There Oughta Be a Law

America is riddled with lawyers and obsessed with law. We have more lawyers per capita than any other nation, and sooner or later we package every important issue of policy, from war to ghetto economics and highway improvement, as an issue of law. We use our courts as temples of political science as well as of justice; our lawyers staff not only courts but legislatures, agencies, boards of directors, school boards, and college presidencies.

There are two books about lawyers and law that I wish someone would write. The first would be what the sociologists call an institutional study, or rather a series of such studies, of the legal profession; if successful, it would out through the lawyers’ own view of themselves and offer some fresh perceptions, some sense of the submerged problems that the profession has missed. The second would be more speculative, a book of sociology which would try to find, in the history or structure of American society, some explanation of our extraordinary obsession with law, and of the shape our law has taken.

Martin Mayer spent five years studying lawyers; he has written a long book, but it is neither of these. His purpose, the dust jacket says, was to make “a report on the law and its practitioners in the United States—from skyscraper suite to store front office, County Court House to Supreme Court.” That may sound like the first book I mentioned, but it is not. Mayer’s book is a string of quotations from hundreds of lawyers on opposite sides of dozens of issues, some shoe-banging editorials showing that the author can take sides, and some old stories about famous lawyers for comic relief. There are few insights, few discoveries, few signs that a critical intelligence has been at work.

Mayer is excellent at interior decoration—he describes the courts, the offices, the case-note factories, and the classrooms, in a way that sometimes goes beyond furniture and gives a sense of the smell and noise and tone of these dark places. He has collected, in one volume, all the legal jokes, epigrams, clichés, anecdotes, myths, and bed-time stories that one would need for a hundred bar association speeches. One must set against these feats, however, several mistakes in legal doctrine, and some foolish adventures into legal philosophy. (One example: “Law is a system of predictions, and predictions (as David Hume pointed out two hundred years ago) must be statistical.” It is not, of course, they need not, and he did not.)

The interest of The Lawyers lies in the light it can shed on more ambitious projects. Surely there is a lesson in it for anyone who wants to write a book of fresh perceptions about the old profession. He will learn nothing very new about lawyers if he allows them—as Mayer apparently did—to frame the questions as well as answer them. Lawyers are professional narcissists; from the first days of law school they are forced to study themselves, their practices, their ethics, their roles in society. If a reporter takes his questions from the lawyers, then he becomes the captive of conventional wisdom before he begins. He will limit his study to the topics the profession has decided are important, and he will produce, as Mayer did, repetitive essays on court delays and judges who take bribes.

BUT SOME OF THE MOST INTERESTING problems are not yet in the traditional catalogue, and a reporter must dig them out for himself. One submerged feature of Wall Street practice, for example, is the striking discontent of the young lawyers who came into the famous firms in the late Fifties and early Sixties, the cream of their college and law school classes. Mayer does not seem to be aware that a surprising number of the best of these have left, and many who have remained are resentful, not because of the celebrated late hours, but because they think of themselves as intellectuals with no intellect in their work, as social leaders who have somehow been cut off from decisions of social importance. The message has gone back to the schools, and the large firms are having difficulty in arranging interviews with the kind of men they once turned down.

The best law school graduates now want to teach, or to work in local government, or in neighborhood service programs, or in the civil rights division of the Justice Department. There is nothing surprising in this—they are men of their generation—but it does and will continue to raise problems of organization for the large commercial firms. If the trend continues, they will no longer have a large and constantly refreshed pool of bright young men who take responsibility early and carry a large work load. I suspect that the firms will respond by taking men of lower standing in their law school classes, and will pay more attention than they have done to the details of their education, trying to find those who have special aptitude and training in business law. If so, this will accelerate the trend, for there is a follow-the-leader aspect to choosing a career, and the brighter students with wider interests will want to keep one another’s company.

The law schools themselves face a crisis of sorts. The best of them are falling victim to their own zeal. For years they preached that legal education must go beyond the study of cases and statutes, into history, philosophy, and economics, into the practical world of police courts and slums. They now face a generation of persuaded students who demand training that the schools do not yet have the talent, the money, or the programs to provide.

The schools must reexamine the question of what sort of education they should offer. Those that decide to offer training in social science face a further decision. Is the purpose of this training to teach lawyers what sociology, psychology, economics, and the rest have discovered, and what they have not, so that laws can be made and administered more knowledgeably? Or is it to encourage lawyers to participate in the original research of these disciplines, bringing to them their sense of what lawyers need to know? The first goal might be served well enough by special survey courses, or even by adding social science materials to the reading lists of conventional courses in law, but the second calls for more radical organizational changes. Training in the methodology and theory of the social sciences, at a level of sophistication adequate to original research, would require carefully integrated joint programs with other graduate schools. Such programs, if they were to come to more than a few students taking some courses across the campus, would necessarily involve cooperation among faculties, which would cut into the law school’s traditional independence within the university. This might lead, in some cases, to composite graduate schools of social science, in which students might “major” in law, but participate in programs offered by other departments as well.

All this suggests, I think, that the present uniformity of the major law schools in structure and purpose is wasteful. The assumption has been that a good law school must train general and specialized practitioners, public officials, and academic lawyers as well, and that, if some new program is needed for one of these purposes, it must not be at the expense of the others. There is no reason, however, why law schools should not specialize. A school that experimented with joint programs in social science would emphasize the education of future officials and academics; it would be wrong to give up such experiments on the ground that not every law school should have this emphasis.

HERE THEN are two kinds of issues which Mayer has missed by sticking to the conventional agenda. It is more difficult to suggest an approach to the second book on the law that I think would be useful. We might begin by asking: Why have we had so little analysis of the impact of society on law? We have many studies of lawyers, but they treat lawyers as a race apart. Like Mayer’s book, they tell us how many lawyers go to what schools, how much money they make in different branches and combinations of practice, what professional organizations how many of them join, and so on, but not how their practices and arguments reflect the society they govern.

No doubt there are many reasons why these larger, more speculative issues have been left alone. One reason may be found in the popular and discouraging theory that lawyers think differently from other people. Mayer, for example, accepts this theory, and suggests that he knows what the legal mind is like. “During the course of more than five years on this job,” he says, “I have come to feel that one can on occasion thoroughly understand how a lawyer thinks about a given situation and still believe there are more productive ways to think about it—indeed, that there are areas of human experience where lawyer-like habits of mind positively inhibit understanding of what is actually happening.”

Although Mayer nowhere gives us the details of this “lawyer-like habit of mind,” the rough outline emerges clearly enough. He believes that lawyers think too much about rights and duties, and not enough about desirable social policy. I doubt he has in mind the private lawyer advising his client what to do, or fighting for his client in court. A lawyer in that position naturally concerns himself with the legal rights of the party he represents. Mayer objects to the fact that lawyers also emphasize rights when they are acting in public capacities, as judges, legislators, and professors of law. They try to attack social problems by sorting out the “moral” or “natural” rights of the participants, and this habit, Mayer thinks, blinds them to more pragmatic approaches to these problems that would better serve the broad social policies of the community.

Unfortunately Mayer has not investigated the sources of this “legal approach.” How does a profession come to have a style of thought? Why do lawyers have this one? It cannot be that this style serves some political interest or class, because Mayer describes the habit as a property of the profession as a whole, of radicals as well as conservatives. It cannot be that lawyers have a distinctive personality—they come in such an assortment of mental shapes and sizes, from such varied backgrounds, with such inconsistent ambitions and ideals, that the idea of a professional personality is absurd. Had Mayer pursued the question of why lawyers argue so much about right and duties he would have discovered that this habit connects, rather than separates, lawyers and laymen. The lawyer’s use of these concepts reflects his understanding of the moral practices of the larger community, and his concern, as a matter of strategy or principle, to take account of those practices in his arguments and decisions.

TO GRASP THIS FACT, and to identify these practices, we need to consider popular morality as well as law. The study of morality has been chiefly the province of philosophy. Until recently philosophers have either ignored what they called “conventional morality,” in favor of “true” or “absolute” morality, or else have treated it cavalierly, as simply “what people believe about morals.” They therefore failed to study one striking feature of the moral practices in American society: that we give different force to, and require different arguments to sustain, different sorts of moral judgment. We distinguish judgments about virtue and vice from judgments of ideals and the good life, and we distinguish judgments of obligation, right, and duty from both of these.

This last distinction is important to an understanding of legal argument. First, judgments of right, obligation, and duty have a special power in moral argument, because they override contrary policies or ideals in a way that other moral judgments do not. If I convince others, for example, that you have a moral obligation to contribute to my political party, or that I have a moral right to your contribution, they will think it appropriate for me to demand that you do so. They will support me if I do not accept your answer that you believe your money could be better spent elsewhere—on cancer research, for example. I will not have this sympathetic reaction if I convince them, not that you have an obligation, but merely that you would be generous to contribute, or that it would help to return the nation to fiscal responsibility, or help to strengthen our foreign policy. Even third parties who accept these reasons for themselves would acknowledge that you have a “perfect right” to reject them in favor of your own political or social ideals.

Secondly, because of this special power, judgments of right, obligation, and duty are subject to special burdens of proof. In order to show that I have a moral right to your contribution, I must bring the case under some established practice of obligation. I can do so by showing that you promised to contribute, or that you are the chairman of the fund drive and as such are expected to contribute, or that I once helped you in a way that now entitles me to call upon your help. But I cannot do so by arguing that your contribution would help to make America a more powerful or richer or healthier country, because the community has no practice of obligation that its members must act to these ends; and I cannot do so by showing that it would be generous of you to contribute, because generosity is different from duty.

Some claims of right or duty are controversial, like the claim that we have a duty to aid underdeveloped nations, because they are not obviously derived from a recognized practice, like promising. The argument behind these novel claims is that the duty does in fact follow from an established practice, on grounds of consistency, although we have failed to see this because we are ignorant of the connecting facts, or have been blinded by prejudice, or simply have not faced our responsibilities. The underdeveloped nations may argue, for example, that we have exploited their economies, and so owe them support on the same basis that we owe damages to anyone whom we have wrongly injured for our own gain.

We can summarize these two points of moral sociology in this way: A claim of right, in non-legal contexts, is a claim that does not depend upon the adherence of others to particular virtues, policies, or goals. A man who has sought and received jobs for his relatives through Republican Party channels will not convince the Party if he argues that he is withholding his contribution because of disagreements with its fiscal policy. To succeed, a claim of right must be based on a conventional practice, either directly, or indirectly through the argument that consistency requires that the practice be extended. The Party must point to a practice of reciprocity to support its demand for loyalty. These are the ground rules of moral argument; their net effect is to strike a balance between the claims of the individual for security and control over his life, and the claims of others to pursue the policies and goals they favor.

This brief analysis hides a great many qualifications, and it relies on vague and abstract statements about what “we” do. Still, if it is even a roughly accurate account of how the concepts of right and duty differ from other moral concepts, it explains why lawyers use these concepts so much. For lawyers who decide cases or lobby for bills or write articles are trying to justify the use of state power for particular ends. Sometimes they can show that the law they want will serve the general economic goals of the community. (For example, a lawyer might justify subsidies to farmers on this basis.) This justification is not always available, however, and sometimes a lawyer will need to argue that some group is entitled to have the state act in its behalf, without regard to the goals of the majority. In that case he must make an argument of right.

MAYER’S ACCUSATION that the “legal approach” neglects policy is therefore misguided. He fails to notice the difference between a policy argument and an argument of right, and so fails to see that there are occasions that call for one but not the other. Some lawyers will mistake these occasions, of course, and fail to attend to policy when they should. Fifty years ago policy arguments that should have been made were not made. That is not a central problem today, however; and, moreover, the examples Mayer gives are not cases in which this mistake has occurred.

Mayer criticizes, for example, the lawyers who are trying to attack urban poverty by calling attention to the social rights of the poor. He feels that their arguments divert attention from the research and planning that is necessary if we are to improve housing and education. But this confuses two issues, each important: What goals must the community have? What political and economic means must it use to reach these goals? The lawyers who are concerned with rights are speaking to the first issue, and Mayer can hardly claim that there is nothing to argue about. Recent American history shows no agreement that the poor, as a group, have any right to better housing or education; what they have so far been given is often thought of as charity or as the by-product of national economic goals (like subsidies to farmers). The “legal approach” argues that the poor have rights that the majority must recognize even if it is not feeling generous, and even if its larger economic goals are not served thereby.

Lawyers who make this claim follow the strategy I have described. They point to some recognized practice of obligation, and then argue that consistency requires extending to the poor the rights this practice generates. This strategy determined the successful arguments in the Supreme Court that a state cannot refuse an appeal from a criminal conviction because the defendant cannot pay for a transcript, and that a state cannot limit the vote to those who can pay a poll tax. It also suggests a more general argument, which should be urged in the legislatures. The states now offer a wide variety of public services, ranging from police protection and public education to public health and zoning. Few citizens could afford these services independently, and a state that did not provide them for the majority would be thought derelict in its duties, and callous of the rights of its constituents. If so, then these state services constitute a practice of obligation, and form a sound basis for asserting the general duty of a state to provide its citizens the essentials of a decent and effective life. It is inconsistent, and a breach of duty, to cut off the minority in the economic cellar, even if extending the practice to them would be vastly more expensive and troublesome, and therefore in contradiction to other policies of the majority. The force of this argument may be clear to some, but it is not generally accepted. Lawyers must try to document and support it, not abandon it.

THE SAME CONFUSION of policies and rights is involved in another of Mayer’s examples. He is unhappy about some of the rules the Supreme Court has recently developed to protect persons accused of crimes. “A certain irreducible idiocy underlies the argument of some civil libertarians,” he says, “that a cop who finds a man driving a stolen car does not have the right to ask the man how he came by the car.” He fails to understand the contrary argument: that since the driver is free not to answer, because he is free not to incriminate himself, it is wrong of the state to take advantage of him if he is too poor or ignorant to understand his position. The force of that argument depends on the justification that can be made for the principle of freedom from self-incrimination. If this freedom rests simply on a judgment of policy that it is the most effective safeguard against police brutality, then it would be silly to carry the safeguard so far as to stop the police from asking any questions at all before a lawyer arrives. But if the freedom rests, as Mayer’s civil libertarians argue, on an individual’s moral right not to condemn himself, then the state has a duty to take whatever steps are necessary to insure that a waiver of that right is voluntary and considered, even at the cost of policy efficiency. It may be that silencing the police goes a bit further than is necessary, but that is arguable, and the suggestion is far from irreducible idiocy.

In these and other cases Mayer’s failure to push beyond his “legal approach” theory has led him to miss the point of a legal argument. The same failure has caused sociologists and legal theorists to miss important relations between legal and moral practices. In any examination of society, the distinctions among classes of moral judgment must be kept in mind. It would be interesting to know, for example, whether conventional American morality is more “legalistic,” than that of other countries, in that it makes relatively heavy use of rights, duties, and obligations, as distinct from virtues and vices or goals and ideals. How does America compare, in this regard, with France or the Soviet Union? Are there significant distinctions within the country—is one class or section more “legalistic” than another? We should know more than we do, moreover, about particular practices of obligation which the law is supposed to reflect, like privacy. The law attaches utmost importance to privacy in sexual matters; does it follow the community in this, or some particular class or section? The lawyers are now wrestling with the question of whether certain sorts of mental abnormality should excuse those who commit crimes. Do the law’s provisional solutions, with which no one is particularly satisfied, reflect the community’s conventions of excuse or blame? Are these conventions in turn based on widespread beliefs about psychology that science has shown to be wrong or suspicious? Or do they stand for moral positions that are independent of psychology? These are hard questions. They lie at the intersection of social science and philosophy, which is still a desolate place. They are more promising material for legal sociology, however, than further studies of lawyers’ income.