruined eyes and the trip wasn’t even worth the attempt.  And if they could get their hands on the one who was trying to release them and lead them upward, wouldn’t they kill him?”

“Most violently,” Glaucon replies.

Now anyone even a little familiar with the story of the life of Socrates is likely to recall, when hearing this description, what actually happened to Socrates himself because of his devotion to philosophy, and his constant questions about the nature of things other Athenians took for granted: the Athenians sentenced him to death.  (We might also be led to think of Jesus, whose early followers called him “the light of the world,” 5 Matthew 14; see also 8 John 12.)  And we can all understand the factual basis for the image: whether we go into the light from the dark, or the dark from the light, our eyes need some time to adjust to its surroundings.  It is a often a struggle to learn something new; and it is sometimes difficult to see things from the point of view of others who haven’t.

I have taken this time to recall to you Plato’s image of the cave in some detail, because considering it may suggest answers to the central questions raised by my subject:  First, why has classical teaching and learning declined so much in the last half of the twentieth century?  And, second, what have we lost and what further may we be in danger of losing by that decline?  To help get your attention to what I am about to say, let me give you my short answers to these questions:  First, what we have lost: We have lost an appreciation of the paramount importance of seeking to understand the nature of the human soul and spirit. And what are we in danger of losing?  We are in danger of losing the democratic civil liberties that are the greatest legacy of classical learning and teaching, and sinking voluntarily into a disguised, but nonetheless progressive and degrading, slavery to our economic, material existence. That is why I say that the topic of my remarks is far from merely an academic subject.

II.  The Decline

 

Before giving you the reasons for these sobering conclusions, let me define, or at least describe, what it is we are talking about.  When I was a high school student in Philadelphia in the 1950’s –nearly half a century ago– it was assumed that if you were headed for a college education, you would probably study Latin.  Fifty years before that, it would also have been assumed –among the very few then privileged to plan a college education– that they would probably also learn some ancient Greek.  Now, of course, the reverse assumptions are made.  I do not know the statistics, but we can take informal notice of the fact that the study of Latin and ancient Greek in our public and even private schools is now uncommon, even rare.  Likewise, in the 1950’s, a general liberal education was presumed to include at least two years of introduction to what has been called “the canon:” a study of the greatest works of Western literature, beginning with the ancient Greek philosophers, playwrights, and historians.  In fact, for most of nearly 2000 years, no person who sought to be educated would have failed, for example, to read either Euclid’s Elements of Geometry or Plutarch’s Lives of The Noble Grecians and Romans.  The twentieth century “canon” also embraced what Robert Hutchins called the writings of the “Great Conversation:” works which assumed some acquaintance with the great ancient writings and, philosophically, continued the inquiries the ancient Greeks had so notably begun.  When I speak of the abandonment of “the classics,” I therefore mean to include those works of the Renaissance, the Enlightenment, and of modern times that acknowledge the continued importance, in our search for human understanding, of considering what the ancients had to say.  Alfred North Whitehead, for example, a great twentieth century mathematician and natural scientist, famously observed that whenever he (Whitehead) approached a philosophic problem, “he met Plato coming back.”  He also said that “all of Western philosophy is a footnote to Plato.”

The gradual decline in classical teaching and learning that began after World I  — when extended formal education became more and more common– accelerated after World War II.  In the late 1950’s, after the Russians launched Sputnik, the first man-made satellite, the subordination of liberal learning to contemporary physical science gave a shock to the classics.  The flower power movement of the late 1960’s, launched nearly contemporaneously with the free speech movement at the University of California, began a radical questioning of the value of classical studies in higher education.  It instituted student demands for greater control over the curriculum which led, finally, to total rejection of the idea that to be educated meant, at least partly, to be educated in the classics.  The “canon” was condemned as the bastion of “dead white males,” unfairly depriving students, first, of familiarity with cultures other than that of Western civilization; and, second, of introduction to subjects perceived to be more immediately “relevant” to the ordinary anticipated challenges of everyday life.  By the early 1980’s, even Stanford University had abandoned the requirements of its traditional core curriculum, and faculties of colleges and universities throughout the United States trembled –and I mean literally trembled– at the increasing demands of students for more “relevant” and “politically correct” curricula of their own choosing.  The faculties trembled in their classical convictions, and then they fell, mostly in the name of greater democracy in education.  The result has been an increasing ignorance –I would say a generally abysmal ignorance– of the philosophical and spiritual roots of that democracy itself.  Nominally “well educated” young people are, typically, now almost entirely ignorant of the seminal teachings, both secular and religious, of Western culture.  The scope of such ignorance is often astounding.  It commonly includes ignorance, not only of the ancient, Renaissance, and Enlightenment legacies of philosophic thought and Judeo-Christian doxology, but even of the chief events of World War II.  In the broadest descriptive terms, this is the kind of educational loss we are talking about.

 

III. The Nature of The Loss

 

“And a good thing, too,” many will be apt to say.  In the following remarks, I will summarize, as forcefully as I can, the major arguments of those who are happy to see classical teaching and learning rejected as a standard for higher “liberal” education.

It is no accident, these opponents of classicism might confidently assert, that the decline in classical education started after World War I and rapidly accelerated not long after World War II.  Ten million people were killed in World War I; twenty million in World War II.  These atrocities of the first half of the twentieth century testify to the bankruptcy of the classical ideal of education and classical modes of thought in terms of advancing the human condition.  World War I was entered into by government leaders, and fought by a European officer corps, entirely educated in the classical tradition.  Both the Nazis and the Italian Fascists sought to imitate ancient pagan glories even in their architecture, as their World War II conquests progressively enslaved the democracies of Europe.  The Germans were, moreover, the greatest classical scholars of the nineteenth and twentieth centuries.  Nearly ten million Jews, Slavs, Gypsies, and other Non-Nordics were slaughtered in the name of a pagan ideal as interpreted by the Nazis.  Nor were these the only 20th century political catastrophes related to classicism.  Thirty million or more of the Soviet people were butchered by their own regime in the name of Marxist-Leninism and Soviet Communism.  Karl Marx was deeply educated in the classics; in fact, a great classicist.

In contrast, these opponents of classicism may go on to argue, look at what the 20th century has given us as a result of greater education in the sciences rather than wasting hours contemplating abstract speculations of classical philosophers and theologians: Epidemic disease has been conquered to a degree that would never have been imagined in the ancient world.  In developed countries, we have now arrived at a point where there is more than a fifty percent chance that a girl born today will live past 100.  Longevity has been greatly increased, and both the incidence and risks of serious illness and disease have been greatly reduced, in advanced societies.  Moreover, if economic prosperity is a human good, look at what has been happening here, and in Europe, and in Asia, since we generally got beyond the classics in Western education.  The developed nations of the world may, at this very moment, be enjoying the most prosperous times in world history.  Technological advancements have brought the peoples of the world closer than they have ever been, and one does not have to read Plato, or Aristotle, or Sophocles, or even Alfred North Whitehead, to operate a computer or start up a dot com bringing new economic efficiencies to the world.

Finally, these successful iconoclasts may argue, as to a more democratic rule in education: How can you possibly object to the principle that a student should be free to choose to study whatever the hell he or she wants to study, and not what someone else tells the student is best for him or her?  Isn’t that what democracy is all about?  It is my life, and I should be free to choose how I spend my own dollars and my own time in my own education.

I take the preceding and kindred arguments to be the chief justifications –historical, philosophic, moral, political, social, and academic– for minimizing, if not altogether eliminating, study of the classics from higher education in America.

How can these diatribes be answered?  Let me begin with the later arguments first, the ones about how well we have been doing materially without an emphasis on the classics as a necessary, or at least highly desirable, part of higher education.

It cannot reasonably be disputed that modern medicine and technology have generally advanced our physical and economic well-being.  Furthermore, although the ancient Greeks were among the first human beings we know of who inquired methodically into the nature of the material world, they have very little to teach us about the applied sciences.  Except, of course for their original foundations in observation, logic, and mathematics.  It is worth pointing out in this connection, for example, that Charles Darwin, commenting on how he arrived at his theory of evolution, said “Linneaus and Cuvier have been my two gods, though in different ways.  But they were mere school boys compared to old Aristotle.”  (Aristotle’s  biological and botanical classifications are, by the way, still used in those sciences.)

The valid claims for the gifts of modern science do not, however, dispose of the question at issue.  The question about the relative value to us as human beings of educationally devoting ourselves to applied science (that is, seeking to learn how to manipulate the material world to our benefit) as opposed to inquiring into the classical questions of moral philosophy (such as “What is our nature as human beings?” “Is there a human nature?” or “What is a good life?” or “What is justice?”) is not a 20th century question.  It is a question, in fact, that was first raised by Socrates in the fourth century B.C.; and it was his answer to this question that cost him his life. In Plato’s dialogue, the Apology, Socrates tells us that when he was a young man, he was intrigued by the inquiries of  natural philosophers such as Anaxagoras into the nature of the physical world.  (Anaxagoras is perhaps the first known person to identify the moon and other heavenly bodies as entities which were as material as the earth, and not composed of more ethereal substance.)  But Socrates concluded that inquiring into the nature of the material world was not as important to him as other inquiries.  He thought the most important thing he –or any other human being–  could come to know and understand was himself, as the Delphic Oracle told him he should try to know.  And so the Delphic admonition, KNOW THYSELF, became the wellspring of Western philosophy.

If we want to see what we have lost from our virtual abandonment of classical learning and teaching, we need to think about the choice that Socrates made.  His choice was one that involves reflections and decisions each one of us is still free to make.   It was a choice that proceeded from the opinion that an unexamined life is not as likely to lead to realization of the best in us as an examined life.  It is a choice that includes consideration of what critical thinking is; what the alternatives are for our human conduct; what these alternatives presuppose or imply; and how we can make the most practical, prudent judgments about the course of our lives in relation to particular situations.  So if we do not want to live mechanical lives  –lives shaped mostly, or even entirely, by things outside ourselves– but, rather, want to reflect upon who we are sufficiently to increase our chances of living with integrity to ourselves, then we must consider the wisdom of the choice Socrates made.  He chose to devote his life to inquiring into the nature of human being and our ethical and spiritual condition.  As I shall argue, abandonment of classical learning in its larger sense is, in essence, an abandonment of that Socratic inquiry.

Unlike the progressive findings of applied science, the most recent opinions about our ethical and spiritual condition are not necessarily the best or the most illuminating.  In this sphere of human concern, “newer” is not always “better.”  In certain respects, the ancients had a firmer and clearer grasp than most celebrated moderns do of the character of our human condition.  In this assertion,  I share Professor Bernard Williams’ opinion, expressed in his fine book, Shame and Necessity (University of California Press, 1993), that when we study the ancient Greeks, we are looking at ourselves.  “The Greek past,” Williams has written, “is specially the past of modernity…The modern world was a European creation presided over by the Greek past.  In some ways, the basic ethical ideas possessed by the Greeks were different from ours, and also in better condition” (emphasis added).  Or, as the poet Shelley wrote more enthusiastically: “We are all Greeks.  Our laws, our literature, our religion, our arts have their roots in Greece.”

Who can ever know who he or she is, if they do not inquire into how their past has shaped them, and what implicit choices they have made about the character of the lives they are living, not deliberately and consciously, but by influences that have shaped them?  None of the writings of Plato, Sophocles, St. Augustine, Rousseau, Hegel, or Freud (to take just a few examples related to the quest for self-knowledge) is now generally required undergraduate or university reading.  Such condoned ignorance about the most thoughtful inquiries into human nature compounds the difficulties for anyone wishing to follow the Delphic admonition to Know Thyself as the first principle of philosophy for mature intellectual souls.

And this brings me back to the first, and perhaps most chilling arguments against classical education: Its alleged identification with the tragedies of World War I, World War II, and 20th century totalitarianism.  The answer to those arguments is essentially this:  They are exactly wrong.  The twentieth century has provided perhaps the greatest examples in all recorded history of the tragic consequences of the abandonment of classical moral thought and, later, the influence of corrupted and misunderstood ideas upon human events; consequences that have rightly moved its surviving victims to say “We must never forget.”

The German Kaiser, intoxicated with his personal power as Emperor and arrogantly determined to expand it, had relieved from the helm of his government one of Europe’s most prudent statesmen, his Prime Minister Otto Von Bismarck.  It is now known that almost immediately after the order had gone out from the Kaiser to his general staff to commence the hostilities of World War I, the Kaiser, realizing the tragedy that was about to unfold, tried to stop it.  But it was too late.  The technology of the early 20th century military machine had been unleashed, and could not be stopped in time to undo it.  In response to the invasion of Belgium, the idealistic young men of England, following their patriotic ideals (and belief in a short war) enlisted in a war led by a general staff that stupidly refused to adjust its critical thinking to the technology of modern warfare, leading to the truly tragic slaughter of almost an entire generation of fine English youth.  One does not have to be a Platonic scholar to conclude that it was not anachronistic classicism that led to this slaughter; it was, rather, ignorance and disregard of the importance of the classical virtues of prudence, temperance, and even courage.

As to the Soviet regime, its chosen philosopher, Karl Marx, had abandoned classicism for a “dialectical materialism” he invented, a conceptual engine derived from Hegel’s logic but loosely founded on ideas of applied (sociological) “science.”  The Soviets prided themselves on the “scientific” nature of their regime –and its godlessness.  And though Nietzsche was an ideological foe of organized Christianity and more skeptical even than Socrates, he would have detested the Nazi version of the “superman” as a totally ignoble perversion of his vision of human being at its best.  The Nazi ideologues were, moreover, supported in their fanaticism by a philosopher –Heidigger– who specifically rejected the ancient classics (Socrates’ thinking in particular) as the source of what he called a “magnificent error.”

The tyrannical corruptors of twentieth century political life were partly motivated by a will to personal power, and partly by claims related to the achievement of human “freedom” as they claimed to envision it.  The idea of “freedom” is one of the paramount –perhaps the paramount– political idea of our world civilization.  The classical idea of freedom was grounded on an understanding of human nature and the duties of ethical behavior.  We must carefully consider what abandonment of attention to this idea of freedom may mean.  Is a healthy future even possible for any civilization in which the idea of “freedom” becomes progressively confused and identified, not with duty, rationality, and ethical behavior, but with greater and greater individual license, and absorption in the pursuit of narrow material self-interests?  Both Plato (in the Republic) and Alexis deTocqueville (in his prophetic work, Democracy in America) expounded the tendency of democratic peoples to turn liberty or freedom to license, and to forget the importance of duty and rational moral behavior as indispensable to the best and wisest possible realization of human being, whether in community or individually.  Where is there now, in our technological consumer society, anything with a power even remotely comparable to this tendency –the now socially approved tendency to look out only for ourselves– to help remind us of its possible consequences, and to help combat it?  It is classicism that reminds us, as the ancient Greeks thought and believed, that our human being is inseparable from our shared community with other human beings.  In Aristotle’s maxim: “Who would live alone…is either a beast or a god.”

In sum, among the things we have lost in our abandonment of classicism –and I won’t even mention in detail the aesthetic sublimity of its literature– is promotion of an understanding of what it means to live free in community with others, through the use of prudent reason as a guide and regulator of our self-interested passions; a deepened understanding of our ethical and spiritual condition, rather than an almost exclusive preoccupation with our economic and material habits and aspirations.  The  characteristic disdain of contemporary Western culture for the timeless teachings of classicism, is a potentially tragic misdirection; one that threatens to disenable us from achieving our fullest human potential as we swim more and more deeply into the materialistic consumer morass.  And this brings me to what I regard as the greatest potential future loss we may suffer as a result of the decline in classical teaching and education: the actual threatened loss of our democratic freedoms.

 

IV. What We Are in Danger of Losing

 

We are confronted, right now, here in the United States, with a potentially fatal Constitutional crisis of epochal proportions; one that is, however, virtually invisible to the vast majority of our people except in certain of its effects.  This crisis is directly related to the decline in respect for classical education as understood by the Founding Fathers of our democratic republic.  It revolves around the specific question: how should the United States Constitution be interpreted if those who interpret it are to carry out the original intent of its framers?

The characteristic twentieth century ethical and philosophic view is one that may be called “historicist relativism.”  It is cogently expressed in the view that “there are no absolutes;” that all opinions are no more than the expression of a set of biases local to a specific time and place (including, of course, the view that all opinions are just the expression of the biases of a specific time and place).  The dominant scholarly view of what law itself is, reflects this 20th century relativism.  It began its ascendancy in American legal thought with an opinion by Justice Oliver Wendell Holmes, Jr. in 1928.  In a case called Black and White Taxicab Co. vs. Brown & Yellow Taxicab Co. (276 U.S. 518, at 533-34, 1928), Justice Holmes rejected as a “fallacy and illusion” the idea that judges might be able to discern, through reason, enduring principles forming the substance of the common law.  Justice Holmes declared in that opinion:

“If there were such a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute, the Courts of the United States might be right in using their independent judgment as to what it was.  But there is no such body of law.”

We need to consider this statement of Holmes’s in the light of Plato’s metaphor of the cave.  Viewed from the classical perspective, Justice Holmes was declaring in this opinion: “There is no fire; there is no sunlight.  There are only shadows.”  Holmes’s opinion was a seminal expression of a view of the law called “legal positivism” or “legal realism.”  It is a view holding that the law has absolutely no moral basis other than what a majority of people, or their representatives in a democratic republic, say the law is.  Under this opinion of what valid law is, if a law were duly enacted through established procedures –say by a Constitutional Amendment– declaring, for example, that the property of all people of Greek-American descent, or Jewish blood, or Islamic faith, was to be forfeited to the State, and that all such people were to be interned in concentration camps –or worse– there would be nothing inherently unjust about it, as much as you might personally dislike it!  For justice is defined totally, under this view, by what a majority of people say that it is.

This is not the view of the law taken in the 18th century by Thomas Jefferson; or in the 19th century by Abraham Lincoln; or even in the 20th century by advocates of conscience such as The Reverend Martin Luther King, Jr..  But it is the dominant view among legal theorists today; and not only academics, but the view of many of our most powerful judges.  The view of the foundations of law taken by Jefferson, and Lincoln, and King, was that expressed in our Declaration of Independence: that the “laws of Nature and of Nature’s God” endowed all men, who are “created equal,” with certain unalienable rights, and that among these are the rights to “Life, Liberty, and the Pursuit of Happiness.”  Lincoln’s view, in other words, was, like Jefferson’s, that the principles of the Declaration of Independence were intended by the Founders, following their Enlightenment beliefs, to be written into the U.S. Constitution.  Lincoln believed, in effect, in principles of natural right and natural law, generally in accord with the idea of law propounded by St. Thomas Aquinas, namely, that law, properly understood, had, by definition, to be

an ordinance of reason
for the common good

promulgated
by those who are at the head of a community.

This Thomistic definition of law has its roots, in turn, in the teachings of ancient moral and political philosophy; more specifically, in the writings of Aristotle.  It was on the basis of this view of the law that Martin Luther King, Jr. was able to say that his famous “I Have a Dream” speech at the Lincoln Memorial in 1963 was a call to the conscience of America to make good on its promises in the Declaration of Independence.  It is on the basis of this natural right view of the law, that we can say a law that is unjust cannot command our consciences, even though we believe in the principle of majority rule.  As Thomas Jefferson said in his First Inaugural Address:

“All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”  (emphasis added)

In contrast to the natural right view of the law held by our Founding Fathers, a number of the present Justices of the United States Supreme Court –including the Chief Justice, and perhaps even the present majority of Justices– have declared themselves to be legal positivists, opposed to the Lincolnian view of the Constitution and the principles of natural right and natural law referred to in our Declaration of Independence.

Let us consider for a moment, the likely potential practical consequences of this state of affairs.

We are an increasingly diverse society, enjoying the liberties of a democratic republic for a longer period than that enjoyed by any great power in world history.  We have entered into a period of moral relativism in which the dominant public ethos is one of fierce individualism and an almost obsessive consumerism.  The most powerful interpreters of our laws –and, indeed, the major portion of the legal profession as a whole– accepts no compelling moral basis for the nature of our law other than the principle of majority rule.  In fact, they are imprudently dogmatic in the view that there are no absolutes.  The classicist approach to matters of human being is, on the contrary,  not intrinsically dogmatic.  It is skeptical: it asks questions, and more questions, and more questions.  But it holds to the view that there is a human nature, and part of its nature is endowed with reason and right.  Is not abandonment of this view in our highly diverse society a recipe for increasing social discord among competing groups? Is not such rejection of all principles of conscientious reconciliation –other than the force of a majority– a guarantor of increasing discord in a highly individualistic, fragmented community?  And if such discord escalates to the point of regular, traumatic violence –as it nearly did in the decade of the nineties– isn’t it likely that the public at large –the majority– will be willing, increasingly, to narrow the scope of our civil liberties to obtain greater civil security against violence?

This is the ultimate future prospect we face from the progressive decline of respect for classical teaching and learning, and the timeless human search for enlightenment as to the nature of our human being.  It is an abandonment of what classical learning has to teach us in the false name of democracy, from a shadowy view of individual self-fulfillment, and from a short-sighted elevation of material well-being above concern with our full human character as material and spiritual beings.  It is an insistence that we return to the cave, and continue to stare at the wall, and deny the existence of a clearer light.  In this situation, I genuinely fear for my grandchildren’s future freedom.  What, I wonder, can we do about it?

 

(C) January 23, 2001 Harrison Sheppard

 

The War on Terrorism: The Conflict Between Liberty & Security

Published in The Hellenic Journal, November, 2004
A Talk to the Hellenic Law Society, San Francisco, October 14, 2004

 

It has been just over three years since the Twin Towers in New York City were destroyed in what may be considered the single most horrifying and destructive act of foreign aggression on the territory of the United States in its history.  That day, according to the President of the United States and others, “has changed everything.”  “Everything” is a lot, surely too much, and I presume it is wise not to take this declaration too literally.  One thing it appears to have changed, however, is the degree of the U.S. government’s willingness to engage in “preemptive” war as part of the “war on terrorism” declared by the President following the Twin Towers (and Pentagon) disaster.   Citing the war on terrorism as part of his justification, and as a preemptive strike against possible use of weapons of mass destruction against the United States, the President ordered the invasion of Iraq.

I do not intend in this talk to contribute to the current debate about Iraq. Whether the invasion of Iraq was justified, or the extent to which it has or has not been “successful,” or is likely to bring democracy to that country, or even whether it has reduced or increased terrorism against the United States, are not the subjects of my remarks.  Nor is the war on terrorism as it is being conducted against other nations, their leaders, or identified foreign terrorists the occasion for this talk.  It is exclusively concerned with the war on terrorism as it is being conducted in effect by the government against U.S. citizens by detaining them indefinitely in prisons or military facilities in the U.S. and abroad, especially in Guantanamo Bay, Cuba.  These actions are now being challenged in U.S. courts.

The title of this talk is, therefore, The War on Terrorism: The Conflict Between Liberty & Security.  Following Euclid’s method of enunciating geometrical propositions before demonstrating their truth, I will first plainly summarize, in two propositions, my view of the government’s position in the detention cases:

(1) The position of the U.S. government in the citizen detention cases is a repudiation of fundamental principles of Anglo-American law developed over the past 800 years, beginning with Magna Carta in 1215, advancing the democratic rule of law and the cause of human liberty against tyrannical government.

(2) To the extent that the government’s position is allowed to prevail, we will have lost some of the most important liberties for which our American republic stands, and made very long and possibly decisive steps toward dictatorial rule.

Let me begin to demonstrate the reality of these propositions by first acknowledging some relevant facts of American political history, as well as our personal habits, inclinations, and choices as we consider the conflict between liberty and security in the conduct of our own lives.

The present administration is not unique in asserting powers beyond those authorized by the U.S. Constitution during wartime, or even during times of threatened war.   In 1798, during the administration of John Adams  –the second President of the United States— the U.S. feared possible war with France, then in the throes of its Revolution.  On July 14, 1798  –Bastille Day, France’s Fourth of July– Congress, consistent with Executive policy, enacted legislation that seriously curtailed American civil liberties.  The “Alien and Sedition Acts,” as they were called –the “PATRIOT ACT” of its day– provided that any person, alien or citizen, could be fined up to $5,000, and imprisoned for up to five years, for undertaking to oppose or defeat the operation of any U.S. law or

threaten any officer of the U.S. government with any danger to his character, person, or property, or attempt to secure any insurrection plot, or unlawful assembly or unlawful combination (emphasis added).

These Acts also provided that anyone could be prosecuted for printing, writing, or speaking in a scandalous or malicious way against the government of the United States, either House in Congress, or the President, with the purpose of bringing them into contempt, stirring up sedition, or aiding and abetting a foreign nation in hostile designs against the United States.1

What this meant  –and was interpreted to mean—was that anyone who, for example, expressed an opinion such as that “John Adams is a damned fool,” or “John Adams doesn’t know what he is doing in carrying out an anti-French policy,” could be thrown in jail for five years.  In fact, under this Act, Benjamin Franklin Bache, Benjamin Franklin’s grandson, was ordered arrested by a federal judge for printing a newspaper article questioning the integrity of a document sent to Congress by President Adams.  The Alien and Sedition Acts so alarmed Thomas Jefferson (who was John Adams’s Vice-President), that Jefferson urged his home state of Virginia and other States to adopt resolutions providing that Acts of Congress in violation of the Constitution could be “nullified” by the States.  Congress made it clear, however, that due process of law would still be observed in enforcing the Alien and Sedition Acts, and that truth was admissible in defense.  The Alien and Sedition Acts expired in 1801, at the end of President Adams’ term of office.2

We don’t have to go as far back as the 18th century to find serious compromises of American civil liberties by Congress during times of war or threats of war.  Similar acts were passed during World War I, and a lot of people during that period –mainly, but not exclusively, resident aliens– were rounded up by the U.S. Government, arrested, and jailed for suspected “sedition.”  It was during this same period that one federal official obtained recognition as an especially effective “patriotic” American law enforcer; his name was J. Edgar Hoover.

Some members of this audience may be old enough to have been aware of the internment of Japanese Americans during World War II under Executive authority.  Many of you will recall that Congress –confessing governmental injustice– awarded reparations in the 1990’s to Japanese-American citizens for those unconstitutional internments.3 Finally, I am sure there are people here this evening  who recall, during the height of the Cold War and what has come to be known as the “McCarthy era,” Presidential Executive Orders and Congressional Acts requiring “Loyalty Oaths” and disclosures of political affiliations as conditions for federal and state employment or federal funding  –even, for example, to obtain federal college, university, or law school tuition  loans.  As you know, George Anastaplo, a great Greek-American honored with this Society’s first Athenian Award, had the principled courage to refuse to answer questions about his political beliefs when questioned about them  as a condition of admission to the Illinois State Bar by the State Supreme Court’s “Committee on Character and Fitness.”  Anastaplo relied for his refusal upon the political principles stated in the Declaration of Independence, and his First Amendment rights under the U.S. Constitution.  He was refused admission to the Illinois State Bar because of that principled courage, and then lost his appeal to the U.S. Supreme Court (which he argued before the Court himself) in a 5-4 decision that has evidently been overruled by later cases.  Anastaplo had the satisfaction of reading Justice Hugo Lafayette Black’s concluding words in his eloquent dissent in the Anastaplo case (which Black requested be read at his own funeral as his political testament) namely, “We must not be afraid to be free.”

What can or should we make of all this?  We can certainly infer that the government is inclined to be quick to put security above liberty when a policy relating to war is involved   –whether it is an actual fighting war, a “Cold War,” or even a threatened war.

The inclination to prefer security over liberty in threatening circumstances is an understandable one.  It is reflected in the priorities we ourselves adopt virtually every day in our personal lives.  Do you lock the door when you leave your home or apartment?  That’s a small surrender of your liberty to come and go as you please without locks and keys, a choice you make to avoid threats to the security of your property and person.  Will you agree to stay indoors if you hear an emergency alert on the radio, and the government instructs you to do so?   I myself recently did that in Cuba, at a hurricane alert. Do you avoid travelling on certain streets in certain neighborhoods in certain cities, at least at certain hours of the day or night, out of a concern for your safety?  Most of us do.  We thus often surrender voluntarily a portion of our liberty in the interest of greater security.

We are regularly accustomed to making choices in favor of greater security at the cost of less liberty.  We may say that life itself consists of a constant balancing between the relative weight we give to our liberty and to our security.  I might want to take the liberty, for example, to spend all the available money I have on a world tour, but that would threaten my financial security for years to come, so I choose not to give myself that liberty.  We say some people are less “risk averse” than others; meaning they are more willing to jeopardize their security in favor of gaining greater liberty and exercising a wider range of choices.   We call those more “risk averse,” who are content to lead highly restricted lives, taking minimal risks in order to maximize their security.  However we may strike the balance between liberty and security for ourselves,  the impulse to favor security over liberty, when there are known threats to our security, is entirely predictable, and understandable.

Something else, however, perhaps something much greater, is at stake when we permit the government to make the choice of greater or lesser liberty for us.  Where do we want the government to strike this balance?   How much liberty are Americans, as a people, willing to give up for the sake of protecting perceived threats to our national security?   How much difference does it make to us when we are not given the essential facts?

Let us look at the present U.S. government’s position on how much liberty we should give up to secure ourselves against terrorism.  Prof. Douglas W. Cassel, Jr. summarized the government position in a breakfast talk to members of the American Bar Foundation on August 6, 2004 as follows.  (I will be quoting further from Prof. Cassel’s talk):

The government’s theory in these cases is that the President, as Commander in Chief, on the basis of secret information unknown to anyone outside the Executive Branch, has the authority to designate an individual as an enemy combatant, to imprison that person with no prior judicial authorization or express congressional authority, to hold that person in prison without access to a lawyer, without access to courts, without charging the person with a crime, without conducting any trial, and without having due process of law.

Moreover, the President has asserted this authority to imprison the person indefinitely without limit in time.  The only limit was until the war on terrorism is over.  And…when will the war on terrorism be over, and how will we know if it ever does end?4

Make no mistake about what this means.  This means that the present government of the United States is asking each one of you to surrender to the President:

(1) your right to know the information the federal government has if it chooses to arrest and imprison you, or a member of your family, or a friend, as a suspected collaborator with a suspected terrorist or “armed combatant,” even though none of you has ever even heard of the suspect;

(2) your right to know the charges that may be filed against you that are the basis for your imprisonment;

(3) your right to communicate with anyone of your choosing;

(4) your right and liberty to contest the government’s claim in any court;

(5) your right to a lawyer and the liberty to defend yourself against the government’s claim; and

(6) your right to know when you, or a member of your family, or a friend will be freed from prison; in fact, your or their right ever to be released from prison until the government declares that the war on terrorism is “over.”

Is this the balance between liberty and security you are willing to strike in the conflict between liberty and security in the present war against terrorism?

The question I have just posed is not merely rhetorical, and I do not presuppose its answer.  Before I offer you further evidence in support of the two propositions with which I began this talk, we need to consider what may be the best argument for the government’s position, particularly as it has been advanced by the Attorney General of the United States in the detention cases.  I believe I can understand much about how and what the government is thinking, having served as an attorney for the U.S. Department of Justice and the Federal Trade Commission in Washington, D.C. and elsewhere.  Here’s the case: We are confronted with what may be the greatest threat this country has ever faced from foreign aggressors.  It is well within the range of possibility that terrorists are presently planning to buy on the black market in arms, or develop with what they can acquire from that market, one or more nuclear weapons capable of being brought into this country and detonated.  I am reasonably confident that this worst-case scenario is in the front of the government’s mind.  A nuclear weapon detonated in New York City, for example, could mean the death of millions of Americans.  In light of this possibility, squeamishness about compromise of our civil rights for actions sincerely directed toward avoidance of this terrible threat may seem misplaced to those responsible for assuring our national security.  The question is, however, whether disregard of the civil liberties guaranteed to U.S. citizens by our Constitution is a necessary part of the unprecedented degree and kind of vigilance the government seems to think this awesome threat requires.  In other words, even assuming the good faith of those who want to lower the constitutional barriers to unfettered exercise of the Executive powers of government, does our ability to avoid this threat really require us to put aside concern for maintenance of our constitutional safeguards against the excessive exercise of the police power in particular?

Law enforcement officers are commonly dissatisfied with the ways in which our constitutional system impedes the efficiency of their investigation of criminal acts.  Some may even long for the good old days when a suspect’s confessions could be compelled by interrogations amounting to torture, and warnings about suspects’ rights to counsel and silence were not required by the Supreme Court’s interpretation of the Fifth and Fourteenth Amendments.  The problem is that this kind of thinking inevitably leads to abuse.   If you assume a particular suspect is guilty, and you don’t have to worry about the Constitution, the temptation may be irresistible to turn mistaken assumptions into convictions by means that falsify the evidence or compel its fabrication.  This approach completely contradicts, of course, our constitutional presumption of innocence.

If you know anything about the Declaration of Independence and the First Ten Amendments to the U.S. Constitution –our Bill of Rights– and you value them as statements of our “unalienable rights to life, liberty, and the pursuit of happiness,” and the guarantee of our civil and political rights as citizens of a democratic republic, then I suspect the balance that the government has struck between security and liberty in the position it has taken about Presidential power is not the balance you would want the government to strike for you.  A majority of the Members of the U.S. Supreme Court appear to reject the government position on precisely these grounds.5

U.S. Supreme Court Justice David Souter, in an opinion in which Justice Ruth Ginsburg concurred, had this to say about the Executive’s power to make the choice for us in striking the balance between liberty and security:

The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each.  In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security.  For reasons of inescapable human nature, the branch of Government asked to counter a serious threat is not the branch on which to rest the nation’s entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory. Justice David Souter, concurring in part and dissenting in part in Hamdi v. Rumsfeld, –U.S.—, Decided June 28, 2004 (emphasis added).

Justice Souter voiced this opinion in a case in which a U.S. citizen, Yasar Hamdi, was arrested as a suspected “enemy combatant” on the basis of government allegations that he had received military training in Afghanistan, which Hamdi denied ever having done.  He was imprisoned for more than two years in the Norfolk and Charleston Naval Brigs, without ever being told what the charges were against him, without being given access to legal counsel or to any court, until his father filed a habeas corpus Petition for his release.  In a plurality opinion written by Justice Sandra Day O’Connor in the Hamdi case, the Supreme Court vacated a lower court ruling favoring the government, and remanded the case for further proceedings consistent with due process standards the Court said the government was required to follow, including recognition of Hamdi’s right to legal counsel and a formal hearing.

The most instructive and, in my judgment, correct opinion in the Hamdi case, however, was the dissenting opinion of one of the most conservative Members of the Court, Justice Antonin Scalia, who said that Hamdi was “entitled to a habeas decree requiring his release unless (1) criminal proceedings [were] promptly brought, or (2) Congress has suspended the writ of habeas corpus.”

The end of Justice Scalia’s dissenting opinion directly addressed our need to balance liberty and security in threatening times with these words:

The Founders well understood the difficult tradeoff between safety and freedom.  “Safety from external danger,” Hamilton declared “is the most powerful director of national conduct.  Even the ardent love of liberty will, after a time, give way to its dictates.  The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security in institutions which have a tendency to destroy their civil and political rights.  To be more safe, they, at length, become willing to run the risk of being less free.” The Federalist No. 8, p. 33.

The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis –that, at the extremes of military exigency, inter arma silent leges.  Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.  Because the court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent (emphasis added).

Justice Scalia’s dissent in the Hamdi case is not only instructive; it was virtually prophetic.  Without taking the trouble to subject Mr. Hamdi –or itself– to the rigors of due process required by the Court’s plurality opinion, the government has now released Mr. Hamdi from custody, evidently unable to compose any colorable legal charge against him.  This is, in my judgment, strong evidence, if not virtual proof, of the injustice of Hamdi’s original and extended incarceration without due process of law.6

The views of U.S. Supreme Court Justices I have quoted reflect Prof. Cassel’s observation, in his American Bar Foundation talk, that the detention cases are “some of the most important decisions the Supreme Court has had to make in the history of our Constitution.”  Cassel made this judgment in part by recalling Benjamin Franklin’s answer to a woman’s question after the Constitutional convention had just ended, as to what kind of government we had been given.  Franklin’s famous reply was, “A republic, madam, if you can keep it.”

Prof. Cassel also based his judgment of the unprecedented importance of the detention cases on a review of seven safeguards the Founders believed were needed to secure American liberties.  I will list these safeguards in the order in which Prof. Cassel did:

(1) The Rule of Law: the idea that no person, including the President or any other government official, is above the law or beneath the law’s notice.

(2) Constitutionalism: the government only has those powers expressly or implicitly given to them under our Constitution.

(3) The Separation of Powers under the Constitution, and its system of checks and balances.

(4) An Independent Judiciary, secure in its tenure, and with the power to review the constitutionality of Executive actions.

(5) Due Process of Law, “proclaimed for the first time in our tradition eight centuries ago in the Magna Carta.”

(6) The Writ of Habeas Corpus, requiring the government to justify to a court of law the reasons for imprisonment of any citizen.

(7) Respect for the Law of Nations, articulated in the Declaration of Independence as “a decent respect for the opinions of mankind,” and embodied in the Constitutional rule that treaties ratified by Congress are the Supreme Law of the Land.

To this list, Alexis de Tocqueville, in his enduring and often prophetic book, Democracy in America, added three institutions he thought necessary to help preserve American liberties and prevent or mitigate despotic government: (1) the American legal profession; (2) the voice of private voluntary associations (such as the Hellenic Law Society); and (3) a free press.7

It is not known for certain whether Alexander Hamilton or James Madison, or both of these members of the Constitutional Convention, wrote No. 51 of The Federalist.  These words appear in that number of the series of documents whose exposition of the U.S. Constitution is as close and as definitive a reading as we can get of the intent of the Founders in framing our constitutional system:

Justice is the end of government.  It is the end of civil society.  It has ever been and ever will be pursued until it be obtained, or until liberty be lost in its pursuit.

 

I respectfully suggest that the members of this Society should think about these words, and hope that we Americans, as a people, will not lose sight of their importance.  I have elsewhere pointed out ways in which the American legal profession is no longer typically behaving the way Tocqueville said it should behave to protect our liberty,8 although Prof. Cassel’s talk gives us reason to applaud the American Bar Association and the American Bar Foundation leadership on the issue we are discussing this evening.  With respect to the encroachments on our civil liberties summarized by Prof. Cassel, we need to ask: Where is our “free press” in reporting and challenging them?  The government’s domestic policies relating to its war on terrorism deserve daily front page attention by every one of our major newspapers, and feature treatment in every major network television news broadcast until the polices I have criticized are clearly repudiated.

The opinions of the Supreme Court Justices I have quoted, their authoritative view of the Founders’ intentions in striking the balance between liberty and security, together with the summary of Prof. Cassel’s analysis and my own, constitute my proof of the two propositions enunciated at the beginning of this talk.  If you are persuaded by the demonstration, I would be justified in pronouncing “Q.E.D,” and restating the propositions as conclusions:

(1) The position of the U.S. government in the citizen detention cases is a repudiation of fundamental principles of Anglo-American law developed over the past 800 years, beginning with Magna Carta in 1215, advancing the democratic rule of law and the cause of human liberty against tyrannical government.

(2) To the extent that the government’s position is allowed to prevail, we will have lost some of the most important liberties for which our American republic stands, and made very long and possibly decisive steps toward dictatorial rule.

Belief in the truth of these  propositions suggests to me that one of the critical security needs we have now, is the need for authoritative assurances that the present governmental threats to our liberties cannot stand, and will not prevail.  If we are not to be afraid to be free, we must also not fail to be on our guard.

 

 

(C) 2004, Harrison Sheppard


1 As quoted by Gore Vidal in Inventing a Nation: Washington, Adams, Jefferson, Yale University Press (2003), at pp. 152-153.

2 Ibid., at pp. 153 and 163.

3 While a divided U.S. Supreme Court, in the Korematsu case, upheld the constitutionality of the internments, later revelation of the absence of any basis in fact for the government’s allegations may have led to a different decision had they been known to the Court at the time.

4 Prof. Douglas W. Cassel, Jr., Fellows Breakfast Talk, American Bar Foundation, Chicago, Illinois, August 6, 2004 (emphases added).   Prof. Cassel was a consultant to a number of the lawyers for the prisoners whose cases were recently decided before the U.S. Supreme Court.  The authority claimed by the President summarized in the text has been challenged in amicus briefs filed with the U.S. Supreme Court by the International Committee of the Red Cross, various United Nations Human Rights agencies, the Inter-American Commission on Human rights, and “a long list of international law scholars and experts” ibid.

5 [“T]here are five votes on the current Supreme Court for the proposition that no American citizen arrested in the United States can be held as an enemy combatant even with due process.  If Americans are arrested in America, they either must be charged with a crime or released” Cassel Talk.

6 See, e.g., the news report in the San Francisco Chronicle, Monday, September 27, 2004, “U.S. citizen held nearly three years expected to be freed Tuesday, lawyer says,” which begins as follows: “A U.S. citizen captured in Afghanistan and held without charges since late 2001 as an enemy combatant is scheduled to be released Tuesday and flown to Saudi Arabia, where he grew up, his lawyer said.   Yaser Esam Hamdi, whose case led to a Supreme Court decision limiting the president’s powers to indefinitely hold wartime combatants, will not be charged with any crime under an agreement with federal officials made public Monday.  The agreement requires Hamdi to give up his American citizenship, renounce terrorism and not sue the U.S. government over his captivity. Justice Department officials declined to comment beyond the agreement“ (emphasis added).  It should be noted that while Mr. Hamdi was “captured” in Afghanistan, during most of his captivity he was imprisoned in the U.S., in naval brigs in Norfolk and Charleston.

7 Tocqueville, Democracy in America, Everyman Library., Alfred Knopf, New York, 1994, esp. Chapter XVI, Vol. I, “Causes Which Mitigate The Tyranny of the Majority in the United States.”

8 Sheppard, “The Hazardous Future of Democracy in America: Tocqueville & Lawyers in America,” a lecture prepared for St. John’s College, Santa Fe, New Mexico, scheduled for November 5, 2004, citing, inter alia., “American Principles & The Evolving Ethos of American Legal Practice,” 28 Loyola University Chicago Law Journal 237 (Winter 1996).

A Lawyer’s Life Can Be A Happy One

 

Published in the Hastings Weekly, February 2004.
University of California Law  School

 

When a felon’s not engaged in his employment
Or maturing his felonious little plans,

His capacity for innocent enjoyment

Is just as great as any honest man’s.

But take one consideration with another,

A lawyer’s lot is not a happy one.

–adapted from Gilbert & Sullivan.

So you want to be a lawyer?  Studies during the past 20 years have shown that lawyers are among the most depressed class of professionals in the United States.  Some have shown that they are the most depressed.  In urban areas, alcohol and drug abuse have been reported by State Bar Associations to be among the most common problems afflicting lawyers –especially trial lawyers.  The past often predicts the future.  It is therefore important for you to consider why you want to be a lawyer, and the kind of lawyer you are going to be –not technically, but humanly.

There are many reasons students decide to go to law school.  These include to make a good living –or even become “rich”– in an interesting profession; to develop one’s talents in a calling congenial to one’s personality; to pursue a law-related career ambition, such as politics or government; to follow a family tradition; and to help promote justice in a highly competitive society where injustice is not a rare thing.

I have heard lawyers say that they were making more money than they ever thought they would, but were also unhappier than they ever imagined they could be.  After nearly 40 years as a civil lawyer in both public and private practice, I have come to some firm conclusions about why so many lawyers are unhappy people.  I will share these conclusions with Hastings students in a talk and discussion at the Law School, sponsored by the Placement Office, on Wednesday, February 18.  One of my main conclusions is that many lawyers are unhappy precisely because the prevalent legal practice ethos has led many lawyers to lose sight of the real reasons they wanted to become lawyers in the first place.  They do this out of a perceived practical necessity. My own experience tells me, however, that no such necessity really exists, and that a lawyer’s life can be a happy one so long as his or her original motivating visions are not lost.  Practicing lawyers are likely to tell you that this is very difficult to do.  To the contrary, as my talk will explain, the real difficulties for lawyers arise when they accept this point of view.  For the longer term, and in the deepest sense, remaining true to one’s self is the easiest thing to do.

And when you do that, your lawyer’s life can be a happy one.

Harrison Sheppard (Hastings ’67), principal of Harrison Sheppard Law & Conflict Resolution and a frequently published essayist, is author of What’s Right with Lawyers/What’s Wrong with Lawyers. His column on Law & Justice appears regularly in San Francisco Attorney magazine, the quarterly journal of the Bar Association of San Francisco.  His website is voicesoflife.com.

(c) 2004, Harrison Sheppard

Reflections on the Purpose of Law

San Francisco Attorney magazine, Winter 2003

 

I have been practicing law for thirty-five years, and I remain proud to be a lawyer in the United States.

As I have written elsewhere[1], the American legal profession and its most accomplished members have been among the most civilizing and progressive forces in history. American lawyers, going back at least to Thomas Jefferson, have helped to provide others with a better life through their vigorous defense of individual human rights, their political acumen—more than two-thirds of our presidents during the first 150 years of our nation’s history were lawyers—and by the contributions lawyers have made to the world’s economic and social development.

It is great to be a member of a profession whose very existence is designed to elevate human conflict from the brutish to the civilized, as Aeschylus’s mythic trilogy, The Oresteja, depicts in its transformation of blood vendetta to the reasoned discipline and restraint of trial by jury. The exercise of reason in human affairs is the most reliable means for bringing of stability and justice out of the chaos of human competition and conflict. “The life of the law,” as John Locke wrote, “is reason.”

Understanding the essential purpose of the legal profession is gratifying. Even greater gratification may come from helping clients resolve their problems, not only through the occasional trial of a case but, more often, through humanistic counseling and skilled negotiation. I spent the first two-thirds of my legal career in the federal government, with the U.S. Department of Justice and the Federal Trade Commission. There are, of course, satisfactions a lawyer enjoys from the practice of public law. These are derived mainly from being a position to help implement beneficial public policy. The satisfactions of advancing a good government policy, however, are rather abstract; one rarely sees how government work actually affects individuals. They are, therefore, generally less than the satisfactions private practitioners can enjoy from seeing their work make concrete, positive differences in the lives of the men, women, and—at least in effect— children that come to them for help, as well as from contributions they make to the well-being of their business clients’ enterprises. These greater satisfactions are compounded for me as a solo practitioner and independent businessman with the luxury of choosing my clients and regulating my own calendar.

When you run your own business, there are also things that come with the territory that are not-so-great. There is constant worry about the bottom line, from which you are, of course, exempt if you are a salaried employee. There can be nerve-wracking uncertainties about the ultimate outcome of a case in which you have invested much thought and labor, because of difficult facts or conflicting rules of law, or the discretion vested in judges. There is the occasional deadbeat client, sometimes one for whom you have worked above and beyond the call of duty. And, of course, the lost case or the case that, for one reason or another, prudence requires you to settle on terms that seem to you unfair.

These are perils of practicing law, but they are not nearly as disappointing or frustrating as the commonly disappointing character of prevalent American legal practice itself, and the concomitant erosion of civility in relationships between opposing counsel.

The general character of American legal practice has changed much for the worse during the past thirty-five years. I believe this has been chiefly a result of three developments: (1) the great growth in large firm legal practice; (2) the U.S. Supreme Court’s decision in Bates v. State Bar of Arizona (removing restrictions on lawyer advertising); and (3) the degraded image of the legal profession due to the misbehavior of so many lawyers (including the U.S Attorney General in the Watergate scandal). These developments have caused the dominant ethos of American legal practice to become more that of business enterprise than of a learned, humanistic profession. A dozen or so books by distinguished attorneys and scholars published in the 1990s document and lament this trend.2 The pressing necessities of “the billable hour,” the loss of the mentoring system in law firms, and a common collective loss of memory of the true roots of the American legal profession in history—the common law and the Unites States Constitution—have led to a common ethos in legal practice encouraging the “gun-for¬hire,” “Ambulating,” and “take-no-prisoners” mentalities that have widely corrupted the professional behavior of lawyers. Experiencing this corruption can sometimes make the practice of law an unpleasant experience.

Lawyers who do not take their constitutional oaths as seriously as they should—that is, who do nor make the pursuit of justice a paramount concern in the exercise of their calling3—are also likely to ignore the spirit of reason and civility that defines the essential character of the law. Having to deal with such lawyers is the worst thing about being one. The uncivil lawyer is well-armed with self-serving, self-interested excuses for his or her behavior:

“I’m only doing what my client wants me to do,” or “I’d prefer to be civil, but I have to deal in kind with all those other uncivil lawyers to protect my clients’ interests.”

These excuses—half-truths at best—generally mask the abrogation of a lawyer’s professional responsibilities as counselor and peacemaker, and often amount, in my opinion, to chosen Incompetence. As Elihu Root, the great New York civil lawyer and Secretary of State under President Theodore Roosevelt, said, “About half the practice of any decent lawyer consists of telling would-be clients that they’re damned fools, and should stop.” In contrast to the ubiquity of these public excuses and rationalizations for uncivil behavior in legal practice, I have never met any lawyer—including self-professed “Rambos”— who does not admit, at least in private, that if he or she and opposing counsel had dealt with each other with discreet candor and civility, and counseled their clients skillfully and with reason, many of their most difficult cases could have been settled in a small fraction of the time it took to resolve them through the costly, stressful, and often unnecessary procedures of formal discovery and litigation.

The contradiction between this practically self-evident and almost universally understood truth and the typical behavior of practicing lawyers today is the least-great thing about being a lawyer. As an incorrigible optimist, however, I see some possible antidote to this situation in the growth of mediation and in the recognition of its economies by corporate America. Now, if our law schools could also evolve to address the critical need to educate students as better negotiators and problem-solvers and de-emphasize the lawyer’s role as warrior, I could more confidently predict that the next generation of lawyers would be less likely to complain about what is not-so-great about being a member of our profession. I would add, more than by the way, that, given America’s present place in the world, a return to great civility in the practice of our profession could make an important contribution to world peace.[4]

NOTES
1. “Cashing in On Conflict,” The Washington Post, June 5, 1996; “The Triumphs of Law and Lawyers in the United States,” The Hellenic Journal, June 16,1995.
2. See e.g., the citations in Sheppard, “American Principles & The Evolving Ethos of American Legal Practice,” 28 Loyola University Chicago Law Journal 237, 246, note 19 and passim, Winter 1996.
3.See, e.g., Sheppard, “Legal Education and the Future of the Republic,” a talk to the Yale Law Club of San Francisco, published in Vital Speeches of the Day, April 5, 1998.
4. See, e.g., Sheppard, “A Lawyer’s Christmas Message,” San Francisco Chronicle, December 25, 1997.