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 metamorphosis, with the one of primary ends being the ability to “think like a lawyer”. In the midst of this transformation, it is critical that first year law students, subsumed by the process, do not 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 are just blatantly wrong and no further explanation should be necessary. What many consider to be aberrations of justice – such as Plessy and Korematsu – are subtly defended by the law student eager to demonstrate his mastery of the law and to show he can divorce himself from the passion that moves political currents. In so doing, he argues that segregating prison populations on the basis of race alone is sound violence-prevention policy, or that Japanese internment camps were not “that bad” because, from a cultural perspective, the Japanese were honored to sacrifice themselves for their mother country. In pointing out such commentary, I do not mean to suggest that there is no legitimate space for disagreement on the overwhelming majority of issues, especially those of a political nature. However, the wave of public opinion has firmly denounced this country’s ugly history of discrimination on the basis of race and ethnicity, and there is absolutely no room for even playing devil’s advocate. 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 attempting to rationalize the irrational is 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 this country.

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, at the heart of the criminal justice system – and I would argue the legal system as whole – is the belief that it works; that is, that it applies its hand equally. Furthermore, one is often told that, in part, one’s role as alawyer is to reaffirm this belief in the client. After all, if this general principle was not the case, what good is the lawyer anyway? Why would people not just resort to self-help measures? As a law student, learning to reconcile these two often competing conceptions of the law – one as an historical tool of oppression and the other as a key to liberty – is an ever-evolving process. Notwithstanding the inconsistencies, I choose to lean towards the latter, more positive conception. Otherwise, allowing thoughts of the negative implications to dominate would, in the short- and long-term, make me a worse lawyer, not a better one.

Law infused with morality

Like Holmes, I believe that law is distinct from morality; part of my inquiry is to assess whether this should be the case. There are many conceptions of what morality is; I argue that we all have our personal sense largely manifested in our politics and beliefs. This might be what one would refer to as their “gut”. Then, there are guiding principles that have led America to where she is today, and to where she should aspire to go in her never-ending journey. These are not one in the same; yet, many, including myself, fall prey to conflating the two. It is the aggregation of individual senses of morality that change the tide of public opinion and shape the societal sense. For example, denying women and Blacks the right to vote, compulsory segregation and slavery were all legally and morally accepted – individually and societally – even up until half a century ago. Today, I firmly believe that one’s sense of individual morality is inherently flawed if it includes a belief that discrimination on the basis of gender, race or ethnicity – immutable characteristics – is acceptable.

The extent of my argument does not extend much beyond this because, to some extent, where personal politics ends and morality begins is hard to distinguish. Regardless of terminological distinctions, a primary aim of legal education should be to enhance and develop law student’s moral. 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 about what is morally right or wrong.