Politics
Lawyers have become mere technicians—no wonder our legal system has gone haywire.
Words can be hard to define, even by those who use them regularly. Still, one should be able to define one’s own words, those at the heart of his vocation and profession. Even after I had spent three years in law school and several more as a practicing attorney, if you had asked me, “What is justice?” or even, “What is a law?” I would not have been able to give a solid answer.
Indeed, I am confident that not a single member of my graduating law school class could coherently answer these baseline questions about the nature, purpose, and sources of law. How can a nation produce lawyers who cannot explain what their profession is?
This is not an exaggerated statement by a disgruntled conservative about the state of higher education; the complaints are concrete and quite real. The Institutes of Justinian begin with the simple statement that “justice is the set and constant purpose which gives to every man his due” and that jurisprudence, the theory of law, is “the knowledge of things divine and human, the science of the just and the unjust.” Thomas Aquinas famously defines law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”
Yes, there are nuanced differences between the classical tradition and more modern legal commentators like Blackstone and Montesquieu; there are divergences between the modern teachings of utilitarians and positivists on the nature of law and justice. But lawyers should have at least a basic grasp of such things. One need not adopt the title “classical lawyer” or “common good constitutionalist” to acknowledge that those educated as lawyers should have at least a passing knowledge of the foundations of law.
When one surveys the great lawyers of early American history, it is clear that the problem is indeed a modern one. The great American legal minds—from John Adams to Abraham Lincoln – had a deep grasp of the classical Western tradition. The same is true of lawyers throughout the West. It is also worth noting that these lawyers did not attend anything like the modern law school. John Adams had a deep knowledge of Latin and Greek, reading the classics in their original languages before going on to study at Harvard. James Madison (who, although not a practicing lawyer, did write much of the U.S. Constitution) focused his studies at the College of New Jersey (later called Princeton) on classical and biblical languages, as well as theology and political philosophy. Lincoln was largely self-taught, drawing his knowledge and legal prowess from the Bible, great literature, and even Euclidean geometry.
These famous, successful, classically informed lawyers did not receive what Americans would consider a modern legal education. They did not go through a three-year program learning the basics of each area of law, followed by specialized electives and for-credit internships. They were schooled in the classical Western tradition and then worked as apprentices for established lawyers to hone their craft.
The arrangement seems to have worked rather well. What changed so drastically between then and now?
There are likely several currents of modern thought that lead to the state of legal education today. The modern educational theory heavily influenced by men like John Dewey introduced a general disdain for abstract learning and memorization, for an emphasis on classical languages and high culture, preferring learning that is “democratized and made relevant and practical.” This educational theory was focused on lower education for the masses of school children, but it has trickled its way up. Out with Justianian, Aquinas, Blackstone, and all their abstract legal theory. We need to do law, not learn all these outdated aristocratic ideas. Further, it can be argued that it is safer in a relativistic society to form lawyers to be good technocrats who can speak the language of the law and navigate the courts. No need to get into questions of goodness and truth.
The results, however, are not pretty. This appears to be a problem beyond law, and to have something to do with the very nature of technocratic credentialism. Observe some of the frightening COVID-era health recommendations—promoting months of isolation, constant mask-wearing, and immediate use of a new and experimental vaccine technology. Are the objective duties to promote health and to do no harm really the guiding principles at play? Notice houses built with bedrooms with west-facing windows (missing the morning sun) and living rooms with east-facing windows (missing the evening sun). Are architects really being educated in the basic theories that explain and justify their profession?
It seems the whole professional credentialing system is fundamentally lacking, equipping people with certain practical skills but not with the foundational knowledge that makes sense of it all.
Where do we go from here? What do you do about a system of legal education that produces lawyers who cannot answer the question, “What is a law?” At least in the short-term, conversations about overhauling law school curricula are aspirational but unrealistic. The legal academy doesn’t even have the appetite to eliminate woke cancel culture from its lecture halls, where radical leftist ideology can be safely preached but anything remotely right-of-center can be shouted down and banned from campus. In such an environment, one sees little hope that a renaissance of classical legal education is on the horizon.
There are two incremental steps, however, that can be taken immediately to begin the project of restoring classical foundations in the legal profession. First, there is already a well-established network of right-of-center lawyers throughout the country. The Federalist Society stands as one of the most practically successful conservative groups of the last half century: in the 1980s, a group of lawyers and academics realized that a long-term strategy was necessary to prevent the monopoly of progressivism in the legal academy and the judiciary. Playing the long game, the group began to form student chapters at law schools as well as networks of lawyers throughout the country. Four decades later, the Federalist Society can claim thousands of lawyers, hundreds of federal judges, and several members of the Supreme Court.
These Federalist Society chapters help form the next generation of lawyers in conservative legal theory and practice. A concerted effort should be made to include formation in classical legal theory within Federalist Society speaking circles. While the group still holds many libertarian and positivist views, young conservative lawyers and law students in particular hunger for more solid foundations. Post-liberal legal thinkers should work with, rather than separate from, these groups in an attempt to restore the classical and natural law tradition to the legal profession. If a law student goes through three years of law school classes without learning what a law is, perhaps one good Federalist Society lecture can change that for dozens of future lawyers.
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The second improvement is to make the grassroot efforts to refocus lawyers’ intellectual sights. I spoke recently to Professor Adrian Vermeule, who said that his best hope for the future was young law students and lawyers taking the study of classical law upon themselves. He gets great joy every time he hears that his work has inspired a group of young legal minds to start an extracurricular study group that reads the Institutes of Justinian or the works of William Blackstone together. The power of such local efforts should not be undervalued. Young lawyers and students should band together, realize what is lacking in their legal education, and fill in the gaps themselves.
It is true that understanding Justinian’s views of justice or the Thomistic theory of law and politics will not solve the legal crises of the day. Yet it is inexcusable for lawyers not to have at least a basic foundation in the sources and traditions that form the law they practice. We do not need to become scholars of legal philosophy, but we should know what law is, whence it comes, and what it aims to do.
Lawyers are officers of the law, privileged members of society who make, enforce, practice, and judge the law. Surely we have a duty to understand what it is we are doing. Physicians cannot heal if they do not understand what health, medicine, and the human person are. Lawyers cannot practice law for the common good if they do not know what law and the common good are. If professionals do not understand the foundations of their own professions, there is little hope that they will become more than unhelpful technocrats.
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