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.

"Incredulous" means "unbelieving" or "skeptical," not "unbelievable." So your adverb is misused. You write "The notion that X is antithetical to my own principles and in opposition to contemporary public opinion seems almost too intuitive to justify." This turns out to mean that people have said things in class with which you disagree, and which you think are unpopular opinions.

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.

The Declaration of Independence does not form the basis of the US legal system. It's a political pamphlet, drawn in the form of a grand jury indictment of the King, intended to justify publicly a political vote in the Continental Congress. It had then and has now no legal effect of any kind. Thomas Jefferson's hypocrisy can hardly be limited to racial matters; Mr Jefferson was a devious political practitioner for more than thirty years. There are few matters on which he did not either write one thing and do another, or write two inconsistent things in the course of a long and politically sinuous public life. Admiring Mr Jefferson's morality has never been possible for me; not admiring his mind, however, seems to me equally impossible. So?

Even further, one need not look far into the past to get the sense that Lady Justice’s scale sometimes malfunctions.

Has anyone not a child ever failed to notice that the world does not achieve perfect justice?

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.

What? I don't remember the last time I was called upon to say such an imbecile thing to a client.

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.

Perhaps the process will be easier if you give up both views and adopt a more realistic approach: "law" is governmentally-applied social control, weaker than many other forms of social control, but like them exercised mostly in the direction given by power, and to some extent in other, including diametrically opposed, directions. At any given moment, law either amplifies or interferes with other forms of social control operating in a given context. In general, law is what it does rather than what it says. On this basis, you can avoid the ever-evolving conflict between two unrealistic and unhelpful conceptions.

Law infused with morality

Like Holmes, I believe that law is distinct from morality, the former being derived from tradition.

Law is neither more nor less derived from tradition than other means of social control, religion, for example.

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.

That's not what Holmes said.

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,

Representing people you disagree with, or whose values are repugnant to you, is not unethical. You didn't show that conclusion, and there's no reason to believe it's correct. "Doing something unethical" requires more than the unconflicted representation of a "bad" client.

I don't see the basis for treating that interview question as "an admission." It's an expression of distrust: the interviewers are all picking up from you the signal that you may not be able to do your job as a representative of whomever your are working for under their direction. They're asking if you can follow orders without questioning, because they're worried that you can't. Your surprise that they would ask this of a junior associate reflects your misunderstanding of their side of the conversation: a "difficult" or insubordinate novice can cause a team to lose time, momentum, and morale. It's easier to check for the problem and steer clear at the first sign. Some interviewers ask this question, or a variant, all the time. I never ask it, because I don't need to; there are simpler and more direct ways of evoking the capacity to be troublesome. But if you're meeting with the inquiry all or most of the time when you interview, it's an indication that you're ringing alarm bells. You may or may not want to be doing this, but if it's unintentional, you might want to analyze the matter more thoroughly.

at the very least, it will get you disbarred.

No. At the very least, nothing will happen to you at all. Almost all the unethical actions committed by lawyers have no consequences whatever. The proportion that result in disbarment is tiny.

In the end, though, how one responds to this question is a very individual matter.

Is that a conclusion?

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.

Do you suspect those who argue for the importance of preserving women's colleges, small high schools for GLBT students subjected to harassment or abuse, or Afro-centric schools for at-risk African-American boys? I can imagine deciding that these policy goals are wrong, even that they are wrong solely on the basis of the principle that "segregation is wrong," but declaring all argument on these points "suspicious" sounds bigoted to me.

The reality is that our sense of morality, for better or worse, is firmly shaped at this juncture in our lives.

Maybe. How do you know?

Still, a primary aim of legal education should be to enhance and develop this sense and encourage students to submit to it.

What is the significance of the word "submit"?

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.

Are "gut instincts" the same as "moral sense"? If they are different, what's the nature of the connection between this and the preceding sentences. If they are the same, what does submission to a gut instinct mean? This conclusion is particularly troublesome given the preceding argument.