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Wednesday, October 11, 2006

"The Ordinary Religion of the Law School Classroom"

My previous post on Law as a Means to an End showed how, at the outset of the 1970s, ongoing social and political conflicts affected law students, and contributed, at least for some students, to skeptical views of law and legal reasoning.  In this final post, I will return to the dynamic set out in the initial post: the spread of an instrumental view of law within the legal culture, concomitant with a loss of faith in the social good.  Both of these aspects were in place by the 1970s.

Today an instrumental view of law is so taken-for-granted that it would be odd--redundant and obvious--for anyone to write an article declaring: "Hey, we have an instrumental view of law."  Yet, in the 1960s and 1970s, several such articles said precisely that, identifying it as a novel and worrisome development.  In 1978, Roger Cramton, the Dean of Cornell Law School, observed that an instrumental view of law had become "the ordinary religion of the law school classroom."  He wrote:

Today law tends to be viewed in solely instrumental terms and as lacking values of its own, other than a limited agreement on certain 'process values' thought to be implicit in our democratic way of doing things.  We agree on methods of resolving our disagreements in the public arena, but on little else.  Substantive goals come from the political process or from private interests in the community.  The lawyer's task, in an instrumental approach to law, is to facilitate and manipulate legal processes to advance the interests of the client.

Cramtom, and others at the time, attributed this view of law to the influence of the Legal Realists.

Reading this passage today, it is difficult to appreciate Cramton's alarm.  Of course we view law that way--what other way could there be?  Cramton recognized what we have forgotten, that earlier generations did not teach that law is an empty vessel to be wielded in an instrumental fashion.  Law was thought to have a built in content or integrity; it was comprised of substantive legal principles, not just process values.

To get a sense of this long defunct understanding, and how far we have moved away form it, consider this 1937 description by (Legal Realist) Max Radin of the original purpose of the case method:

The case method was, of course, a method of dialectic.  But its principal purpose was not that of training students in method but of inculcating in their minds certain legal principles which were regarded as valuable.  They constitute the 'right doctrine,' the 'true doctrine' or the 'right theory,' the 'true theory'--no one said the 'orthodox theory'--and if the student remembered the propositions and assumed them to be irrefutable, he had been well taught.

Although we still use the case method today, we (law professors) have inverted its thrust.   No longer are the cases examined to demonstrate the "right" doctrine.  We teach students to attack the analysis, finding weaknesses in the court's reasoning; we ask them to make the best arguments on either side, showing that the case could have gone either way, teaching them that legal rules are tools in the hands of lawyers.  We show students, as Llewellyn put it, "to manipulate the machinery of law."

The second relevant aspect of the period, as I indicated at the outset, was a loss of faith in the social good--either in the belief that a single common good exists, or that we can agree upon it.  This was also a theme in the legal literature of the 1970s.  Perhaps the most prominent example of this was Arthur Leff's "Unspeakable Ethics, Unnatural Law" article in the 1979 Duke Law Journal:

There is no such thing as an unchallangeable evaluative system.  There is no way to prove one ethical or legal system superior to any other, unless at some point an evaluator is asserted to have the final, uncontradictable, unexaminable word.

Leff's essay memorably ended with a plea: "God help us."

Today, no one would think to write an article making Leff's observations--just as no one to think to write an article announcing that we have an instrumental view of law--because the fact of intractable value disputes is now taken for granted.

Let me briefly recapitulate the core points made in this series of posts: by the1960s and 1970s, a purely instrumental view of law had taken over the legal academy; society was sharply divided by social and political conflict; people had lost faith in the idea of the social good, or that it can be agreed upon; and there was a great deal of skepticism about the government and about law.

Law as a Means to an End traces out the consequences and implications of these views in the contemporary legal culture, examining, in turn, theories of law, the practice of law, cause litigation, judicial appointments and judging, legislation and administrative regulation.  The final part of the book elaborates on ways in which these various trends threaten to corrode the rule of law.

One final note before leaving off: More than a few readers of these posts will object that law has always been seen and utilized instrumentally, regardless of whether the legal elite or lawyers previously claimed otherwise.  This reaction is correct, as I also show in the book.  But it is a mistake to conclude therefrom that the shift to a pervasively instrumental view of law within the legal culture has had no real consequences.  A radical shift in prevailing ideas inevitably has implications for action.

My thanks, again, to Dan Markel and the PrawsfBlawg crew for allowing me to tread on your turf.

Posted by Brian Tamanaha on October 11, 2006 at 05:19 PM in Tamanaha | Permalink

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