AustLII Home | Databases | WorldLII | Search | Feedback

Legal Education Digest

Legal Education Digest
You are here:  AustLII >> Databases >> Legal Education Digest >> 2005 >> [2005] LegEdDig 8

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Sage, J J --- "Authority of the Law? The Contribution of Secularised Legal Education to the Moral Crisis of the Profession" [2005] LegEdDig 8; (2005) 13(3) Legal Education Digest 11

Authority of the Law? The Contribution of Secularised Legal Education to the Moral Crisis of the Profession

J J Sage

[2005] LegEdDig 8; (2005) 13(3) Legal Education Digest 11

31 Fla St U L Rev, Spring 2004, pp 707–749

‘So why did you go to law school?’ This question is typically asked of every first-year law student countless times. At one time, the practice of law was viewed as a noble profession, but over the last century the study of law has undergone a significant transformation and earned itself a reputation amongst the public as one of being unethical and greedy, and internally as one composed of unsatisfied and unhealthy individuals. As a result, many legal educators, ethicists, psychologists, philosophers, and theorists have spent significant time and resources on assessing and commenting on the current condition of the legal profession.

Many commentators note the role law schools and the bar have played in perpetuating the tripartite crisis and the responsibilities they should assume in addressing it. The shift to a scientific and amoral approach to the study of law manifested by the current legal academia has caused many legal professionals to deny an external moral authority and rely upon themselves to discover and define an individual or relative sense of morality.

Langdell replaced the lecture method of imparting law as logically connected principles and norms with the case study method, instructing law students to derive the rules of law step-by-step through the analysis of court opinions. By design, Langdell set out to eliminate both God and the Holy Scripture from the study of law. His case study method approach brought about a change not only in the method of instruction, but also in the law school curriculum. Despite these shortcomings, nearly all law schools in the nation implemented Langdell’s case study method as the primary approach to legal studies by 1914.

Despite the prominence Blackstone’s Commentaries held in early American legal education, they remain relatively unknown in contemporary legal study. Rather, the secular study of law developed by Langdell and Holmes is known to generations of law students, including those currently in attendance. Modern law students are intimately familiar with the prestige of Harvard Law School and the case study method that originated therein. These principles of law, governing judicial decisions, are not explicit in the court opinion; rather, the student is expected to scientifically derive the principles from the holdings and supporting rationales. Through analytical reasoning, the student discerns the origination and evolution of the legal principle via the chronological study of cases.

Within the walls of the legal academy, it has become common to hear ‘law is what we make it’ and ‘morals have nothing to do with law.’ The only instruction students receive in the moral dimension of law is at best found in the context of how the lawyer must detach individual moral principles and advocate for the client. Such moral content is far from explicit. There is no discussion of an authoritative base of law or eternal principles that guide the law beyond human thought and philosophy.

The ABA’s adoption of the 1969 Model Code of Professional Responsibility (ABA Code) reflected this shift in legal ethics and predominant trend in twentieth-century legal education. The ABA Code detailed the responsibilities, duties, and obligations for the legal professional and thus amplified the discussion of legal ethics. More recent modifications, and the proposed revision of the Model Rules by the 2000 ABA Ethics Commission, move further away from moral aspiration and reduce professional conduct to mandatory responsibilities and duties of lawyers. This evolution from Canons to Rules, from moral aspirations to regulated duties, remarkably coincides with the dissemination of legal positivism and the escalation of the tripartite crisis. As a result of the Harvard benchmark for the philosophy and method of legal education and the ABA’s regulation through accreditation, America’s legal profession bears the fruit of jurisprudence void of a divine lawgiver and an inherent moral dimension.

The underlying positivist philosophy directing twentieth-century constitutional interpretation is the idea that the Constitution is a living document and that constitutional principles evolve with the enlightenment of man. This jurisprudence dismisses the original intent of constitutional provisions and permits foundational principles to change with the modern wisdom of the Court. Institutionalised legal education’s rejection of the Lawgiver, which is reflected in the courts today, is in essence an attempt to cleave the heart of the law student and the legal professional by mandating neutrality. In reality, neutrality is an illusion that presumes that secularism, naturalism, scientism, or atheism is not a religious belief. The manifestation of legal positivism is in practice awarding more protections and preference to the religion of humanism or secularism and forcing the legal professional who believes in God to deny his authority.

Legal positivism combined with an obvious judicial supremacy fundamentally permits legal principles to become manipulative tools for the judge or advocate to advance his individual or personal sense of right and wrong. Despite the asserted role of precedent and stare decisis, this jurisprudence results in an unpredictable ‘rule of law’ riddled with inconsistencies and contradictions. The manipulation of positivist principles leads to the degeneration of the law’s fidelity, which is evidenced in recent court decisions involving the moral issues of homosexuality and abortion.

As legal positivism seeped into the realm of legal ethics and manifested the new paradigm that disavowed any connection between law and morality, the legal profession continued in ethical decline. By the 1980s the legal profession was in a recognised crisis state. The ABA and law schools sensed the urgency to respond to the profession’s ethical crisis. But their response was seemingly constrained by two fundamental premises. The first is that legal ethics is different from ordinary ethics, in that it eliminates the moral conscience. The second is the premise that the legal system is adversarial and demands a lawyer to fulfill his role as an advocate first and foremost, without invoking personal beliefs or sincere pursuits of justice.

Following its adoption of the 1969 Code, the ABA began to discuss the imposition of a nationally standardised measure for legal ethics based on its promulgated rules. By implementing the scientific method, premised on the notion that man can discover the rules of law independently of God, Langdell, Holmes, and their devout disciples undermined the revealed law and redefined the role of the legal profession — contrary to early American jurisprudence and legal instruction. Their secularisation of legal education, furthered by the ABA, has had a lasting impact on America’s legal institutions through the spread of legal positivism. After nearly a century of institutionalised legal positivism, much of the legal profession is captivated by a philosophy that dictates there is no external authority or accountability in the law beyond that which is judicially acknowledged.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/LegEdDig/2005/8.html