Law and Morality: Lady Justice’s Doubled-Edged Sword

-- By JenniferGreen - 26 Feb 2010

Logic Games

“The training of lawyers is a training in logic.” – Oliver Wendell Homes

The process of becoming educated in the law is a true metamorphosis. Learning to “think like a lawyer” is supposed to sharpen one’s analytical skills and ability to logically reason. In the midst of this transformation, it is critical that first year law students, subsumed by this process, don’t lose their gut.

“Being a great lawyer is a balance of going with your gut and being able to do the academic stuff.” – Professor, Columbia Law School

This wisdom was shared with me by a professor to whom I expressed disdain about the robotic deference to flawed legal reasoning that I have, on occasion, observed in first year courses. Constitutional law is replete with decisions that are, in some cases, based on sound legal precedent, assessment of legislative intent and adherence to constitutional principles. Yet, some of the decisions are just blatantly wrong and no further explanation should be necessary. The notion that a modern manifestation of Plessy v. Ferguson’s separate but equal doctrine, or the denial of suffrage rights to women, is antithetical to my own principles and in opposition to contemporary public opinion seems almost too intuitive to justify. Incredulously, these are precisely the types of arguments that have been advanced by students versed in the reasoning of the court but, unfortunately, not in their own intuition. To be fair, law professors seem to take great pleasure in backing students into a corner and, in so doing, challenging them on what the law was or is. Holmes recounts his interaction with an English judge, who admonishes, “You are discussing what the law ought be…” A pedagogical approach to legal education that fails to give equal consideration to what the law is and what it should be ill-equips new generations of lawyers with the tools to fully appreciate and improve the law in a changing social landscape.

The Double Consciousness of a Law Student

While the sentiment, “That’s just wrong” is not a sound legal argument, sometimes, attempting to rationalize the most contentious of constitutional decisions can be an exercise in futility. Instead of following one’s own moral compass, law students are forced to reason through the lens of men who, quite frankly, lack credibility due to their own double lives. Thomas Jefferson, the author of the Declaration of Independence, best exemplifies this phenomenon. While writing that “all men are created equal”, Jefferson owned slaves and fathered at least five children with his slave mistress, Sally Hemmings. I personally find this hypocrisy to be offensive; yet, as a student and future practitioner of the law, I must search within myself to find legitimacy in a document that, though inherently flawed, forms the basis of the United States legal system.

Even further, one need not look far into the past to get the sense that Lady Justice’s scale sometimes malfunctions. Presently, there are significant disparities in the application of the death penalty based on the race of the defendant and the victim. This plank in the eye of the system undermines the notion that justice is blind and all citizens are equally protected under the law. Yet, part of one’s role as a lawyer is to quiet the nerves of clients by assuring them that the system typically works. As a law student, learning to reconcile what I view as two conceptions of the law – one as an historical tool of oppression and the other as a key to liberty – is an ever-evolving process.

Law infused with morality

Like Holmes, I believe that law is distinct from morality, the former being derived from tradition. While, for Holmes, this should guard against conflating the two, I believe that new lawyers should not hesitate to allow their practice to be guided by their moral compass. By this, I do not mean that a junior attorney anywhere will have the autonomy and influence to steer their organization off the course of its mission. On the other hand, I firmly believe that the mark of a good lawyer is the ability to submit to one’s inner voice. This premise was demonstrated to me during my interview process for first year summer positions at public interest organizations and law firms alike. To my surprise, at both, I was asked a variation of the same question: “How would you feel about representing people and causes with which you do not agree?” My first reaction was that of bewilderment; after all, I am only a first year law student who has a number of hurdles to clear before I will be representing anyone. Upon further consideration, I recognized the question as an admission on the parts of the interviewers that, as lawyers, one of our most valuable assets to our employers and our clients is our ability to be discerning about murky and sensitive topics, some of which run counter to our own value system. The obvious answer is that lawyers should never do anything unethical because, at the very least, it will get you disbarred. In the end, though, how one responds to this question is a very individual matter.

Certainly, one could argue that there is a guiding sense of morality in 21st century America. For example, segregation is wrong and any argument to the contrary, even in the setting of a law school classroom, is suspicious. The reality is that our sense of morality, for better or worse, is firmly shaped at this juncture in our lives. Still, a primary aim of legal education should be to enhance and develop this sense and encourage students to submit to it. In our quest to demonstrate that we can “think like a lawyer”, we should never become so robotic in our acquisition of legal knowledge that we ignore our gut instincts.

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