Americans for Prosperity v. Rodriquez presents an opportunity to recover the original, formative understanding of free association.
Rebuilding a Ciceronian Legal Culture
It is daunting to be read by genuine scholars whom one admires. The thoughtful comments, elaborations, and criticism of Stephen Grosby, Charles J. Reid, and Dick Helmholtz have surely given the reader much more wisdom and provocation than did my essay.
Despite the many truths of my commentators’ criticism, Liberty Law Forum and its editor Richard Reinsch have allowed me the last word. Last, that is, the last word not counting the engaging and astute commentary from other readers, which I hope will continue, below.
Stephen Grosby fires the first salvo, calling me to task for burdening “the cultivated guild of the legal profession” with expectations that are undue. To expect any old lawyer to rise to the virtues to which Cicero occasionally rose – as nicely described by Charles J. Reid, in committing to public service rather than just personal gain, to demonstrate duty and responsibility, to integrity and fairness, and to manifesting the basic human virtues – is a tall order for someone daily working debt collections. Lawyers are, after all, raised in a trade school to learn the rules of the law, as if they are tools in a toolbox, to be properly selected to hammer, cut, sand, or twist whatever issue the client might need altered.
Yet, set against this flimsy view of law is the potential for a robust view, rooted in a culture that could inculcate young lawyers to the norms of personal virtue, of public service, of honesty and discretion and the priority of justice, which could be encouraged by teachers, practiced by students, expected by partners, and reinforced by the leaders of institutions of the bar. Thus, the tools would ordinarily be employed within that culture and according to its norms. They gain not only their utility but their significance and then their greater potential from that context. If it requires not mere workmanship but art, then the workman is more likely to become an artist.
I think Prof. Grosby is drawn to this view. An expert on the philosophy of cultures, he sees the potential of such corporate views to influence not only an individual but also the manner in which the individual would limit or demand actions consonant with culturally enshrined expectations for behavior.
Yet he knows that the norms I depicted metaphorically as Ciceronian are rarely, in fact, taught throughout the legal culture. Indeed they are usually ignored even in law school. (This is a point of particular significance in Dick Helmholz’s essay, which I will consider below).
For the culture of lawyers, though, at least some commitment to such norms is essential for lawyers to enjoy the benefits of their guild. Their monopoly in the courts, their influence in society, their leadership in civic life, indeed the respect of the public for the law itself (and not the lawyers) all depend on the servants of the law ensuring that – in general – the law works to protect the interests of nearly all those who are bound to it. In the long-term, the best manner for the interests of all who are governed by it to be protected is for the law to be carried out according to virtues that are ultimately worthy of respect by the people. As Prof. Grosby says, our legal institutions remain vibrant only to the extent these norms are embodied by individuals.
Thus, the threats to a Ciceronian legal culture, from within and from without, turn out to be threats to justice and to the health of the law itself. And these threats are all too obvious today.
Prof. Reid rightly notices that the business of lawyering has taken a dreadful turn, now that partners in law firms that enjoy the echoes of former prestige spend less time contemplating the law than competing to raise their profits per partner. The reflection required to see the law as a virtuous profession vanishes before the pressure to bill, especially as there are student loans to repay.
Fulfilling the desires of the client, so as to keep the client’s income, all too easily trumps the professional and independent assessment of the merits of the client’s desires. And the need to extract profits from vassal lawyers, i.e., associate lawyers, leads partners and corporations to diminish the interaction and support of the vassals to the least possible investment. Such bits of raw capitalism are a far cry from a professional culture whose members mutually assure a virtuous assessment of every lawyer’s task.
Turning, then, to Dick Helmholz’s brilliant commentary, he fills the gap between Cicero’s age and our own by deftly illuminating a millennial cycle of greater and lesser concerns for justice and virtue in the path of the law across Europe to America. Shining his light on the contradictions in Rome between the laws as practiced and the most basic contemporary ideals of justice, Helmholz forces us to see the limited scope of Cicero’s achievements, both in his life and in his legal system. Indeed, Cicero could hardly be said to have acted – always – according to his defense of public office as a commitment to justice for the least person as well as the greatest, or to his rejection of a conflict between what is honorable and what is in truth expedient.
Across the centuries, Helmholz sees the rise and fall of justice as superior to the laws. Justice, along with the great principles of law, was once taught to every student prior to teaching the specifics of obligations or property. Yet new institutions, laws of greater complexity, the slow rise of bureaucracy, the unpredictable effects of legislation, and a lessened commitment to the ideas of virtue or justice per se have recurrently elevated the toolkit of rules so far above justice and virtue that to many law students and lawyers, justice and virtue are akin to quaint and forgotten folklore.
Thus there is a special poignancy in considering Helmholz’s own confession. He is drawn to see in his own teaching his acceptance of the dominant approach of U.S. legal education, which presents the rules of law for acceptance without their moral context. He knows the moral lesson of a property rule that forbids a donor to try to give property to a great-grandchild born long after the donor’s death. The moral of the Rule Against Perpetuities is that the donor must face the implications of death: in giving property to our successor, we must let the children of the future manage their property without interference from the unknowing hand of the then-dead past.
Yet few law professors teach property this way, just as few teach that antitrust laws arose to protect human dignity from the unjust demands of monopoly, or teach the virtue of prudence that underlies the balance of constitutional rights. Such truly Ciceronian approaches, one realizes, are implausible in a community of teachers agog with economic theories that require the poor person (the cheapest cost avoider) usually to lose to the rich person (the wealth maximizer). Then again, Cicero hardly fared well in the world of legal realism, which found a shortcut through the forest of virtue and duty along the path of interest and preference.
We all may take heart in knowing that, just as Cicero could rise above the venal, slave-loving laws of Rome, so some of our students rise above interest and ego to serve others, to uphold unpopular laws and to criticize unjust laws, even for clients who will not make them rich for doing so. We know that lawyers, in great firms or small, may use their authority to push their clients and their opponents toward right and fair conduct, and not always toward profit or pride. We know that leaders of communities, of governments, of industries arise from law and bring not only a talent for analysis and a skill at compliance but also a sense of the humanity depending on the conduct of those institutions to help them rather than harm them. From that knowledge arise both the longing for more to do so and the demand that more be encouraged. Encouraged by whom?
One task of law teachers, of lawyers, and of judges must then be to notice those lawyers past and present whose sense of duty, of pietas, and of justice make them fit models for emulation. We must teach ourselves, our colleagues, and our students to emulate such models and to discourage drift from them.
We must renew our examination of the laws and their meaning, to assess their genuine purposes and to test those purposes against a genuine yet humble concept of justice. As Cicero understood, it would be a concept of justice that respects the ancient notions of virtue and fidelity and that recognizes that there is often no perfect choice but only the choice that causes the least evil. Though a legal profession devoted to justice would not eschew profit, it would constrain the pursuit of profit at the expense of justice.
We must revive the sense of contemporary law that admits that the success of its rules depends on the justice of their application as well as their content. And, we must teach, model, and demand a cadre of lawyers who understand that every rule, every act of the law, even every collection of a debt promotes or degrades that justice for somebody, every time. Then we might well find a Cicero in every courthouse, perhaps even on many billboards and in many boardrooms. They will be the lawyers.