Evan Whitton writes in his newly published book Our Corrupt Legal System, about what he calls the moral failure of law schools. With his permission, the chapter is publicized here.
Chapter 18. The moral failure of law schools
Academics were awkwardly placed when they became part of the cartel. Universities are supposed to find and teach the truth; Justice Russell Fox says the search for truth gives a legal system its moral face; English law had not sought the truth since about 500 AD. Blackstone cunningly dodged every issue of truth, fairness, justice, morality, and reality by asserting that a deity invented the system Another implausible and partial solution was to say morality does not matter. Those who took that position include Harvard’s Christopher Columbus Langdell and Oliver Wendell Holmes Jnr in the 19th century, and Oxford’s H.L.A. Hart in the 20th.
Christopher Columbus Langdell (1826-1906), dean of the Harvard law school 1875-95, wore a long beard. A psychiatrist might ask: ‘What is that man hiding?’ Perhaps the effects of his invention, the case method of teaching law. In The Moral Failure of Law Schools (Troika, November-December 1996), Alan Hirsch, later Professor of Legal Studies at Williams College, Massachusetts, explained how the case method corrupts law students and destroys their idealism:
… the primary method of legal instruction in the US is a blunt weapon for destroying a commitment to the public interest. … the so-called Socratic method carries out the mission not of Socrates but of his adversary, the sophist Protagoras, to show that clever arguments can be made on behalf of any proposition and that there are no right answers. The teaching of sophistry in law schools is subtle but pervasive. The student called on to start the Socratic inquiry is often told by the professor which position to defend, or simply told to take any position willy-nilly, without regard for what she may regard as correct. Sometimes, in the midst of the student’s analysis, the professor will tell her to shift gears and advocate the other side of the case. … Much of the academic community [seems] to agree with the Harvard professor, who as legend has it, snapped at a student: ‘If it’s justice you want, go to divinity school.’
Law professor Nancy Lee Firak, of Northern Kentucky University, wrote in ‘Ethical Fictions as Ethical Foundations’: Justifying Professional Ethics (Osgoode Hall Law Journal, 1986): ‘Lawyers are trained to cast the facts of a single event in several different (even contradictory) forms and are then taught how to argue that each form accurately represents reality.’ In short, how to lie. That suggests law schools stand foursquare for artifice, chicanery and greed.
Charles Kingsfield, the thug Harvard professor played with reptilian menace by John Houseman in The Paper Chase (1973), said: ‘You come here with minds of mush; you leave thinking like lawyers.’ He meant learning how to get money by arguing either side with precision.
Oliver Wendell Holmes Jnr (1841-1935) graduated from Harvard Law School in 1867 and was briefly a professor there in 1882. He wrote in The Path of the Law (1897): ‘For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether.’ President Theodore Roosevelt put Holmes on the Supreme Court at 61 in 1902, but they disagreed on the Sherman Act (1890), which made price-fixing by cartels a crime. Roosevelt said of Holmes: ‘Out of a banana, I could carve a firmer backbone.’ Holmes stuck to the court like a limpet until 1931 when Chief Justice Charles Evan Hughes told him that, at 90, it was time to go.
On his Legal 100, Professor McWhirter places Holmes 18th, Langdell 43rd, and Oxford professor Herbert Lionel Adolphus Hart (1907-92) 89th. He says Hart argued ‘throughout his career that law and morality should be separated’, and was ‘the most important legal philosopher of the 20th century’. Hart, however, is perhaps better remembered for being cuckolded by a number of Oxford dons, including Sir Isaiah Berlin (1909-97). Perhaps they took the view that if justice and morality should be separated, so could adultery and morality.
Thane Rosenbaum is a former corporate lawyer who teaches law at Fordham University, New York. He wrote in The Myth of Moral Justice: Why Our Legal System Fails to Do What’s Right (HarperCollins, 2004):
Morality does not appear in a law school syllabus … Fact is a legal term; truth is a moral one. The legal system’s notion of justice is served by merely finding legal facts without also incorporating the moral dimensions of emotional and literal truth … The public however, finds this situation intolerable, and it contributes to a kind of moral revulsion toward the legal system for its complacency about discovering truth.
Professor Rosenbaum told me in 2005 that he agrees with Justice Russell Fox that a legal system gets its moral face from a search for the truth. It follows that the adversary system has no moral centre, and that judges and lawyers are also reviled because they say things they know are not true.
Malcolm Turnbull (BCL Oxon), an Australian politician, was encouraged by elements of his (Liberal) party in November 2009 to say that global warming was over-rated. Declining, he said he was no longer a barrister, and hence could not run an argument in which he did not believe.
In his book, Professor Rosenbaum suggested a formula that would at least relieve judges of hypocrisy:
I am required by law to do what I must do today, even though I realize that it will strike some, including me, as immoral … Neither can I pretend that the result is just, because I know it is not. Nonetheless, I am bound to apply the law in this way, which will paradoxically produce both the correct legal result and the wrong moral outcome.
Has any judge said something like that?