Moral and Philosophical Bearings for a Law Student's Future Direction

-- By JustineHong - 11 Mar 2022

Introduction

Oliver Wendell Holmes underscores that the law does not reflect morality, but instead studies ways to predict court decisions. Philosophers like Arendt and Unger, therefore, provide moral and philosophical context which may complement a law student's studies and assist the development of a theory of social action. For instance, Arendt’s account of stateless people provides a philosophical context for my interest in international human rights and refugee law. Moreover, Unger presents a historical progression among liberal societies in which morality becomes estranged from the rule of law, resulting in the widespread sense that societal inequality is arbitrary. His work thus calls on lawyers to address unjust societal inequalities by expanding access to intellectual capital. Ultimately, the works of both Arendt and Unger urge lawyers to look beyond legal doctrine and toward the social interests and public policy which shape law in contemporary society.

Arendt: State Recognition of Fundamental Rights

Origins of Totalitarianism argues that human rights, far from being “natural,” require state recognition to exist. In particular, the “calamity of the rightless . . . is not that they are not equal before the law, but that no law exists for them . . . We become aware of a right to have rights” (Arendt 295-7). In other words, unless a person belongs in a community like a state, he or she cannot not have “fundamental” rights like life, liberty, or equal protection before the law.

In terms of its relevance to a lawyer’s theory of social action, Origins of Totalitarianism forces students to think beyond black-letter doctrine and to ensure that people outside state recognition have legal representation. Thus, a theory of social action requires extending protection beyond the law itself. In Lawrence Joseph’s Lawyerland, Robinson represents criminals, who are considered to be most deprived of rights in society. But Arendt indicates that even criminals, unlike stateless people, are still recognized by the state. “[Stateless people’s] freedom of movement, if they have it at all, gives them no right to residence which even the jailed criminal enjoys” (Arendt 296). Therefore, stateless people require even more fundamental protection than criminals.

Her account reminds me of the former ‘comfort women’ of WWII. I first learned about the women when, as a high schooler at an international school in South Korea, I visited the House of Sharing, a museum and refuge for the former ‘comfort women.’ Inspired by the exhibits, I volunteered as an English tour guide and oral translator for the women’s testimonies. Their experience attests to the horrors of war and the consequences of statelessness. Almost a century later, litigation for recognition and compensation for this human rights violation is still ongoing. Therefore, I hope to develop my interest in international human rights law to represent stateless people or other similarly vulnerable communities and prevent such atrocities from recurring.

Unger: Modern Estrangement of Morality from Law

Like Arendt, Unger emphasizes the estrangement of morality from law and from the modern social order. He argues in Law in Modern Society that the historical trend in which the rule of law becomes devoid of moral justification results in a widespread modern perception that societal inequality is arbitrary. Additionally, in modern liberal societies, people tend to view social consensus as a product of the interests of dominant groups (Unger 169). Therefore, Unger emphasizes that in order to defeat inequality, society must foster greater confidence among people as “expressions of a shared human nature” (240). One way to achieve this greater confidence is to restore a kind of universal consensus about social life, where social practices represent an “immanent order” rather than arbitrary choices (240).

The Knowledge Economy as a Solution

Another solution for such unjust inequalities, presented in Unger’s more recent work The Knowledge Economy, is the expansion of the knowledge economy. Unger argues that the knowledge economy is the most innovative way to organize economic activity, but it remains trapped in small segments of society. On the one hand, the knowledge economy represents a freedom from hierarchy because successful knowledge production requires collaboration and open exchange of ideas. It also involves a freedom from machine-like routine embodied by industrial mass production, instead operating on creativity and spontaneity. Expanding the knowledge economy would require a reorganization of capital and other means of production, such as alternative forms to the standard corporation, more collaborative relations among workers and superiors, and educational reform.

Such concrete measures articulated in The Knowledge Economy provide guideposts for a lawyer’s theory of social action. Having the propositions regarding modern injustice and arbitrariness demonstrated in Law in Modern Society as its philosophic basis, the lawyer’s theory could implement governmental advocacy, workers’ rights, labor law, pro bono educational campaigns, and expansion of access to legal counsel. These measures would help expand the knowledge economy and address the problems outlined in Law in Modern Society. As a first-generation law student, second-generation college graduate, and a first-generation immigrant, I have benefited significantly from the knowledge economy and look forward to giving back to communities from which I have benefited. Although Unger’s solutions are much easier said than done, a coherent framework of the legal issues arising from inequalities and isolation is indispensable for assisting underserved communities.

Conclusion

Arendt and Unger present alternative philosophic bases for a lawyer’s theory of social action. Arendt’s argument that human rights are meaningless without the recognition of a state underscores the plight of stateless people who lack the basic legal status even accorded to criminals. Unger’s argument, on the other hand, highlights the estrangement of morality from the rule of law and the consequent arbitrariness pervading modern society. His framework draws attention to the need for a universal consensus or for a solution to unjust inequalities, such as the knowledge economy. Although both theorists are primarily concerned with philosophy rather than social science, their theories still provide a critical foundation upon which to construct a theory of social action.

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