Law in Contemporary Society
Law School and Contemporary Society

By KristineVanHamersveld? - 26 Feb 2009, edited by Diana Sidakis 20 April 2009

If it is true that law school doesn’t teach its students how to be lawyers, what does it teach us about the law? As a law student of almost seven months, I can say without hesitation that I have learned something by attending law school, even if it requires a thousand words to speculate on what that something might consist of. I’m not sure however, that I have learned how to be a lawyer, or even, what a lawyer really is. Although I have been immersed in more “law” than I can absorb, and evaluated in a way that is not conducive to absorbing it, I believe I am learning how to think about the law in a way that law professors (and presumably practicing attorneys) find valuable. If judges, law firms, and law schools did not find this kind of thinking valuable, they would recruit clerks, associates, and scholars from other fields. Instead, they chose law students, who have specialized knowledge and skills that can, presumably, only be found in law school.

This essay will focus on two facets of the specialized body of knowledge that law students glean from attending law school. First, law students must understand the complicated relationship between law and morality. This relationship becomes apparent almost immediately to law students by reading judicial opinions under the case method. Secondly, law students learn on somewhat of a meta-level about the value of their own knowledge, as “secret” and if not how to exploit that secret, merely that they must exploit the secret just as Neff’s salesman exploits his monopoly over certain goods.

Law and Morality

When justices of the Supreme Court craft the opinions that shape our law, they know they must base their decisions, at least in part, on past decisions. This doctrine of stare decisis creates a body of common law that is, as a whole, internally consistent while flexible to changing circumstances. As the Justices claim, they do not base their decisions on a personal compass of moral “right and wrong.” To do so would render law subjective and intellectually impotent. Yet, in a way, the official judicial reliance on stare decisis obscures how at some infinite beginning point, the personal opinion of the justice determined the outcome of the case. For example, the Constitution is simply a collection of words if judges don’t give it meaning through application. This meaning is derived from their own sensibilities—whether they cloak that meaning in the doctrine of stare decisis, original intention, or any other method of interpretation.

Law is codified morality and social values. Felix Cohen describes a type of judicial and legal decision making as “transcendental nonsense.” Instead of addressing economic, sociological, political, or ethical questions in answering legal questions, Cohen sees lawyers and judges as players in an abstract and metaphysical game of their own construction. This method of legal analysis creates law that ignores practical questions of value or fact, is circular, and impenetrable to attack by non-lawyers. Cohen proposes an alternate method for legal reasoning and understanding, focusing on law as a social process. Cohen argues that this functional approach to the law creates space for ethical criticism.

As law students, we have been taught to keep law and morality separate. Yet we need them both for an equitable legal system. Our legal system aspires to be one in which every persons know the rules and the consequences of breaking them. However, this system would not function if the “rules” are based on the judge’s own moral policies. Stable and predictable legal outcomes, based on precedent, are necessary to keep the system of law we know today functional. Yet, judges, constrained by legal circular argument and fixed categories like “corporation” or “person”, get cases morally wrong all the time. As law students, we must learn to parse the difference between excluding morality from law and cloaking legal argument in circular reasoning that obscures the lawyer’s or judge’s personal motivations. Morality need not be the arbitrary product of the individual’s whims. Rather, morality can be used in legal argument as a practical consideration.

Knowledge of the Law as a Lucrative Monopoly

Second, we have been taught that law is a profession, and that as lawyers, we are valuable because we have training in a specific and useful form of knowledge. Yet, lawyers create the market for their product. The law is so convoluted that someone who has not been trained to think like a lawyer cannot effectively advocate for herself. This creates a market in which lawyers can sell their interpretative services to clients, in an accepted framework that no one questions as a scam.

Law school, in preparing us to enter a market to sell that skill, perpetuates the idea that “thinking like a lawyer” has a value above how we thought before entering law school. This creates a self-generating loop: what we think of as The Law is nothing more than the codified thoughts of lawyers, who have been trained in law school to think like lawyers. Thus, the pedagogy of law school creates a closed circle of thought, to which largely only former law students can contribute to or understand, but that is necessary to the life of every person on the planet. Thinking like lawyers allows us access to this market that we invoke when we sell our services to people who need them. Are these two ideas, law and morality on one hand, and a monopoly over knowledge on the other hand truly related? Perhaps, but perhaps not. Maybe law school first teaches us what law is (a tangled mix of transcendental nonsense and moral intuition) and then how to make a living from it (through work in the legal market). This analysis connects the ideas presented in my paper in a two-step road map to a successful legal career in maintaining the status quo. I’ll never know if that was Columbia’s and/or my professors’ intention, or if it is just an arbitrary observation made by a life-long student programmed to make connections between any two things. In any event, I hope the thought itself, and the analysis here have some intellectual value in better understanding what we have been taught as law students, why, and what we can do with it.

  • I think this edit was too conservative, interestingly, given that Kristine herself undertook more complete and I think more successful measures in her own revision of her first draft. I think you were effective in addressing, at least on the surface, the problems in argument contained in the draft from which you started. And while you were very respectful of the existing language, your interventions--though occasional--we well-judged. But it seems to me that your revision vindicates the concern that too much was attempted in the original draft. The word "mystery" used by Holmes at the opening of The Path of the Law also refers to the guild organization of social crafts, and while it is possible that you could have unified the two parts of the original draft, you would have had to change the shape of the piece more fundamentally. That, no doubt, felt as far from editing as dropping half the subject did to you, and so you made the best of the limitations. The effort and commitment are substantial, and the failure to overcome the draft's most serious structural limitations is honorable: both editor and author learn in different ways that a more fundamental change in approach is necessary.


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r3 - 08 Jan 2010 - 22:31:57 - IanSullivan
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