Will the American Bar Association intervene to prevent the Left’s Kulturkampf in the nation’s law schools?
I am an admirer of Steve Sheppard and of his scholarship. His book on the ethical obligations of lawyers is not just as a reminder of the necessity for lawyers to comply with lawyerly standards. More than formal compliance with the canons of ethics is needed today. Serious consideration of the true moral purposes of a system of justice is what is required.
There is also more to recommend about the book than this lesson. It is a good read. It is thought-provoking. And Sheppard’s present Liberty Forum essay asking “where did the noble lawyer go?” similarly invites us to think about the apparent lack of modern lawyers who are admired for upholding the ideals of that justly famous Roman lawyer. In our society, lawyers who could be considered in Cicero’s league are thin on the ground. There are a few, but we need more to show us the way.
As a historian of the law, and in a small way a student of the law that Cicero himself practiced, I can claim no special expertise in the current law of ethical behavior or the state of compliance with the canons of ethics by American lawyers. Sheppard’s essay has nevertheless moved me to consider the history of the subject. It has even encouraged me to think that this may be one of those special occasions when history sheds some light on a current problem.
My reactions to the essay can be divided in three parts, all of them historical.
The first is that we should hesitate before becoming romantic about either the legal probity of Cicero’s era or the merits of the laws of Rome. Sheppard begins with exactly this reminder, and Cicero himself was certainly no romantic. He took note that “injustice often arises through trickery and over-subtle but wicked interpretation of the law.” It was his indirect plea for following the spirit rather than the letter of the law, and he thought his own society needed more of it. “Legalism” was not justice. Cicero also considered the chief problem for Roman government lay in the all too often justified suspicion of venality in public officials. That there were serious defects in the Roman legal system he did not doubt.
In addition, at least by our lights, the law that Cicero professed would scarcely pass muster as part of a proper system of government. Its main tenets were determined by a small group of gentlemen of the upper orders of Roman society. They were skilled lawyers, no doubt, but they did not worry much about proper provision of welfare benefits for the poor.
The law itself was also marked by features we now find repellant—slavery, for example. It was a fact of life. Indeed it was one of the foundations of Roman life; Cicero described it without shame. He contributed to the law on the subject.
Torture was also a regular part of the legal system. Although it was surrounded by safeguards to prevent abuse, contemporaries regarded it as a legitimate means of discovering the truth. The methods of torture in use then, and well into the post-medieval world, would have made water-boarding seem humane by comparison.
My second reaction to Sheppard’s description of the current state of the legal profession was that what he described so well is not unprecedented. It has happened before. More than once. Periods in our history characterized by rising numbers of lawsuits and expansion of the law’s scope to encompass matters that had not previously come under the scrutiny of courts and judges have often encouraged widespread distrust of lawyers.
In the history of the English common law, for example, the 16th century was such a period. The number of cases brought in the royal courts increased markedly. So did the number of lawyers. Changes and expansion in the scope of the substantive law were taking place. One might assume that these were seen at the time as the spread of valuable services to greater numbers of people. However, most contemporary observers were not of that opinion. As a clear-sighted modern student of the period put it,
Most articulate men of the period [regarded] the increase in litigation as a disaster, and the lawyers who brought the cases into the courts a group of dishonest tricksters who were a cancer in the body of the commonwealth.
Were these “articulate men” wrong? I will not assert that they were, but I will say that in the testing times that were to come soon thereafter—the times when the Stuart monarchs sought to stretch the royal prerogative beyond the bounds of reason and tradition—there were English lawyers ready to stand up for the rule of law.
A similar example comes within the scope of the subject that has occupied me for many years: the history of the canon law as it was put into practice in the law courts of the medieval church. The 12th and 13th centuries were years of advance in this corner of European law. The ancient law was clarified and amplified by new enactments. Regular courts were established and their jurisdiction defined. New avenues of redress for clergy and laity alike were opened up.
Did these developments win the praise of observers at the time they occurred? If they did, it is hard to find much of it in the historical record. What one sees instead is full-bodied criticism.
St. Bernard of Clairvaux (1090-1153) was a keen observer. Armed with information from many parts of Europe, he gave voice to unstinted criticism of the legal profession in his day. In this, he was far from the only such critic. Bernard wrote to Pope Eugene III, for instance, warning him against the “wrangling and the listening to litigants from morning to night” that had become characteristic of life at the papal court. Everywhere, he observed, the laws of Christ were being supplanted by the laws of Justinian, and it was the “malign influence” of ambitious lawyers that lay at the heart of this change for the worse.
Was Bernard mistaken? Others shared his view, and I will not assert that there was no truth at all in what he said. However, that it was quite one-sided does seem obvious. Some good came out of what he described as “wrangling.” A prominent modern student of the history of Western law described what emerged from it as the first modern legal system.
My third reaction to Sheppard hit closer to home than the first two. His essay prompted me to ponder whether we teachers at American law schools share some of the blame for the state of the legal profession. Are we not subject to reproach for allowing serious concern for morality as a component part of legal the system to fall into desuetude? That has happened, and it contrasts markedly with the character of legal education based upon Roman law that prevailed in earlier centuries.
Consider, for example, how the study of Roman law was conducted at a European university in medieval and early modern times. It began with texts directly connected with the high purposes of all law. They were contained in the Institutes and the Digest of the Corpus iuris civilis. The two first titles in both of these collections were De iustitia et iure and De iure naturali et gentium et civili. Lectures given each year opened with a recitation of these titles and an exploration of their contents.
Thus, European law students first heard what the fundamental purposes of law were. They then heard about the basic sources of law that were employed to achieve those purposes. Natural law was part of both. It was a foundation for all positive law. Students thus began with texts that stated the assumption that God had implanted certain principles of conduct and justice in the hearts of men and that these principles furnished a correct foundation for all enacted law. The Bible (Psalms 40:8, Jeremiah 31:33, Hebrews 8:10) repeatedly proclaimed it to be so. The assumptions that established a law of nature were widely recognized, as readily accepted as normal parts of life then as the assumption of the human appetite for material gain is today.
The law so implanted in men’s hearts was meant to teach all peoples the way to justice. A basic purpose of law, students would have heard, was to do right and secure to all persons what was due to them. That is what the law said. It is also what the teachers said.
Determining what was due in fact to each person might not have been immediately obvious to beginning law students. Indeed, it is not obvious today. However, the students would have heard that a fuller understanding of the law would come if they drew conclusions from principles of morality fashioned from the law of nature and if they looked behind the positive law for concrete examples of the consequences of those same principles. One function of legal education was to teach students how to do this.
It probably does not make sense to wax too enthusiastic about the actual results of these medieval lectures. We know too little about what lessons the students actually carried away from them. However, it is at least clear that they would have heard some of the lessons that Steve Sheppard’s critique of modern legal education shows we have lost sight of. How different the older lectures from what students now hear in American law schools!
Two recent developments in legal education, the rise of Critical Legal Studies and of Law and Economics, obviously fall short of teaching the importance of moral values. If anything, they do the reverse. If law is a creature of class interests, or if it is a means of achieving efficient market outcomes, what room is there for high moral purposes?
Those of us who have not embraced either of these movements must ask whether what we do is any better. I myself doubt that in teaching I have made sufficient room for discussion of the moral purposes of law.
An example would be the Rule against Perpetuities. It is an appropriate one for teachers of property law (like me). It once had a moral component—requiring men to face the consequences of their own mortality. Perpetuities were said to “fight against God.” This image meant simply that perpetuities were contrary to immutable principles of nature. Perpetuities sought “to stand in the way of the providence of God, who alone sets up and pulls down as He pleases.” For that reason, no person should attempt to predict or control the future, and creating perpetuities did just that. Today, however, this purpose has been forgotten, and perpetuities are regarded as having an economic goal: the creation of a free market in land. I doubt that one Property teacher in 25 knows of the Rule’s original goals.
In short, then, I liked Steve Sheppard’s essay. It encouraged me to think. Some of what he describes disturbs me less than it does him, but I fully join in his parting reminder of the importance of maintaining the Liberty Fund’s projects to make the most valuable sources in our historical archives accessible to an audience that would otherwise be denied them. As he rightly says, doing this will encourage the debate that is essential for the preservation of a legal culture that promotes the law’s best purposes.
 Stephen M. Sheppard, I Do Solemnly Swear: The Moral Obligations of Legal Officials (Cambridge University Press, 2009).
 Marcus Tullius Cicero, De Officiis, edited by M. Winterbottom (Oxford University Press, 1994), Lib. I., no. 33, p. 14.
 Ibid., Lib. 2, no. 12, pp. 85-87.
 Barry Nicholas, Introduction to Roman Law (Oxford University Press, 1962), pp. 28-31.
 C. W. Brooks, Pettyfoggers and Vipers of the Commonwealth: The “Lower Branch” of the Legal Profession in Early Modern England (Cambridge University Press, 1986), p. 132.
 James A. Brundage, Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (University of Chicago Press, 2008), pp. 126-35.
 See the evidence collected in John A. Yunck, The Lineage of Lady Meed: The Development of Mediaeval Venality Satire (University of Notre Dame Press, 1963).
 Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (Harvard University Press, 1983).
 See Sven Stelling-Michaud, L’université de Bologne et la pénétration des droits romain et canonique en Suisse (Geneva, 1955), pp. 47–75.
 See, for example, the evidence presented in Gerald Strauss, Law, Resistance, and the State: The Opposition to Roman Law in Reformation Germany (Princeton University Press, 1986), pp. 31–37.
 See Giovanni Baptista Caccialupus (d. 1496), Tractatus de modo studendi in utroque iure (Venice 1569), Docum. VIII (advice given to law students that each “[t]andem quaerat veritatem et aequitatis et iusticiae sit amator”); see also James A. Brundage, Medieval Origins of the Legal Profession (University of Chicago Press, 2008), pp. 248–54; Jacques Paquet, “Aspects de l’université médiévale,” in Universities in the Late Middle Ages, edited by Jozef Ijsewijn and Jacques Paquet (Cornell University Press, 1978), pp. 15–25.
 The Rule holds that an attempt to create an interest in property in a person whose identity may be uncertain until the death of all persons alive plus 21 years is invalid. See Sheldon Kurtz, Moynihan’s Introduction to the Law of Real Property, Fourth Edition (St. Paul, Minn.: West Publishing, 2006), pp. 256-61.
 Anon. (Chan. 1599), Cary 9, 21 Eng. Rep. 5. Other cases to the same effect: Mildmay’s Case (1605), 6 Co. Rep. 40a, 41b, 77 Eng. Rep. 311, 315; Hoel’s Case (1622), Win. 54, 57, 12 Eng. Rep. 46, 49.
 Pells v. Brown (1620), 2 Rolle 216, 221, 81 Eng. Rep. 760, 763. See also Duke of Norfolk’s Case (Chan. 1681) sub nom. Marshall v. Holloway, 2 Swans. 454, 460, 36 Eng. Rep. 690, 692.
 A fuller exploration of the subject is found in Ray D. Madoff, Immortality and the Law: The Rising Power of the American Dead (Sheridan Books, 2010), pp. 8, 76-78.
 A partial exception is Steven Horowitz and Robert Sitkoff, “Unconstitutional Perpetual Trusts,” Vanderbilt Law Review 67 (2014), 1769-1822.