A Lesson in Morality

-- By JenniferGreen - 26 Feb 2010

An Antiquated System

The intellectual transformation that marks the beginning of one’s journey to becoming a life-long student of the law is, at once, disorienting and exhilarating. In the process, it is implied that one must cast aside their way of thinking about legal issues as a lay person would, undoubtedly shaped by instinctive feelings of what is right and wrong. Instead, fidelity to the law is the golden standard, unencumbered by the emotions, passions, and biases that color the lens through which one views the world. Instead, it is the law “all the way down”. In truth, this view of the law protects the citizenry from the whims and prejudices of an unaccountable and, some would say, out of touch body that wields a significant amount of power. However, when terms such as “empathy” are decried by some as a negative attribute of judicial philosophy, it is worth inquiring to what extent we are advancing a pure and adulterated interpretation at the expense of one with a more humanistic touch?

This country, for all that she has become and is becoming, has a checkered history of using the law as a tool of oppression. While it is noteworthy that this history has not been omitted from legal education, a pedagogical approach that reduces these decisions to mere considerations of stare decisis undermines the development of what it truly means to “think like a lawyer”. And that is not only the ability to conduct sound legal analysis, but also the willingness to be a vigorous advocate for certain principles simply because it is the right thing to do.

Normative standards of right and wrong are, admittedly, fluid and subject to wide disagreement. In conceding this, I still maintain that there are certain aberrations of justice, based purely on societal standards of morality, that never should have been or never should be defended. Cases such as Dred Scott, Plessy v. Ferguson, and Korematsu v. United States, are prime examples of such aberrations; still, even after this nation has evolved to a point where such a decisions are unequivocally repudiated, they still find defenders and justifiers among students and practitioners of the law. Even in my recognition that reasonable people can legitimately disagree, I find this problematic. In the context of legal education, the risk is that law schools create an environment whereby one’s conception of themselves as a legal scholar is distinctive from their sense of human intuition and morality. Unfortunately, the consequences of such dissociation can be grave, and have negative social implications.

Split Selves

The process of become educated in the law sometimes has the ill-effect of creating a sense of split selves. This is not only because of a general reluctance to engage in conversations about the social implications and policy considerations of court decisions, but also because the lenses through which students must learn to legally reason are often colored by moral shortcomings. Whether one believes that the law is inherently flawed, or that the legal behemoths who laid the foundation for how the law is interpreted knowingly distorted it, it simply cannot be ignored that there is a history of contradictions and hypocrisy. If we, as a society, are truly interested in allowing all citizens to have access to the law as a medium through which to advance social good and change, we must begin with this recognition. However, it does not end with mere acknowledgment; lawyers, as emissaries o this change, must be willing to advance the causes and “take up the good fight”. There is a gaping hole in legal education in that there is little done to reconcile the flaws and distortions of the past with the notion that the law can be used as a positive force for change in the present and future. Given this, it is no surprise that the path of least resistance for young lawyers is to enter an area of practice that stands to undermine this potential for positive change.

The struggles we presently face are, admittedly, not like those of the past; however, there gravity cannot be discounted. They demand a new generation of lawyers who have not divorced themselves from a sense of social responsibility as agents for advancing what is right. With its historical flaws and past shortcomings, it is only when confronted with lawyers who do not abdicate their responsibility – or moral duty – to lend their expertise that the legal system will evolve into something that more closely aligns with our present values and ideals.

Charting our Path

Given that lawyers play a significant role in regulating society and the global economy, it is imperative that law schools adequately equip future practitioners not only with the skills necessary to “think like a lawyer”, but also with the moral sense that recognizes the enormous responsibility the profession bears. We need only look to a recent event, the collapse of the financial markets and the ensuing devastation, as an example of lawyers placing bottom line margins ahead of a moral duty to advise clients to conduct their business in a prudent and honest manner. This, of course, is not to suggest that any institution must bear the blame for tragedy caused by past matriculants. However, law schools – which are in the business of training lawyers – are the most appropriate forums to marry the acquisition of legal knowledge with the development of one’s moral self.

Current law students are in a unique position to be at the forefront of a movement that demands that law schools play a role in changing the paradigm. It begins in the classroom, but it certainly does not end there; and a semester-long MPRE course is not sufficient, either. As law students, not only do we need to make demands of legal institutions and the profession, but we can also begin to generate the change ourselves.