Wherefore Art Thou Cicero?

With “Where did the Noble Lawyer Go?: Looking for Cicero in the Boardroom and on the Billboard,” Professor Stephen Sheppard has provided us with a provocative, as one expects from the editor of the three-volume Selected Works of Sir Edward Coke,[1] rumination on the decline of the legal profession. He contrasts the lawyer of today with Cicero, “the model of the lawyer as hero,” the civic leader who guards the ideals of the law. The contrast is appropriately self-reflective, as Sheppard raises these questions for our consideration: “What does the hunt for Cicero mean? What should we expect a modern Cicero to care about? And, if any of this matters for us, what are we to do?”

To raise the image of Cicero as an ideal to be contrasted with the reality of the corporate lawyer of today may blind us not only to the weaknesses of the past but also to those selfless lawyers who today do what they can to defend the rule of law. Sheppard acknowledges and accepts this risk, because he knows that “something terribly important has been lost” or is in danger of being lost—a something that he is attempting to capture by recourse to this image. However, even if something terribly important is in danger of being lost, it may also be that by framing consideration of what that something is with the Ciceronian ideal rather than the practice of the law, even as ridiculed by Dickens in Jarndyce v. Jarndyce in the novel Bleak House (the latter more in accord with the average person’s experience of the law with the lawyer’s fee of $500 per hour, that is, the charge for a several minute-long telephone call), Sheppard has placed a burden of undue expectations on the cultivated guild of the legal profession.

Was the ideal of the noble lawyer ever the norm? If the well known line about lawyers from Shakespeare’s Henry the Sixth has always aroused more than an informed chuckle, does that line and the continual response to it indicate how the practice of law has been viewed for a very long time? If so, disappointment with the legal profession is nothing new. Should we expect something different? Above all, should we expect something different in a large, complex society organized around rights of private property? Sheppard thinks that we should and must expect something different by raising “the battle for Cicero’s soul”: his metaphor for the “contest for the meaning of the duties of the [legal] profession.”

It is true and certainly understandable that we rightly esteem as heroes Edward Coke, John Selden, Matthew Hale, and, in the American context, John Adams—all lawyers. It is even probable that the names Coke, Selden, and Hale are known to some American professors of law. Nevertheless, the law with its heroes is one thing, practicing lawyers are another. Disappointments with how the law is actually practiced long pre-date Dickens and Shakespeare. One assumes that Moses’ instruction to pick men “who are wise, discerning, and experienced” to render impartial judgments (Deuteronomy 1: 13-17) was necessary precisely because of incompetent, corrupt judges like Eli’s sons. The insistence on the impartiality of the law—that legal judgments should favor neither poor nor rich—in Leviticus 19:15 was mostly likely because of the favoritism of too many judicial rulings. For every discerning Solomon who wisely executes justice in determining the parentage of a child (I Kings 3:38), there is the Solomon who is described as violating the law (1 Kings 11) and subjecting the population to forced labor and burdensome taxation (1 Kings 12:4). Be that as it may, let us proceed by accepting that Sheppard has good reason to lament the sorry state of the legal profession.

There is much that can and should be said about the significance of the decline of all of the professions, by no means just the legal. I have no doubt that one reason for that decline is the erosion of the distinction between right and wrong: an assault on what Philip Rieff called “the commanding truths” of our civilization.[2]  All the professions have in one way or another been complicit in this erosion and assault. This is the broader significance and merit of Sheppard’s essay. A proper evaluation of the profound problem of this decline requires nothing less than an extensive, incisive cultural analysis of our times—a task that can not be undertaken here. Rather, in these brief remarks, I limit myself to a few observations, beginning with a modest question to the professors who teach law and to the Deans of Law Schools, the implications of which are not modest, and then move to a more general consideration.

Let us assume that universities, including professional schools, are capable of having a small bearing on the civic and ethical conduct of a few students. We do not assume more than a small influence on a few students; for we recognize that the character of an individual is likely more profoundly shaped by other factors. Given this assumption, one wants to know how many of the students in our law schools know anything about Cicero? How could they? And if they do, they will have to be familiar with Tacitus’ Annals, so that they know what was at stake with Cicero.  How many law schools require a year-long course in the history of the law (distinct from the one course on American constitutional law)? Are the names Bracton, Fortescue, Savigny, Gierke, or the dispute over the Lex Regia, or the long controversy over “corporate personality” known to these students? Does the standard curriculum of law schools recognize the merit of exposing students to comparative law, to the differences between common law, Roman law and Canon law, or the distinction between qādī and muftī in Islamic law? These are, of course, rhetorical questions; but one wonders just what is supposed to be the institutional context for Sheppard’s call for “the recruitment of new Ciceros?”

Law school is a trade school, where students must take courses on contracts, torts, property, bankruptcy, criminal and civil law; and, when time, interests, and finances permit, take more specialized courses on patents, trusts and estates, taxation, and so forth. Just as one wants a competent engineer to design a bridge, so one wants a lawyer to draw up a correctly written property deed, contract, or to make certain a company is compliant with SEC regulations. The client expects no less; he or she expects competence in these increasingly complex and highly specialized areas of the law. Is this complexity, specialization, and all that they imply, including the unavoidable reasons for both, a powerful factor in the decline of the legal culture about which Sheppard writes? If so, we now enter into what also cannot be pursued here: the more than one hundred year-long examination of the consequences of the complexity of large, modern, increasingly centralized and bureaucratic society.

Let us, however, acknowledge as appropriate the anguish of the professor of law who has the moral rectitude to accept responsibility for the culture of the legal profession. If the study of the law is a preparation for a trade, it is also more: law is a profession, the practice of which deals with the propriety and stability (the peaceful means, through established substantive and procedural criteria, to settle disputes) of social relations. However, if one argues that the study of law by future, practicing lawyers must be viewed as preparation for not merely a trade but rather a calling that has wide-ranging implications for how we live with one another, should we not expect a corresponding modification in the curriculum of the law school? Even if there should be modification of that curriculum, one has good reason to suspect its influence will be minor, for lawyers and the practice of law do not exist in a cultural vacuum. Nevertheless, perhaps a redesign of the curriculum of law school would be worth the effort, if the imagination of even one, potential Cicero will be aroused. But now: how likely is such a modification of the curriculum? A Cicero, Hotman, Selden, and Adams (certainly Madison, but he was not a practicing lawyer) were all broadly educated in the humanities. It is impossible to imagine a law school curriculum attempting to replicate their education. Doing so would represent an impossible burden. And we know better than to expect satisfaction by turning to the undergraduate education at universities today to provide that broad humanistic preparation.

I now turn to a more general consideration. I note that in Sheppard’s stimulating brief essay, the word “culture” appears thirteen times. It is a term that we all employ easily, perhaps carelessly. What do we mean by the term? What is the relation between culture, the professions, and various institutions? What is the relation between the character of the individual and culture? Some think that the concept of culture is airy-fairy or mystical. Thus, there have been analytical efforts to avoid reference to the term and the problems implied by these questions, for example, arguments that property rights are sufficient, that certain institutional relations—for example, the separation of church and state, or an independent judiciary, or federalism, or the market and corporations, and, more extensively, civil society distinct from the state—are sufficient. Yet, however crucially important property rights, institutional arrangements, and a sphere of association distinct from what should be a limited state are—and they are crucially important—the problem of culture, including the formation of the character of the individual, keeps nagging the analyst. It is, I think, the problem hanging over Sheppard’s thoughtful and justified concerns. “Culture” has a long and important place in our history of the law; for it has much to do with Bracton’s concept of “the university (universitas) of the realm” that exists, as Maitland noted, above the king, that is, above the state.[3]

Sheppard expands his use of the category of culture by observing that political and bureaucratic cultures have “interfere[d] significantly with the subculture of the legal profession itself,” resulting in a “corporatism” that has undermined “Ciceronian behaviors.” Such are the consequences of increasing centralization with its attendant concentration of power. The alternative—as Cicero had pursued in his defense of “the long-lived customs of Rome that were enshrined in its laws and that protected the rights of Roman citizens, the prerogatives of the Senate, and the limitations of power inherent in the various offices of the state”—is for the lawyer today to turn to and cultivate what Sheppard calls the “archive of historical legal materials” in order to limit the concentration of power. The archive contains the legal legacy—the tradition—of liberty; and to the extent that it does, it provides the legitimacy for the new Ciceros’ arguments in defense of that liberty. But for our purposes, the relevant question should also be: what are the psychological consequences of such a limitation of power so that new Ciceros might develop?  A limited state has never been only a prerequisite for efficient market relations. It is that, but more pressing for the concerns raised by Sheppard is the recognition that the character of the individual develops the capacity for “Ciceronian behaviors” to the extent to which the individual can take initiative, take risks, and, in so doing, develops both the responsibility for his or her environment, and the confidence to act by himself or herself and especially in concert with others.

To secure such an environment for thought and action has always been and remains what a modern Cicero should care about. In its absence, we find what we have today: a degradation of character arising from the cowardice of narrow self-seeking advantage—a cowardice that never puts narrow advantage at risk because of fidelity to the higher ideal of liberty among other ideals. However, the “hunt for” or “the recruitment of” new Ciceros assumes that those higher ideals are both known and that there is a commitment to them.

Whatever idiom one chooses, whether that of sin or that of the limitations of our knowledge, to account for fallibility, the problem of the flawed individual remains and will always remain. Our institutions and our professions, and the ideals or principles around which they are organized, exist and remain vibrant only to the extent that they are vivified, to the extent that those principles are embodied, by individuals. But then, what of the character of those individuals in a time of concentrated power, bureaucratic corporatism, and uncertain ideals?

[1] Steve Sheppard, The Selected Writings of Sir Edward Coke (Indianapolis: Liberty Fund, 2003)

[2] Philip Rieff, My Life Among the Deathworks: Illustrations of the Aesthetics of Authority (Charlottesville: University of Virginia, 2006)

[3] Frederick Pollock and Frederic William Maitland, The History of English Law Before the Time of Edward I, second edition, Vol. I (Cambridge: Cambridge University Press, 1923), p. 688.


The Bureaucracy’s Creep Against Life

This past Friday, the U.S. Department of Health and Human Services (HHS) postponed for a year (until August 2013) the effective date for an interim final rule (IFR) that would require many religious employers to cover under their health insurance plans preventive pregnancy services, from contraceptives to sterilization and “morning-after” pills.