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2005] THE NOBILITY OF THE AMERICAN LAWYER. 7 acceptance of a teaching chair at Harvard Law School. 13. Justice. Story's father was one of the “Indians” ...
THE NOBILITY OF THE AMERICAN LAWYER: THE ENNOBLING HISTORY, PHILOSOPHY, AND MORALITY OF A MALIGNED PROFESSION NELSON P. MILLER* “[W]hatever is true, whatever is noble, whatever is right, whatever is pure, whatever is lovely, whatever is admirable—if anything is excellent or praiseworthy—think about such things.” 1

I. INTRODUCTION OUR LEGAL EDUCATION FAILED US The above words—our legal education failed us—were spoken in earnest confession by a well-meaning, middle-aged lawyer who attended a special conference on legal ethics. It was not the ordinary ethics conference about rule amendments and the development and image of the profession, but a conference about foundational principles. Personal interaction with the speakers gradually revealed to the lawyer the way in which the culture of the legal profession had robbed his law career of nearly all meaning, and possibly robbed his clients of much of their own principle and self-determination. The lawyer’s legal education had taken him far from the profound and noble roots of the profession. The culture of law practice—so much a product of that education—had only set the lawyer further adrift. The lawyer, deeply chagrined at his loss and the loss to his clients, conveyed the impression of a professional life wasted. Still worse, that life now seemed beyond saving because it was built on such an inadequate foundation that dismantling and reconstructing it would take another lifetime. The night had taken the measure of this lawyer. How law school inculcates into students the history, philosophy, morals, and values—the culture—of the legal profession is controversial. Law school is controversial. The thesis of one of the * Nelson P. Miller is a Thomas M. Cooley Law School assistant dean and associate professor who has practiced and written about law since his graduation from the University of Michigan Law School in 1987. The author wishes to acknowledge and thank librarians Ardena Walsh and Jennifer Lunt for research assistance as well as the editors of the Thomas M. Cooley Law Review for their special contributions. 1. Philippians 4:8. The New International Version of the Bible is used throughout this paper unless otherwise noted.

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latest, and incidentally sympathetic, scholars to study and write indepth about law school concludes that its major accomplishment is to produce “an amoral, client-bound technician who employs an objectivist, discussion-closing rhetoric and dominating style” 2—that we are “amoral technical servants” of what we perceive to be our clients’ objectives. 3 Moreover, it is our methods that run the risk of stripping our clients’ lives of meaning even as we purport to serve our clients. Law school develops in its graduates the capability of employing purely instrumental analyses; the principle effect of which is to convert the profound, rich, and complex experiences of clients into “problems” for “resolution” by the use of a precise technical language. Indeed, it is written above that law school “inculcates” the culture of the legal profession because law schools do not really teach it. The traditional design of their curriculum— their hoary casebooks, and the habits of their professors—rather imbue it while it remains largely unexamined, almost accidental. And once graduates enter law practice, law firm culture and the general attitude of the bench and bar are certainly not, in the typical regime, the means by which to acquire a deeper sensitivity and understanding. The influence of the culture of the legal profession on practicing lawyers can barely be overestimated. Many of us are pure consumers of it, and made slave to its forms and conventions. Others of us have some sense of its presence and influence, and in some respects, stand apart from it and take it more as a challenge or suspect guide. But even for those who do stand apart to shape their own belief, rather than be shaped purely by legal culture, the expression of our belief still occurs through that culture—through more or less conventional legal language and conduct. Legal training, education, and beliefs are all shaped by the forms and constructs of law if not by its history, philosophy, morals, and values, even when their purpose is intended to be at odds in some respects with what that culture would otherwise dictate. Inevitably, law is practiced within certain constructs, conventions, and forms. Everywhere, there is a way of “doing” law practice. And no matter how much we may see ourselves as selfdetermined or determined by our chosen doctrines and norms, we are nonetheless influenced to an extraordinary degree by the culture of the law.

2. PHILIP C. KISSAM, THE DISCIPLINE MODERN LAWYERS 158 (2003). 3. Id. at 230.

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To know that one is in prison, one must first see the bars. We must recognize the cultural constructs within which we do our work before we can judge their fitness. Not every confinement is bad for us; many are good. But first we must see what confines us. This assertion must be true because one gets the sense that there is something fundamentally wrong with the culture of the legal profession—with the pervasive professional constructs that so influence the way in which lawyers make ordinary decisions in the practice of law. As one commentator recently put it, “We take up lawyer ethics because we have an unarticulated sense that something is wrong, that we are drifting, and being pulled by strong currents into dangerous waters.” 4 Arguably, law school professionalism programs are today where writing and clinical programs were twenty years ago: bucking institutional norms to meet the needs of law students and the legal profession. There seems something amiss with the conscious, but usually unexpressed, mental mechanisms with which many lawyers manage the trials and challenges, and even the rewards of law practice, and in the way in which lawyers counsel clients to manage their clients’ challenges and rewards. Yet, controversy over the goals and methods of ethics instruction tends to restrict it to the instrumental analysis of ethics rules within the typical law-school curriculum. 5 This Article is not about how to comply with the Model Rules of Professional Conduct 6—or with external legislation on ethics. The rules are too often an excuse for sharp practice rather than an ethical guide. This Article instead deals with the source, scope, and depth of ethical duty—about what Thomas Aquinas would call the internal acts. 7 Its goal is to first identify and then encourage within the reader an understanding of the historical, philosophical, and moral ethic that produces lawyers not of ordinary outward compliance, but rather of extraordinary inward commitment, in order to help the reader shape an inspired professional life worth living. That life is one in which law is practiced not for the lawyer but for the client, community, 4. James R. Elkins, Symptoms Exposed When Legalists Engage in Moral Discourse: Reflections on the Difficulties of Talking Ethics, 17 VT. L. REV. 353, 361 (1993). 5. See Ian Johnstone & Mary P. Treuthart, Doing the Right Thing: An Overview of Teaching Professional Responsibility, 41 J. LEGAL EDUC. 75 (1991). 6. See generally MODEL RULES OF PROF’L CONDUCT (2003). 7. See THOMAS AQUINAS, SUMMA THEOLOGICA, Q.91, at 25 (Regnery Publ’g 2001) (1263); THOMAS AQUINAS, SUMMA THEOLOGICA, Q.108, available at http://www.ccel.org/a/aquinas/summa/FS/FS108.html (last visited Oct. 28, 2005).

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justice system, and nation. This Article’s objective is to renew within lawyers the mental constructs and language of ethics with which they may serve clients in a manner that enlarges not only those clients’ lives but lawyers’ lives as well, while preserving and promoting the health and security of their communities and the nation. That said, if one must be convinced of a reason to be ethical, the point is in some respects already lost. It is precisely that sort of instrumental thinking (i.e., what’s in it for me?) that so readily defeats an ethical construct. Incentives merely make us better at calculating, when the world believes that lawyers are already too good at calculating. What we each need in order to have an operative ethical system is a clear understanding of first principles. As Immanuel Kant wrote long ago, [W]hy [is it] that moral instruction accomplishes so little, even though it contains so much that is convincing to reason [?] . . . But it is just that the teachers themselves have not purified their concepts: since they try to do too well by looking everywhere for motives for being morally good, they spoil the medicine by trying to make it really strong. For the most ordinary observation shows that when a righteous act is represented as being done with a steadfast soul and sundered from all view to any advantage in this or another world, and even under the greatest temptations of need or allurement, it far surpasses and eclipses any similar action that was in the least affected by any extraneous incentives; it elevates the soul and inspires the wish to be able to act in this way. Even moderately young children feel this impression, and duties should never be represented to them in any other way. 8

What do clients need from lawyers in the way of an ennobling ethic? Clients operate within their own ethical systems. They bring to their lawyers’ ethical issues, both real and imagined, for which they sometimes desire and often deserve their lawyers’ trained counsel. Indeed, clients will often ask whether a contemplated action is the right thing to do in a certain situation, notwithstanding that the law may fully permit that action. Clients often recognize their own ethical constraints and, moreover, want their lawyers to do so. Even when they do not, it can be within the lawyer’s proper place and role to point out ethical issues to the client. Clients who by ill-advised and unethical, although lawful, actions lose reputation within their social and professional communities would have the right to complain about 8. IMMANUEL KANT, GROUNDING FOR THE METAPHYSICS OF MORALS 22 n.2 (James W. Ellington trans., Hackett Publ’g Co. 3d ed. 1993) (1785).

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the performance of their lawyers who failed to counsel against those actions. Consider it as Aristotle put it: The true student of [law], too, is thought to have studied virtue above all things; for he wishes to make his fellow citizens good and obedient to the law . . . . By human virtue we mean not that of the body but that of the soul; and happiness also we call an activity of soul. But if this is so, clearly the student of [law] must know somehow the facts about soul, as the man who is to heal the eyes or the body as a whole must know about the eyes or the body; and all the more since [law] is more prized and better than medicine; but even among doctors the best educated spend much labour on acquiring knowledge of the body. The student of [law], then, must study the soul, and must study it with these objects in view, and do so just to the extent which is sufficient for the questions we are discussing; for further precision is perhaps something more laborious than our purposes require. 9

If studies showing the inordinately high rate of lawyer substance abuse, divorce, depression, and suicide 10 are correct, then there may be even more reason, in addition to service, for lawyers to understand their ennobling ethic: their own survival. The first line of defense to poor personal health and intemperance is having a proper foundational belief system. When doing so does not actually prevent personal disaster, it is likely to mitigate the consequences and speed recovery. Life, even for the lawyer, is much about balance and motivation. To mix metaphors—neither is possible without fulcrum and starting point. A rules-based approach to lawyer ethics, while necessary, carries with it an overriding problem: it aims too low. When one aims for a minimum, one too often achieves it. Ultimately, rules have little greater capacity than to condemn misconduct. Lost is the opportunity to shape a service life and profession. The most noble, profound, and important of the legal profession’s attributes are simply not a part of, or only tangentially taught in, the typical law school course on professional responsibility. By supplementing the traditional rules-based approach to professional responsibility with character-based education, the lawyer and law student activate the 9. ARISTOTLE, NICOMACHEAN ETHICS 347 (W.D. Ross trans. 1952). 10. See, e.g., G. Andrew H. Benjamin, et al., Comprehensive Lawyer Assistance Programs: Justification and Model, 16 LAW & PSYCHOL. REV. 113, 113-16 (1992) (observing that depression, alcoholism, or drug abuse affects one third of attorneys); Michael A. Bloom & Carol L. Wallinger, Lawyers and Alcoholism: Is It Time for a New Approach?, 61 TEMP. L. REV. 1409, 1413 (1988) (noting that alcoholism is substantially higher among professionals than other groups).

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vital part of the profession. With that meaning and purpose comes much relief from the potentially denigrating aspects of contemporary practice. Ethical practice is healthy practice, both professionally and personally. The challenge to train ethical lawyers has not only to do with serving the client and saving the professional; it also has to do with rescuing the profession. The public has an alarmingly low evaluation of the integrity not only of lawyers but even of judges. Given the conventional opinion holding lawyers in low esteem, there may even be a serious self-selection problem that students who would otherwise be attracted to law’s justice mission and intellectual challenges decline to enter law school because of the profession’s sullying image. There will always be lawyers. But a declining or low image can certainly impact the contours and regulation of the profession. Consider what former Cornell Law School Dean Roger Cramton wrote: I believe that a sense of calling is essential for law teachers and students. The search for truth, with all that implies concerning the meaningfulness of objective reality and the importance of the procedures by which we attempt to describe and talk about it, is a central commitment of the legal scholar. Is there not also a commitment, both for the law teacher and student, to search for the good? A renewed understanding of what it means to be a professional should include a commitment to something other than acquisition and success. If so, law schools have an educational responsibility to deal with the larger normative issues that infuse the application and use of legal technique. 11

Dean Cramton also wrote that a law school “has a broader function than a cooking institute, a barber college, or some other trade-oriented technical school” 12—and goodness, yes, let us hope so. Does it do too much to say that the health and welfare of the American democracy also depends on its lawyers knowing their ennobling ethic? To some it would not have. United States Supreme Court Justice Joseph Story made the following remarks on the nature and importance of legal education in 1829 upon the occasion of his

11. Roger C. Cramton, Beyond the Ordinary Religion, 37 J. LEGAL EDUC. 509, 511 (1987). See also Timothy W. Floyd, The Practice of Law as a Vocation or Calling, 66 FORDHAM L. REV. 1405 (1998); see also Arthur A. Leff, Unspeakable Ethics, Unnatural Law, 1979 DUKE L.J. 1229 (1979). 12. Cramton, supra note 12, at 510.

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acceptance of a teaching chair at Harvard Law School. 13 Justice Story’s father was one of the “Indians” who dumped the tea into Boston Harbor as the signal rallying point for the cause of independence. 14 His father’s politics and his own independence kept young Story out of the local public school, but he won a cherished seat at Harvard College on the strength of his independent studies—at a time when every Harvard student had to know ancient Hebrew and Greek before matriculation so that they could profitably study the Scriptures at Harvard. 15 President James Madison, one of the architects of the Constitution, appointed Justice Story to the Supreme Court bench in 1811, after Story had served as both a United States and Massachusetts congressman. 16 Justice Story remained on the bench until 1845, while also filling his teaching post at Harvard. 17 In his address to the Harvard Law School faculty, which he titled The Value and Importance of Legal Studies, Justice Story first encouraged that American citizens generally should study the law. 18 He pointed out, “Our government is emphatically a government of the people.” 19 Because our government is controlled by public opinion, “[i]ts whole security and efficiency depend upon the intelligence, virtue, independence, and moderation of the people.” 20 “I do not, therefore, overestimate its value, when I say, that a knowledge of the law and a devotion to its principles are vital to a republic, and lie at the very foundation of its strength.” 21 But Justice Story’s address was meant for the law student and lawyer, not the general public. And in that respect, he opined that lawyers must build “upon the soundest morals, the deepest principles, and the most exalted purity of life and character.” 22 Indeed, the lawyer must consider the profession itself as something noble: 13. JOSEPH STORY, LIFE AND LETTERS OF JOSEPH STORY 6-7 (William W. Story ed., Lawbook Exch. 2000) (1851). 14. JAMES MCCLELLAN, JOSEPH STORY AND THE AMERICAN CONSTITUTION 6 (Univ. of Okla. Press 1971). 15. Strangers to Us All: Lawyers and Poetry, at http://www.wvu.edu/~lawfac/jelkins/lp-2001/story.html (last visited Oct. 28, 2005). 16. Id. 17. Id. 18. Joseph Story, The Value and Importance of Legal Studies, in THE MISCELLANEOUS WRITINGS OF JOSEPH STORY 511 (William W. Story, ed., Lawbook Exch. Ltd. 2d ed. 2003) (1852). 19. Id. 20. Id. 21. Id. at 512. 22. Id. at 517.

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Let him consider it not as a mere means of subsistence, an affair of petty traffic and barter, a little round of manoeuvres and contrivances to arrest some runaway contract, to disinter some buried relic of title, or let loose some imprisoned wrong from the vengeance of the law. Let him not dream that all is well if he can weave an intricate net of special pleadings to catch the unwary in its meshes; or hang a doubt upon a subtile distinction; or quibble through the whole alphabet of sophisms. Let him not imagine that it is sufficient if he be the thing described by Cicero in his scorn; . . . “a sharp and cunning pettifogger; a retailer of lawsuits; a canter about forms, and a caviller upon words;”—or one of the tribe defined by a master-spirit of the last age, as the ministers of municipal litigation, and the fomenters of the war of village vexation. God forbid that any man standing in the temple and in the presence of the law, should imagine that her ministers are called to such unworthy offices. No. The profession has far higher aims and nobler purposes. 23

Justice Story believed passionately that to reach the profession’s higher purposes, the lawyer and law student must study philosophy, history, and human nature. “It is from the want of this enlarged view of duty, that the profession has sometimes been reproached with a sordid narrowness, with a low chicane, with a cunning avarice, and with a deficiency in liberal and enlightened policy.” 24 We must know the wisdom both of the moderns and of the ancients. 25 We must know “the dark and malignant passions” of our clients as much as their benevolence. 26 We must also “examine well the precepts of religion, as the only solid basis of civil society,” not only to know our duty but to realize our hopes and, as Justice Story puts it, our glory. 27 By knowing the profession’s history, philosophy, and morality, the lawyer “will thus be taught to distrust theory, and cling to practical good; to rely more upon experience than reasoning; more upon institutions than laws; more upon checks to vice than upon motives to virtue.” 28 Ennobled lawyers “will become more indulgent to human errors; more scrupulous in means, as well as in ends; more wise, more candid, more forgiving, more disinterested.” 29 Ultimately, if the lawyer shall happen to see the “melancholy infirmities” of humankind 23. 24. 25. 26. 27. 28. 29.

Id. at 518-19 (citations omitted). Id. at 527. Id. Id. Id. at 528. Id. Id.

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more and more so as to trust men less, yet through the study of noble ends the lawyer “may yet learn to love man more.” 30 Such is the hope of our profession: maligned, yes, but yet made noble in its aspirations by the study of man. Let us look together at the history, philosophy, and morality of those aspirations. II. HISTORY The trouble with history is picking a starting point. Though the legal profession’s philosophical and moral roots are much more ancient, the American lawyer’s history could be said to start with Hugo Grotius and Samuel Pufendorf. The playwright, poet, and legal scholar, Hugo Grotius (1583-1645), 31 is generally credited with originating the social contract theory of the state, articulating the natural law school of legal scholarship, and originating international law with his 1625 work On the Law of War and Peace. 32 Grotius was not an American; he was Dutch. 33 But his treatment of law became the pattern for American jurisprudence. 34 The Declaration of Independence and United States Constitution represent Grotius’s social contract theory, which asserts that states gain their authority from the consent of those whom they govern. 35 Samuel Pufendorf was a German legal scholar who built upon Grotius’s natural law writings. 36 Pufendorf was the first to hold a university chair in natural law. 37 The Declaration of Independence is a natural law document, showing the widespread influence of natural law on seventeenth and eighteenth century moral leaders including our Founding Fathers—an 30. Id. 31. Wikipedia, Hugo Grotius, at http://en.wikipedia.org/wiki/Hugo_Grotius (last modified Nov. 8, 2005). 32. See Warren Sandmann, The Argumentative Creation of Individual Liberty, 23 HASTINGS CONST. L.Q. 637, 644 (1996), (citing FEDERIC G. GALE, POLITICAL LITERACY: RHETORIC, IDEOLOGY, AND THE POSSIBILITY OF JUSTICE (1994)); Allen N. Sultan, Judicial Autonomy Under International Law, 21 U. DAYTON L. REV. 585, 615-16 (1996). 33. 5 THE NEW ENCYCLOPEDIA BRITANNICA 514 (15th ed. 2002). 34. See 5 id. at 514-15; see also FREDERIC G. GALE, POLITICAL LITERACY: RHETORIC, IDEOLOGY, AND THE POSSIBILITY OF JUSTICE 37-38 (1994) (describing how Grotius’s conception of natural law was one of the first to deviate from older legal philosophies). 35. Microsoft Encarta Online Encyclopedia (2005), Natural Law (ethics), at http://encarta.msn.com/text_761553008/Natural_Law_(ethics).html. 36. Id. 37. Id.

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influence which persisted throughout the nineteenth century. 38 The natural, moral law is no longer the dominant legal philosophy taught in most law schools today. Instead, law schools model instruction on a mix of positivist, relativist, realist, and materialist theories. 39 Yet, perhaps because our clients and the general populace are not quite ready to give up on the moral, natural, and traditional law, it remains central to our modern jurisprudence. 40 Today, lawyers should be able to identify the influence of natural law on cases, statutes, rules, and clients. Pufendorf, this first among law professors, wrote his fullest exposition of natural law in 1673 in On the Duty of Man and Citizen According to Natural Law. 41 In its preface, Pufendorf wrote that we derive our sense of duty from three sources: our own reason, the laws of the particular state in which we live, and the morality we are taught by convention. 42 We then use different methods to determine those three different duties: reason tells us what is necessary to get along with one another socially; law tells us what the state requires of us; and morality is determined by revelation, 43 which for the majority of American Christians—including lawyers—means biblical precepts. These sources, incidentally, are the same sources our lay clients would recognize. Surely as lawyers, we ought not to give less regard to them than would our clients. Moreover, we ought to interpret the three sources of duty consistently. Pufendorf then explained that to understand these duties, we must understand that human actions are chosen by our will, which is guided by our knowledge and reason: Man has in fact been granted the power not only of knowing the different things which he meets in this universe, of comparing them and of forming new notions in regard to them, but also the ability to foresee what he is going to do, to bestir himself to accomplish it, to shape it to a certain norm and a certain end, and

38. See generally Wikipedia, Declaration of Independence, at http://en.wikipedia.org/wiki/Declaration_of_Independence_(United_States) (last modified Oct. 28, 2005). 39. See LEGAL INFORMATION INSTITUTE, JURISPRUDENCE: AN OVERVIEW, at http://www.law.cornell.edu/topics/jurisprudence.html (last visited Oct. 14, 2005). 40. See Russell Hittinger, Natural Law as “Law” Reflections on the Occasion of “Veritatis Splendor,” 39 AM. J. JURIS. 1, 1 (1994). 41. SAMUEL VON PUFENDORF, DE OFFICIO HOMINIS ET CIVIS JUXTA LEGEM NATURALEM LIBRI DUO (Frank G. Moore trans., Oxford Univ. Press 1927) (1673). 42. See 2 id, at VIII. 43. See 2 id.

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to infer what the result will be; and further, to judge whether things already done conform to rule. 44

Pufendorf continued that only a few of us are guided by a right conscience, having the ability to give sound reasons for our actions. 45 Most of us act according to the general tenor of community life without being able to justify our actions. We ought to suspend action when unable to decide which course is the right action. 46 Pufendorf says that in other cases, when we know the right course, it is our nature that we have the will to choose that course, either as an end in itself or as the means of accomplishing other chosen ends. 47 One’s responsibility to the law and to others depends on that freedom to act, for where there is no freedom to choose, there is no responsibility to choose rightly. Pufendorf then explains that the fixed norm to which we refer when choosing actions is what he means by law in the broadest sense. 48 Pufendorf contends that the particular norms, or laws, that make us behave civilly toward one another to promote our mutual interests are called “natural laws.” 49 Pufendorf thus states the most general law from which all others flow as corollaries: “that every man must cherish and maintain sociability, so far as in him lies.” 50 The requirements of this most natural law—without which society cannot exist—are learned through experience applying our reason, and thus become “written in the hearts” of men. 51 From this beginning, Pufendorf worked out the general obligations of one to another in tort law, contract law, family law, international law, and other legal fields, in substantially the same form we follow them today. Here, then, one sees the noble tenor of the Renaissance legal scholar who could be considered the law teacher of America’s Founding Fathers. When digesting the natural law scholarship of Grotius and Pufendorf, America’s Founding Fathers had the great help of England’s law chronicler William Blackstone and his Commentaries on the Laws of England written between 1765 and 1768. 52 In the 44. 2 id. bk. I, ch. 1, ¶ 3, at 3. 45. 2 id. ch. 1, ¶ 5-6, at 4. 46. 2 id. ¶ 6. 47. 2 id. ¶ 9, at 5. 48. 2 id. ch. 2, ¶ 1-2, at 12. 49. 2 id. ch. 3, ¶ 1-2, 8, at 17, 19. 50. 2 id. ¶ 9, at 19. 51. 2 id. ¶ 12, at 20 (quoting Romans 2:15). 52. WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (Univ. of Chi. Press 1979) (1765).

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Commentaries, Blackstone defined law as a rule of action, but made it clearer perhaps than Pufendorf had, that law “is prescribed by some superior” and thus that “the inferior is bound to obey.” 53 “Thus when the supreme being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be.” 54 It is man’s free will which permits him to depart from those natural laws, where inanimate and unthinking animate objects could not depart. Because it is by our created will that we depart from the creator’s laws, we should exercise our created reason in doing so to follow the will of the creator. We should not follow our own rule contrary to the creator, precisely because of that relationship of created to creator. In the same section, Blackstone summarized: This will of his maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws. 55

Blackstone says we should follow those laws of nature, not only because of the order of superior to inferior, but because the laws of the creator are founded in justice and are, therefore, good for us. 56 In other words, it is both our end to follow our creator’s will and our means of obtaining that happiness which might distract us. These “eternal, immutable laws of good and evil[,]” which also guide “the creator himself in all his dispensations,” we discover by the use of human reason. 57 For example, at root they include “that we should live honestly, should hurt nobody, and should render to every one it’s due.” 58 There is thus nothing particularly mystical about good and evil. Rather, they are prosaic terms used to describe those actions which our reason teaches us are fitting or not fitting for human interaction. Interestingly, Blackstone attributed our self-love as a gift of the creator to induce us to inquire after these laws of reason. 53. 54. 55. 56. 57. 58.

Id. at Introd., § 2 at 38. Id. Id. at 39-40. Id. Id. at 40. Id.

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Blackstone was thus able to take the maxim “that man should . . . pursue his own happiness” as “the foundation of what we call ethics, or natural law.” 59 A significant problem, however, is that man’s “reason is corrupt, and his understanding full of ignorance and error,” which requires that we have moral principles as revealed truth—fully consistent with natural law—to further guide our reason. 60 Happiness, in other words, is obtained by following natural and revealed law rather than by its direct pursuit through corrupted human reason. All law rests on these two foundations of the law of nature and the law of revelation, so that “no human laws should be suffered to contradict these.” 61 Thus, law is inextricably interwoven with personal and professional ethics, as well as with revealed and reasoned truth. Consider then the extent to which the natural law and revealed truth of Grotius, Pufendorf, Blackstone, and others made their way into the Declaration of Independence, as the noble foundation of law and government for American lawyers. 62 The Declaration states that when “it becomes necessary for one people to dissolve the political bands which have connected them with another,” those people declaring their independence will be assuming “among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them.” 63 In so stating, the Founders were unmistakably embracing the natural law (the Laws of Nature) and revealed truth (the Laws of Nature’s God) described by Pufendorf and Blackstone. “We hold these truths to be self-evident,” the Declaration continues in the same vein, “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” 64 After its famous list of grievances, the Declaration concluded by returning to its natural law theme that the Founders were “appealing to the Supreme Judge of the world” to measure “the rectitude of our

59. Id. at 41. 60. Id. 61. Id. at 42. 62. See generally Louis R. Beres, Prosecuting Iraqi Gulf War Crimes: Allied and Israeli Rights Under International Law, 16 HASTINGS INTL. & COMP. L. REV. 41, 48 (1992) (“When Jefferson set to draft the Declaration of Independence, he drew freely upon Aristotle, Cicero, Grotius, Vattel, Pufendorf, Burlamaqui, and Locke’s Second Treatise of Government.”). 63. THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776). 64. Id. at para. 2.

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intentions” 65 because, according Blackstone, no action nor law of man should stand unless it is consistent with revealed and reasoned truth. Indeed, the entire Declaration, which first created our national government, stands not only on the Founders’ pledge of their “Lives,” “Fortunes,” and “sacred Honor,” but on “the Protection of Divine Providence” as well, 66 for so were we constituted a sacred nation. Thomas Jefferson intended that the Declaration of Independence, which he authored, not be original in principle but be distinct as an American expression. 67 Its key phrases were hardly original. Centuries earlier, Thomas Aquinas had written that the principles of the natural law “are self-evident” 68—a phrase echoed by Jefferson in the Declaration. 69 The Founders were setting signposts indicating the noble path they expected the nation, and particularly the nation’s lawyers, to follow. Abraham Lincoln believed that the purpose of the United States Constitution was to guarantee the Declaration’s natural rights. 70 Indeed, Lincoln drew from the Declaration of Independence his understanding of the workings of law, as he expressed in Philadelphia’s Independence Hall on February 22, 1861: All the political sentiments I entertain have been drawn, so far as I have been able to draw them, from the sentiments which originated, and were given to the world from this hall [Independence Hall] in which we stand. I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence. . . . I have often inquired of myself, what great principle or idea it was that kept this Confederacy so long together. It was not the mere matter of the separation of the colonies from the mother land; but something in that Declaration giving liberty, not alone to the people of this country, but hope to the world for all future time. 65. Id. at para. 32. 66. Id. 67. James A. Gardner, Consent, Legitimacy and Elections: Implementing Popular Sovereignty Under the Lockean Constitution, 52 U. PITT. L. REV. 189, 207 n.63 (1990) (quoting THE LIFE AND SELECTED WRITINGS OF THOMAS JEFFERSON 719 (A. Koch and W. Peden 1st ed. 1944)). 68. THOMAS AQUINAS, SUMMA THEOLOGICA, Q.94, at 58 (Regnery Publ’g 2001) (1263). 69. See GARY T. AMOS, DEFENDING THE DECLARATION: HOW THE BIBLE AND CHRISTIANITY INFLUENCED THE WRITING OF THE DECLARATION OF INDEPENDENCE 75 (Wolgemuth & Hyatt, Publishers, Inc. 1989). 70. See ABRAHAM LINCOLN, The Declaration of Independence, in THE COMPLETE LINCOLN-DOUGLAS DEBATES OF 1858 117 (Univ. of Chi. Press 1958).

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It was that which gave promise that in due time the weights should be lifted from the shoulders of all men, and that all should have an equal chance. This is the sentiment embodied in that Declaration of Independence. 71

But when considering the lawyer Lincoln’s motivation, we are getting ahead of ourselves. First, hear the noble wisdom of George Washington in his September 17, 1796, farewell address. 72 Washington’s first caution was that in order to preserve not only our government but also our personal happiness, we must “resist with care the spirit of innovation upon its principles, however specious the pretexts.” 73 Evidently, to Washington the philosophical and moral principles on which the nation was founded were worth treasuring. Indeed, we should be cautious in our thinking, especially with respect to the Constitution, “avoiding in the exercise of the powers of one department to encroach upon another.” 74 “[F]or though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” 75 Moreover, “religion and morality are indispensable supports” 76 of our prosperity: A volume could not trace all their connections with private and public felicity. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle. 77

Washington deigned that he “dare not hope” that his counsel would long be followed, for such is the usual “destiny of nations” not to adequately regard the principles on which they were founded. 78 He knew that we would abandon his counsel and the counsel of the 71. GEORGE ANASTAPLO, ABRAHAM LINCOLN: A CONSTITUTIONAL BIOGRAPHY 11 (1999) (Rowman & Littlefield 1999) (quoting 3 THE COLLECTED WORKS OF ABRAHAM LINCOLN 240 (Roy P. Basler ed. 1953)). 72. S. DOC. NO. 106-21, 106th Con. (2d Sess. 2000). 73. Id. at 15. 74. Id. at 18. 75. Id. at 19. 76. Id. at 20. 77. Id. 78. Id. at 29.

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ancients, though perhaps he did not foresee how forthrightly we would adopt the antithesis of his caution principle. 79 Blackstone, Jefferson, and Washington’s confidence that, at least for a time, American lawyers would embrace and revere their forebears’ ennobling philosophy and morality was initially well placed. Indeed, the respected New York judge and legal writer James Kent came to be known, primarily through his 1826 Commentaries on American Law, 80 as “America’s Blackstone” during a time when America’s own jurisprudence was taking shape. 81 Judge Kent embraced for the fledgling American legal community Grotius’s and Pufendorf’s natural law. “The law of nature,” Judge Kent began in his Commentaries, “by the obligations of which individuals and states are bound, is identical with the will of God, and that will is ascertained . . . either by consulting Divine revelation, where that is declaratory, or by the application of human reason, where revelation is silent.” 82 Judge Kent felt that we should regard the Founders’ Christianity as an authoritative, even if general, expression of natural law, for “Christianity reveals to us a general system of morality, but the application to the details of practice is left to be discovered by human reason.” 83 Judge Kent knew of and admired the Roman lawyer Cicero, who “was struck with extreme disgust, at the excesses in which his countrymen indulged their military spirit” and who produced “one of the most beautiful and perfect ethical codes” exhibiting “the virtues of humanity, liberality, and justice, towards other people, as being founded in the universal law of nature.” 84 But it was the “influence of Christianity [that] was very efficient towards the introduction of a better and more enlightened sense of right and justice among the governments of Europe,” for it taught kindness to strangers, humanity to the conquered, good faith to all, and personal accountability for murder and revenge, while ameliorating, through

79. See Roper v. Simmons, 125 S.Ct. 1183, 1190 (2005) (“we have established the propriety and affirmed the necessity of referring to ‘evolving standards of decency which mark the progress of a maturing society’”) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). 80. JAMES KENT, COMMENTARIES ON AMERICAN LAW, pt. I, Lecture I, available at http://www.constitution.org/jk/jk_001.htm (last visited Oct. 28, 2005). 81. See, e.g., Herbert W. Titus, God’s Revelation: Foundation for the Common Law, 4 REGENT U. L. REV. 1, 18 (1994). 82. KENT, supra note 81. 83. Id. 84. JAMES KENT, COMMENTARIES ON AMERICAN LAW 6-7 (1826).

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the influence of papal authority, the fierce territorial disputes between principalities. 85 At this point it is worth returning briefly again to Justice Joseph Story, for it was just three years after Judge Kent’s 1826 Commentaries that Justice Story made his address to the Harvard faculty on The Value and Importance of Legal Studies. 86 Still sitting on the Supreme Court bench while accepting his teaching post at Harvard, Justice Story considered it his duty to instruct law students as to “the Law of Nature, the Law of Nations, Maritime and Commercial Law, Equity Law, and, lastly, the Constitutional Law of the United States.” 87 As to the first subject, Justice Story knew that the law of nature or natural law “lies at the foundation of all other laws, and constitutes the first step in the science of jurisprudence.” 88 This law, made up of the rules deduced by human reason to form man’s character and guide man’s conduct so as to ensure the greatest degree of happiness, was “in the largest sense, the philosophy of morals.” 89 In this manner it is that the law of nature involves a consideration of the nature, faculties, and responsibilities of man. From his intellectual powers, and the freedom of his will, it deduces his moral perceptions and accountability. From his love of happiness, as the end and aim of his being, it deduces the duty of preserving that happiness. From his dependence upon the Supreme Being, whose will has indissolubly connected virtue with happiness, it deduces the primary duty of obedience to that will. From these simple elements, it proceeds to consider him in the various relations of life, in which he may be placed, and ascertains in each his obligations and duties. It considers him as a solitary being, as a member of a family, as a parent, and lastly, as a member of the commonwealth. 90

It is obvious from Justice Story’s Supreme Court appointment and, moreover, his elevation to the faculty of Harvard Law School, as well as from his choice to speak about it at his elevation, the natural moral law made it beyond the Declaration of Independence and into the heart and soul of the American legal profession. So it was, that in

85. 86. 87. 88. 89. 90.

Id. at 10. Story, supra note 19. Id. at 533. Id. Id. at 534. Id. at 535.

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the early years of this nation, morality and the natural law were regarded as ennobling. The French commentator Alexis de Tocqueville confirmed more broadly in America’s popular culture much of what Kent was chronicling within the legal field in the early years of America. In the 1840 Volume II of his celebrated Democracy in America, 91 de Tocqueville noted Americans’ ignorance of the various European philosophical schools but their unity of philosophical method: “almost all the inhabitants of the United States use their minds in the same manner, and direct them according to the same rules; that is to say, without ever having taken the trouble to define the rules, they have a philosophical method common to the whole people.” 92 To de Tocqueville, that method was one of a practical mind ready to change former laws, but not Christian beliefs and moral truths, which remained believed without discussion and unshaken. 93 De Tocqueville noted Americans’ ready belief in the fallibility but perfectibility of man 94 and acknowledged Americans’ acceptance of the selfless “truth that man serves himself in serving his fellowcreatures, and that his private interest is to do good.” 95 Americans “maintain that virtue is useful, and prove it every day.” 96 Ultimately, Americans have found out that in their country and their age man is brought home to himself by an irresistible force; and losing all hope of stopping that force, they turn all their thoughts to the direction of it. They therefore do not deny that every man may follow his own interest; but they endeavor to prove that it is the interest of every man to be virtuous. 97

Who better than Abraham Lincoln to carry forward the American lawyer’s torch of nobility? Thousands turned out to hear President Lincoln’s 1865 second inaugural address, though he gave it after a month of rain in a sea of mud. 98 The address came after the outcome 91. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (Alfred A. Knopf ed., 1980) (1840). 92. Id. at 3. 93. Id. at 6. 94. Id. at 33-34. 95. ALEXIS DE TOCQUEVILLE, II DEMOCRACY IN AMERICA ch. VIII, available at http://www.gutenberg.org/dirs/etext97/2dina10.txt (last visited Oct. 14, 2005). 96. Id. 97. Id. 98. See MARIO M. CUOMO & HAROLD HOLZER, EDS., LINCOLN ON DEMOCRACY 340 (1990).

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of the great Civil War was already decided. 99 His purpose in speaking must have been to reunite philosophically the fractured but surviving nation—to call to our nobility, so as to look beyond that which would divide us. To do so, President Lincoln had to first admit the cause of the division: slavery. Moreover, he also had to draw meaning and solace from the horrible conflict just concluded in a manner that could not be read by North or South as the arrogant celebration of a victor. President Lincoln accomplished this noble feat by an act of humility that an American leader today might scarcely attempt—by acknowledging the unfathomable debt America owed for her slavery to the great God who had created us: Both [North and South] read the same Bible, and pray to the same God; and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces; but let us judge not, that we be not judged. The prayers of both could not be answered—that of neither has been answered fully. The Almighty has His own purposes. “Woe unto the world because of offenses! for it must needs be that offenses come; but woe to that man by whom the offense cometh.” If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, he now wills to remove, and that he gives to both North and South this terrible war, as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said, “The judgments of the Lord are true and righteous altogether.” With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle and for his widow, and his

99. See id. at 340-41.

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orphan—to do all which may achieve and cherish a just and lasting peace among ourselves, and with all nations. 100

John Wilkes Booth assassinated President Lincoln just over a month later, 101 but Lincoln’s noble, natural, and moral ideals for the nation and the nation’s law and lawyers lived on. The nation’s leading lawyer, jurist, and legal writer in the post-Civil War era was almost certainly Justice Thomas M. Cooley. Justice Cooley was an American for the time, just as were Presidents Washington, Jefferson, and Lincoln before him. Though his trust in the common man and distrust for elitism easily marked him as a Jacksonian Democrat, he was yet sufficiently apolitical in his aspirations for the nation that he rose by merit and acclaim, rather than by connections. 102 Among other accomplishments, Justice Cooley wrote leading treatises for lawyers and law students on tort law, constitutional law, and taxation; was for many years the Michigan Supreme Court’s chief justice at a time when it was regarded as the best appellate court in the nation; was elected American Bar Association president; and is credited by some as inventing administrative law. 103 He also, like Judge James Kent half a century before him, annotated and rewrote an edition of Blackstone’s Commentaries under the title Cooley’s Blackstone. 104 Justice Cooley made suggestions for the study of law which reflect the enduring nobility of the profession. 105 Justice Cooley’s suggestions included that students should understand the bounds of law and government—that just because 100. WILLIAM O. DOUGLAS, MR. LINCOLN & THE NEGROES: THE LONG ROAD TO EQUALITY 122-23 (Atheneum 1963). 101. CUOMO, supra note 95, at 340, 388. 102. PAUL D. CARRINGTON, STEWARDS OF DEMOCRACY: LAW AS A PUBLIC PROFESSION 31, 40-42 (1999). 103. Paul D. Carrington, Law and Economics in the Creation of Federal Administrative Law: Thomas Cooley, Elder to the Republic, 83 IOWA L. REV. 363, 384-85 (1998); Paul D. Carrington, Law as “The Common Thoughts of Men”: The Law-Teaching and Judging of Thomas McIntyre Cooley, 49 STANFORD L. REV. 495, 496-97 (1997) [hereinafter The Common Thoughts of Men]; see also HENRY J. FRIENDLY, THE FEDERAL ADMINISTRATIVE AGENCIES: THE NEED FOR BETTER DEFINITION OF STANDARDS 29, 31 (1962) ( illustrating the value of a Justice Thomas M. Cooley administrative opinion). 104. THOMAS M. COOLEY, I COOLEY’S BLACKSTONE (Callaghan & Co. 4th ed. 1899). 105. WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND x (James D. Andrews, 4th ed. 1899) (citing to the preface written by Thomas M. Cooley).

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government may have the power to act, we should not assume that it has the authority to do so. 106 Government has only the powers we delegate to it, and those powers must always be delegated rationally— not arbitrarily. 107 No more is it true that governments govern solely by will of the majority. Rather, “the majority is curbed and controlled to restrain passion and prevent injustice” to even so few as a single individual, because government originates in both divinity and the social compact. 108 Even when legislatures convene, The law of God precedes their action; the immutable principles of right and justice are over and about them and cannot rightfully be ignored; the life and the liberty of the individual and the fruits of his labor are not more sacred after they have been declared by a written law to be inviolable than they were before; and the legitimate province of constitutions is to furnish them with due and adequate protection instead of providing the means whereby the individual may be robbed by the organized society he enters, of either or all. 109

Justice Cooley ended his exhortation to the law student by quoting Burke’s denunciation of arbitrary power in the trial of Warren Hastings: [A]rbitrary power is a thing which neither any man can hold nor any man can give. No man can lawfully govern himself according to his own will; much less can one person be governed by the will of another. We are all born in subjection, all born equally, high and low, governors and governed, in subjection to one great, immutable, pre-existent law, prior to all our devices, and prior to all our contrivances, paramount to all our ideas and all our sensations, antecedent to our very existence, by which we are knit and connected in the eternal frame of the universe, out of which we cannot stir. This great law does not arise from our conventions or compacts; on the contrary it gives to our conventions and compacts all the force and sanction they can have. It does not arise from our vain institutions. Every good gift is of God; and he who has given the power, and from whom alone it originates, will never suffer the exercise of it to be practiced upon any less solid foundation than the power itself. 110 106. Id. at ix. 107. Id. 108. Id. 109. Id. at x. 110. Id. at x (quoting Edmund Burke, Speech in Opening the Impeachment of Warren Hastings (Feb. 16, 1788), in 9 WORKS 396, 455).

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Justice Cooley thus connected the natural law concept that individual persons can and must make ethical judgments of right from wrong with the founding American political theory that power resides—first and foremost—with a virtuous people who cede only a portion of that power to the government. And yet in doing so, he also discounted our individual ability to govern ourselves without a guiding morality, as natural law and experience also teach us. It was precisely here, at the end of Justice Cooley’s distinguished career, that the profession’s nobility took a detour. Justice Oliver Wendell Holmes wrote The Path of the Law 111 in 1897 in which he traced a path that was unlike the noble path Justice Cooley had seen and had in many respects represented. In The Path of the Law, Justice Holmes restated his materialist, might-makes-right view of the law which came to dominate the law in the twentieth century. “The reason why [law] is a profession,” Justice Holmes argued, “is that in societies like ours the command of the public force is [e]ntrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees.” 112 To Justice Holmes, it was judges who made law backed by the force of the state, not citizens and lawyers on whose hearts a natural law was written. In fact, Justice Holmes described the lawyer’s ignoble profession as one in which the lawyer’s job was “to find out when this danger [of judicial force] is to be feared”—to predict “the incidence of the public force through the instrumentality of the courts.” 113 Justice Holmes also made clear just what had changed the lawyer’s role from noble to ignoble since the time of President Washington’s caution not to accept new theories that upset the constitutional balance. Predicting judges’ behavior seemed an appropriate lawyer role to Justice Holmes because he felt that people no longer acted through the legislatures, but instead “look to the courts as expounders of the Constitutions, and that in some courts new principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance” by the people for their social advantage. 114 Justice Holmes did not know—in fact, no one knows—where these judge-made principles will lead us. But Justice Holmes wrote that he was sure that “[w]e are only at the beginning of a philosophical reaction” that will lead us to “the ideal 111. OLIVER WENDELL HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 167 (1952). 112. Id. 113. Id. 114. Id. at 184.

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toward which [the law] tends.” 115 Waxing a nearly mystical ideal against which his realism ought to have warned him, Justice Holmes asserted, “It is perfectly natural and right that it should have been so” that the law develop like “a plant, each generation taking the inevitable next step” toward a higher, if yet unimagined, form. 116 Despite his claim to a purely pragmatic, amoral, material view of the law, Justice Holmes, in The Path of the Law, was like other ostensibly pragmatic writers, quick to claim a true pursuit of a moral high ground of right and good and to describe his moral adversaries as evil. For instance, Justice Holmes not only claimed to be right that there is no transcendent truth other than the material force of the law—that is, to judge that he is right and not wrong that there is no right or wrong—but moreover, expressly attributed “evil effects” to his opponents’ “confusion between legal and moral ideas.” 117 In other words, Justice Holmes judged purportedly lesser men as evil for their even having conceived of good and evil. For example, Justice Holmes admitted that the practice of law “tends to make good citizens and good men.” 118 He even admitted the possibility, without endorsing the fact, that there is “a wider point of view” at which law and morality coalesce. 119 Yet, Justice Holmes wrote that a legal duty is nothing more than a lower order “prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court.” 120 Justice Holmes believed that law was not the ennobling ideal others saw in it; instead, it was “for men who want to use it as the instrument of their business” for their own purposes. 121 Justice Holmes desired most of all that lawyers disconnect themselves from morality—to destroy their morality and faith. Justice Holmes urged those who study the law to “imagine yourselves indifferent to other and greater things” 122 and to view the law “as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.” 123 Justice Holmes wrote that he 115. 116. 117. 118. 119. 120. 121. 122. 123.

Id. at 185. Id. Id. at 168. Id. at 170. Id. Id. at 169. Id. Id. at 170. Id. at 171.

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wanted to know only “[t]he prophecies of what the courts will do in fact, and nothing more pretentious,” 124 because law to Holmes is purely about consequences, and not about means, moral duties, or rights. Justice Holmes added that he would have us “wash” the concept of duty “with cynical acid and expel everything except” those considerations of the consequences to the bad man should a judge wish or not wish to sanction him. 125 The promise to perform a contract should mean nothing more to a man than whether he will be sanctioned if he does not keep it. 126 Justice Holmes wrote, “The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it—and nothing else.” 127 Only where imprisonment is threatened should a man keep a contract rather than breach it. 128 Not surprisingly, Justice Holmes wrote that he wished to discourage study of the “many obvious doubts and questions which are suggested by these general views” of an amoral society. 129 To Justice Holmes, it was “not the time to work out a theory in detail, or to answer” those doubts and questions. 130 Perhaps knowing that his assertions would not bear historical scrutiny, he urged that we not look to “the fossil records” of history. 131 Or, if we should happen to look to history, Justice Holmes wrote that it should only be “the first step toward an enlightened skepticism, that is, towards a deliberate reconsideration of the worth of those rules” rather than their “blind imitation.” 132 Justice Holmes recognized “the majesty got from ethical associations” but urged that we follow no such majesty. 133 Nor would Justice Holmes have had us follow, as a “fallacy,” the sure use of logic in the law. 134 Justice Holmes did not want us to listen to our elders, or to read their revered writings: “The way to gain a liberal view of your subject is not to read something else, but to get to the bottom of the subject itself.” 135 Justice Holmes would prefer that we simply accept his “series of hints to throw some light on the 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135.

Id. at 173. Id. at 174. Id. at 175. Id. See id. at 175-76. Id. at 178. Id. Id. at 179. Id. at 186-87. Id. at 179. Id. at 180. Id. at 197-98.

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narrow path of legal doctrine” that he would have us follow, in which “every word of moral significance could be banished from the law altogether” in favor of amoral constructs. 136 In sum, Justice Holmes did not want us to walk by the light of history and reason, but along his unexamined path of semi-darkness. Indeed, it did not matter to Justice Holmes whether his own amoral constructs came from “an emperor with despotic power and a whimsical turn of mind,” 137— perhaps meaning the devil. Or perhaps Justice Holmes meant not the devil, but the individual. Ultimately, Justice Holmes seems to have preached a similar end as other humanist legal scholars. At the end of his very long writing career, Holmes concluded his address on The Path of the Law with the same traditional and transcendent objectives, although he added a humanistic twist worthy of this age. “We cannot all be Descartes or Kant,” he concluded, “but we all want happiness.” 138 Yet, Justice Holmes admitted, happiness does not come from the material prosperity of “being counsel for great corporations and having an income of fifty thousand dollars.” 139 Rather, “[t]he remoter and more general aspects of the law are those which give it universal interest.” 140 And here was Justice Holmes’s final concession to the eternal and transcendent ends which he seemed to have fought right up to his last published moment: “It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.” 141 It was not quite the recognition of the universal ethic which—indeed, the universally good creator who—Holmes’s ancestors and peers would have acknowledged. For Justice Holmes was calling men to greatness (the humanistic end) rather than to acknowledgment of the great (the moral end). But it was, at the least, a very non-material call to the ennobling transcendent. Justice Cooley was acutely aware of both Holmes’s detour and its perils. Justice Holmes was Justice Cooley’s antagonist in some respects. The “Boston Brahmin” Justice Holmes 142 represented much 136. Id. at 178-79. 137. Id. at 179. 138. Id. at 202. 139. Id. 140. Id. 141. Id. 142. See generally Wikipedia, Boston Brahmin, at http://en.wikipedia.org/wiki/Boston_Brahmin (last modified Oct. 7, 2005) (defining

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that the common man Cooley did not. That difference was seldom more pronounced than in November 1886, on Harvard’s 250th anniversary, when the university awarded an honorary doctorate to Justice Cooley. 143 Justice Cooley took the occasion to gently criticize the new technocratic, elitist professional model Harvard was creating for law students and lawyers. 144 Justice Holmes was probably right that the business interests then rising in the industrializing nation would gain if the nation’s lawyers saw themselves as amoral technocrats. Cooley perhaps foresaw that amoral technocratic lawyers would serve the nation less well in the much longer run, such as in today’s post-industrial society. When Justice Cooley spoke at the occasion, along with Harvard’s Dean Langdell and Justice Holmes, he warned of the consequences of the departure from the legal profession’s nobility: [W]e fail to appreciate the dignity of our profession if we look for it either in profundity of learning or in forensic triumphs. . . . [I]ts reason for being must be found in the effective aid it renders to justice, and in the sense it gives of public security through its steady support of public order. These are commonplaces, but the strength of the law lies in its commonplace character; and it becomes feeble and untrustworthy when it expresses something different from the common thoughts of men. 145

Thus, Justice Cooley reached firmly back to the natural, moral, and democratic roots of the profession, and steered firmly clear of Justice Holmes’ view that law, as force in the hands of brilliant men, might engineer a new society of mentally and genetically greater individuals. 146 Cooley’s view certainly represented the prevailing professional norm that law served the common man and not an amoral class or social enterprise. But the contrary view of Justice Holmes, who was then still a relatively unknown Massachusetts Supreme Court judge 147 and Dean Langdell, who was then introducing the casebook method of legal instruction, would prevail. 148 By the late “Boston Brahmin” as blue-blooded class of Anglo-Saxon protestants who originally settled New England). 143. The Common Thoughts of Men, supra note 104. 144. Id. at 499. 145. Id. 146. See id. at 495. 147. 6 THE NEW ENCYCLOPEDIA BRITANNICA 12 (15th ed. 2002). 148. 7 THE NEW ENCYCLOPEDIA BRITANNICA 143 (15th ed. 2002).

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1920s and for the balance of the twentieth century, law and the legal profession would be dominated by Justice Holmes’ ethic, in revolt against the concepts of right, wrong, and values. 149 Justice Holmes attacked the natural, moral law with the intent of replacing it 150 with his own might-makes-right jurisprudence. 151 Justice Holmes, though, was not thoroughly successful. 152 Some lawyers and legal writers today adhere to the professional norms and constructs of Washington, Story, Lincoln, and Cooley—even of Grotius, Pufendorf, and Blackstone. 153 Robert George, Mary Ann Glendon, and others hold university chairs and presidential appointments on the basis of their scholarly moral and natural law teachings and writings. 154 They have developed a body of scholarly literature and found a way to describe the modern legal professional, which continues to ennoble rather than denigrate the American lawyer. 155 John Finnis, another natural law scholar, summarizes what 149. See generally ALBERT W. ALSCHULER, LAW WITHOUT VALUES: THE LIFE, WORK, AND LEGACY OF JUSTICE HOLMES (Univ. of Chi. Press 2000); see also Michael P. Schutt, Oliver Wendell Holmes and the Decline of the American Lawyer: Social Engineering, Religion, and the Search for Professional Identity, 30 RUTGERS L.J. 143 (1998). 150. See MICHAEL H. HOFFHEIMER, JUSTICE HOLMES AND THE NATURAL LAW 11-13 (1992). 151. See, e.g., Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909) (“Law is a statement of the circumstances in which the public force will be brought to bear upon men through the courts.”). 152. See, e.g., Mathias Reimann, Horrible Holmes, 100 MICH. L. REV. 1676, 1677 (2002) (“[T]he troublesome implications of a jurisprudence so skeptical of moral values that it reduces law to its instrumental function”) (reviewing ALBERT W. ALSCHULER, LAW WITHOUT VALUES: THE LIFE, WORK, AND LEGACY OF JUSTICE HOLMES (Univ. of Chi. Press 2000)). 153. See, e.g., Jide Nzelibe, The Uniqueness of Foreign Affairs, 89 IOWA L. REV. 941, 977-78 (2004); Adam Mossoff, What Is Property? Putting the Pieces Back Together, 45 ARIZ. L. REV. 371, 378 (2003); Joel Brandon Moore, The Natural Law Basis of Legal Obligation: International Antitrust and OPEC in Context, 36 VAND. J. TRANSNAT’L L. 243, 274-75 (2003); Douglas G. Smith, A Lockean Analysis of Section One of the Fourteenth Amendment, 25 HARV. J.L. & PUB. POL’Y 1095, 1169 (2002). 154. M. Cathleen Kaveny, Rhetoric, Public Reason and Bioethics: The President’s Council on Bioethics and Human Cloning, 20 J.L. & POL. 489, 491-92 n.7 (2004) (identifying Glendon and George as members of President’s Council). 155. See Mary Ann Glendon, Diaries of a Forgotten Framer, 14 HARV. HUM. RTS. J. 277 (2001) (reviewing the work of one of the twentieth century’s most influential international lawyers); Mary Ann Glendon, Foundations of Human Rights: The Unfinished Business, 44 AM. J. JURIS. 1 (1999) (calling for statespersons to finish the important work of giving foundation to the United Nations 1948 Universal Declaration of Human Rights); Robert P. George, Natural

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Justice Story’s natural law tradition would maintain for the lawyer today: There is (i) a set of basic practical principles which indicate the basic forms of human flourishing as goods to be pursued and realized, and which are in one way or another used by everyone who considers what to do, however unsound his conclusions; and (ii) a set of basic methodological requirements of practical reasonableness (itself one of the basic forms of human flourishing) which distinguish sound from unsound practical thinking and which, when all brought to bear, provide the criteria for distinguishing between acts that (always or in particular circumstances) are reasonable-all-things-considered (and not merely relative-to-a-particular-purpose) and acts that are unreasonable-all-things-considered, i.e. between ways of acting that are morally right or morally wrong—thus enabling one to formulate (iii) a set of general moral standards. 156

Having traced that history, let us now see what more we might learn from a similarly chronological view of philosophy. III. PHILOSOPHY Many would say that the philosophy of legal ethics is a difficult subject. Many would also say that there is much to be gained by its study. The concern should be that our study is more than theoretical—that it also be practical in nature. Immanuel Kant, for instance, pointedly wrote about the application of his moral philosophy after he had completed its theoretical description. 157 There is no point to study if it does not result in concomitant action, but first we must equip ourselves with an understanding of the ethical issues and philosophies of ethics suggested in the following readings. Let us begin with Aristotle’s exploration of the relationship between happiness and virtue as intrinsic goods. Then consider David Hume’s Law and the Constitution Revisited, 70 FORDHAM L. REV. 273 (2001) (continuing to explicate natural law support for the American legal tradition); Robert P. George, The Natural Law Due Process Philosophy, 69 FORDHAM L. REV. 2301 (2001) (showing how lawyers use natural law reasoning to support the objectivity of human good); Robert P. George, The Concept of Public Morality, 45 AM J. JURIS. 17 (2000) (natural law supporting legal concepts of public morality, to which lawyers and others have natural obligations). 156. JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 23 (1980). 157. KANT, supra note 8, at vi (“The Metaphysics of Morals, on the other hand, treats of the varied problems of moral judgment and of choice in concrete situations.”) (editor’s introduction).

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challenge that there is no such thing in the abstract as virtue, good, or for that matter ethics, and that it is all a matter of one’s taste, standpoint, or disposition. Kant’s statement of good will as a categorical imperative—to treat one another as ends only and never as means—must be included. Consider then John Stewart Mill’s utilitarianism, the depravity of Friedrich Nietzsche, Sigmund Freud’s therapeutic ethics, and Edward Wilson’s modern eugenics. Then, finally, look at Judge Richard Posner’s materialism, before returning to Robert George. See what you think of the following readings, how widely each has come to be accepted, and what the implications are of that acceptance. Aristotle posits in The Nicomachean Ethics 158 that man’s purpose is the pursuit of good ends, in particular, of eudaimonia which is roughly—and inadequately—translated as “happiness.” 159 Aristotle called the study or science of the pursuit of good ends “politics,” 160 though today we might think of it more as law. Aristotle believed that when considering law and ethics, we must think first of the end to which our actions are directed. 161 Aristotle made clear that his end, eudaimonia, was not the feeling of happiness, as we think of happiness today, but rather an activity like the pursuit of well-being, which may carry with it feelings of happiness. 162 Thus, well-being consists of good activity, or as Aristotle put it, “human good turns out to be activity of soul exhibiting excellence.” 163 There is an idea of good which is in itself final and self-sufficient. Aristotle also believed that good is closely related to moral virtue. 164 “[M]oral virtue is a state of character,” not a feeling or faculty. 165 “Moral virtue . . . is acquired by repetition of the corresponding [moral] acts.” 166 Moral acts cannot be precisely prescribed, but do involve avoiding both excess of performing and the 158. ARISTOTLE, THE NICOMACHEAN ETHICS 2 (J. L. Ackrill & J. O. Urmson eds., David Ross trans., Oxford Univ. Press 1998) (350 B.C.). 159. David Ross, Introduction to ARISTOTLE, THE NICOMACHEAN ETHICS vi (J. L. Ackrill & J. O. Urmson eds., David Ross trans., Oxford Univ. Press 1998) (350 B.C.). 160. ARISTOTLE, supra note 159. 161. Id. at 1-2. 162. Ross, supra note 160. 163. ARISTOTLE, supra note 159, at 14. 164. Id. THE NICOMACHEAN ETHICS vi, at 165. ARISTOTLE, http://nothingistic.org/library/aristotle/nicomachean/nicomachean17.html (last visited Oct. 28, 2005). 166. ARISTOTLE, supra note 159, at 28.

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failure to perform. 167 When one feels pleasure in doing virtuous acts, that pleasure is a sign that moral virtue has been acquired. 168 Thus, Aristotle concluded that virtuous actions are pleasant in themselves, as well as good and noble. 169 Then, moral virtue simply involves choosing the right ends, where choice, or volition, is the active desire to accomplish that which is within our power. Aristotle addressed quite specifically the method of obtaining virtue. 170 Aristotle began by explaining that it is in the nature of good to be destroyed by defect and excess. 171 Thus, obtaining virtue involves avoiding defect and excess. 172 Courage is an example of moral virtue, lying between the vices of cowardice, a defect, and rashness, an excess. 173 Temperance is another moral virtue, lying between self-indulgence and insensibility. 174 Aristotle held generally that virtues tend to lie at the Golden Mean 175 between defect and excess. 176 Virtues relating to money include liberality and magnificence. 177 Virtues relating to sociability include friendliness, truthfulness, and ready wit. 178 Justice is a cardinal moral virtue. 179 There are intellectual virtues as well, such as wisdom, intuitive reason, understanding, and judgment. 180 On the other hand, Aristotle admitted that “it is no easy task to be good. For in everything it is no easy task to find the middle, . . . wherefore goodness is both rare and laudable and noble.” 181 Cicero (106 B.C.-43 B.C.) 182 is an easy next philosopher on legal ethics after Aristotle—though as a practical Roman, Cicero would not have wanted to be known as a philosopher, and, indeed, was a greater 167. Id. at 30. 168. Id. at 31. 169. Id. at 15-17. 170. Id. at 28. 171. Id. at 30-31. 172. Id. at 30. 173. Id. at 31. 174. Id. 175. Aristotle probably used “mean” (what we would call “average”) in only a figurative sense of finding the right balance, not necessarily in the literal sense of a midpoint between too much or too little of any particular kind of conduct. 176. ARISTOTLE, supra note 159, at 31. 177. Id. at 40. 178. Id. at 42. 179. Id. at 108. 180. Id. at 137-58. 181. Id. at 45. 182. Wikipedia, Cicero, at http://en.wikipedia.org/wiki/Cicero (last visited Oct. 28, 2005).

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borrower of philosophy than an originator. 183 Cicero was antiquity’s greatest lawyer. He wrote the book On Duties 184 to his son in about 44 B.C., near the end of Cicero’s celebrated life in which he held office in the Roman Senate and rose to the highest Roman office of consul. 185 Cicero cannot be appreciated without knowing at least some of his history. Not long after Cicero refused on principle to join Julius Caesar in the first triumvirate with Pompey and Crassus, 186 Cicero was exiled and then later allowed to return, but still banished from politics—giving him considerable time to devote to the study and writing of philosophy. 187 He eventually witnessed Julius Caesar’s murder on the Ides of March in 44 B.C., 188 as a result of which he made an impassioned plea to the Senate to resist Caesar’s murderer Marc Antony and restore the Republic. 189 When Antony instead made peace with the Senate, Antony took the opportunity to have Cicero murdered and his head and hands nailed to the Senate podium. 190 Cicero, though, may have had the last laugh because his son rose to consul and had the privilege of announcing to the Senate the suicide of Antony. 191 Cicero’s greater accomplishment was certainly the influence his writings had on the law and lawyers into the nineteenth, if not even the twentieth century. 192 Cicero wrote On Duties ostensibly to his son who was meant to be studying philosophy in Athens, but in reality was abundantly sowing wild oats. 193 Cicero intended On Duties to be his accumulated wisdom on making good choices. 194 He regarded it as his masterpiece, as did some others. 195 Readers today will see in it not so much the pagan philosophers to whom Cicero owed and gave 183. 3 THE NEW ENCYCLOPEDIA BRITANNICA 313-15 (15th ed. 2002). 184. CICERO, ON DUTIES (DE OFFICIIS) (Walter Miller trans., Harvard Univ. Press 1961) (44 B.C.) [hereinafter ON DUTIES]. 185. Wikipedia, Cicero, at http://en.wikipedia.org/wiki/Cicero (last visited Oct. 28, 2005). 186. ANTHONY EVERITT, CICERO: THE LIFE AND TIMES OF ROME’S GREATEST POLITICIAN 134 (2001). 187. Id. at 145-49. 188. Id. at 268-69. 189. See id. at 287-88. 190. PLUTARCH, FALL OF THE ROMAN REPUBLIC 359-60 (Rex Warner trans., Penguin Classics) (1972). 191. EVERITT, supra note 187, at 324. 192. Id. at vii. 193. Id. at 241-42, 258. 194. ON DUTIES, supra note 185, at 2. 195. Id. at 3.

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great credit but something much more like a Judeo-Christian ethic— one that was about to take its first clear form just after the time of Cicero’s writing. What did antiquity’s most famous lawyer tell his own son and the rest of us about life-shaping ethics, including not only the way in which duties should be performed but also the final purpose of life which defines those duties? Cicero encourages us to pursue a life of honor, explaining how to determine what is honorable and how to determine which of two honorable things is the more honorable.196 He also tells us what is expedient, how to distinguish expediencies, and what to do when the honorable and expedient seem to collide. 197 In the latter case, Cicero compels us to understand that we must have reached a misunderstanding, because what is honorable is also always what is expedient, if only our judgment in both be perfected. 198 Cicero thus encourages us to follow our natural reason toward wisdom, especially in politics where the opportunity presents itself, and not to pursue pleasure for its own sake, leaving it instead to its proper place as an incidental by-product of our more worthy pursuits. 199 In that respect, Cicero sounds somewhat like Aristotle. One also sees that Cicero had a nearly modern mind and morals, which may be why his influence so continued. He believed and wrote much like the more honorable of us might write of morals today. More specifically, Cicero determined in Book I of On Duties that one has a moral duty in every circumstance, the satisfaction of which is right and the neglect of which is wrong. 200 Duty arises out of its connection with the pursuit of the supreme good. The character we develop from such a pursuit one would properly call virtue. Forecasting our own American Declaration of Independence, Cicero said that “these truths are so self-evident that the subject does not call for discussion.” 201 Also forecasting the natural law philosophers, Cicero held that “no fixed, invariable, natural rules of duty can be posited except” on the basis “that moral goodness is worth seeking solely or chiefly for its own sake.” 202 Duty, Cicero believed, deals with both the supreme good and the practical rules of daily life its 196. THE INTERNET ENCYCLOPEDIA OF PHILOSOPHY (James Feiser, Ph.D et al. eds., 2005), at http://www.iep.utm.edu/c/cicero.htm (last visited Oct. 28, 2005). 197. Id. 198. Id. 199. ON DUTIES, supra note 185, at 103-04. 200. ON DUTIES, supra note 185, at bk. I, pt. II, 7. 201. Id. 202. Id. at 9.

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attention regulates. 203 It is when there appears to be a conflict between that which, for its relationship to the supreme good, is believed to be morally right and wrong, and that which appears to be dictated by the practical rules, that we must examine duty closely to resolve the apparent conflict into a coincidence. 204 Nature endows us not only with the will to self-preservation but also with the reason to modulate that will into a broader ethic accounting for our society with others. 205 Reason then gives us the capacity to pursue truth, as well as to exercise with some intelligence our independence or volition. 206 It is these natural elements, together with our appreciation for beauty and order, by which we forge moral goodness. Cicero reminds us that it was Plato who held that the form or face of moral goodness makes us love wisdom. 207 Cicero believed that moral goodness arises from four sources: truth; fulfillment of duty to one another; strong and noble spirit; and order, moderation, and balance in all that is done. 208 Virtue may be revealed in increasing advantages through the course of one’s life, but much more so, in becoming superior to the seeking of those advantages. Cicero urged that it is within the category of fulfilling duties to one another that we find both justice, which is the “crowning glory” of the virtues, and charity, which is also called kindness or generosity. 209 Justice keeps us from doing harm to one another, whereas charity employs us in pursuit of the common good. With “Nature as our guide,” we ought “to contribute to the general good by an interchange of acts of kindness,” bringing “human society more closely together, man to man.” 210 Justice is further founded on good faith or making good on promises and agreements. 211 Cicero then demonstrated the various selfish and ambitious temptations to divert from justice. 212 He also showed that duties exist even in obtaining retribution (not to exceed that which the wrong augured) or delivering charity (for instance, to 203. Id. pt. III, at 9. 204. Id. at 11. 205. Id. pt. IV, at 13, 15. 206. Id. at 15. 207. Id. pt. V, at 17. 208. Id. 209. Id. pt. VII, at 21. 210. Id. at 22. 211. CICERO, ON DUTIES (DE OFFICIIS) bk. I, pt. VII (Walter Miller trans., Harvard Univ. Press 1961) (40 B.C.) available at http://www.constitution.org/rom/de_officiis.htm (last visited Oct. 20, 2005) [hereinafter DE OFFICIIS]. 212. Id. at pt. VIII.

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be a benefactor and not a sycophant). 213 Indeed, charity has a lot to do with proximity—either familial or geographic—that our kindness should first reward those with whom we have the greatest contact and relationship. 214 Drawing again from Plato and other Greek philosophers, Cicero held that everywhere one must avoid selfishness and exhibit instead a public spirit, whether it be in pursuit of justice, or in acts of courage or charity. 215 Indeed, “the mischief is that from this exaltation and greatness of spirit spring all too readily self-will and excessive lust for power.” 216 Thus, one must always be prepared to be restrained by argument and by public or private authority. It is deeds we must seek, not fame which we should acquire. Cicero elaborated that the great soul is the one who exhibits “indifference to outward circumstances; for such a person cherishes the conviction that nothing but moral goodness and propriety deserves to be either admired or wished for or striven after” rather than approbation or satisfaction of the desires. 217 We are not to be governed by our feelings and passions but by our duties. We should not withdraw from the world; rather we must engage it. Cicero encouraged that it is not physical but moral strength in which moral goodness lies 218—as if to say that we ought to train and regulate our bodies but know that it is in the thought and attentions of the mind in which moral goodness lies. In what might well be taken as particular advice to lawyers, Cicero admonished that when administering the laws, we should always “keep the good of the people so clearly in view that regardless of [our] own interests,” or the interests of our clients, we “make . . . every action conform to that” public interest. 219 More generally, Cicero cautioned that in success we should “avoid all arrogance, haughtiness, and pride,” and seek ever more, rather than less, counsel—not to lend “an ear to sycophants.” 220 Cicero’s encouragement would seem to be that whether acting for the public or retired from public employment, we must manage our own private and financial affairs diligently, both to share with deserving kindred and those who ask, and to pay our taxes, but also to steward and 213. 214. 215. 216. 217. 218. 219. 220.

Id. at XI. and VII. ON DUTIES, supra note 185 , at pt. XVII, at 53-54. Id. pt. XIX, at 65. Id. pt. XIX, at 67. Id. pt. XX, at 69. Id. Id. pt. XXV, at 87. Id. pt. XXVI, at 93.

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accumulate short of unjust means of acquisition. Ultimately, Cicero believed that “[n]ature has assigned the roles of steadfastness, temperance, self-control, and considerateness of others” to us, and that “[n]ature also teaches us not to be careless in our behavior towards our fellow-men.” 221 “We should, therefore, in our dealings with people show what I may almost call reverence toward all men— not only toward the men who are the best, but toward others as well.” 222 Cicero’s ethic was above all a natural one: “If we follow Nature as our guide, we shall never go astray, but we shall be pursuing that which is in its nature clear-sighted and penetrating (Wisdom), that which is adapted to promote and strengthen society (Justice), and that which is strong and courageous (Fortitude).” 223 In Book II of On Duties, Cicero treated of expediency, though we might today prefer the word “utility,” which is so popular in modern legal analysis. Here, Cicero flatly rejected what today’s popularizers of utilitarian analysis would hold—that utility is divorced from morality: The principle with which we are now dealing is that one which is called Expediency. The usage of this word has been corrupted and perverted and has gradually come to the point where, separating moral rectitude from expediency, it is accepted that a thing may be morally right without being expedient, and expedient without being morally right. No more pernicious doctrine than this could be introduced into human life. 224

To Cicero, morality and utility were instead “indissolubly blended together.” 225 The only acceptable hope and conviction was “that it is only by moral character and righteousness, not by dishonesty and craftiness, that” ends may be properly attained. 226 Cicero listed the various means by which humans might be compelled to virtue 227 but admitted that it is only by love that they can 221. 222. 223. 224. 225. 226. 227.

Id. pt. XXVIII, at 101. Id. Id. at 103. Id. bk. II, pt. III, at 177. Id. Id. at 179. Id. pt. VI, at 189, 191. Now, it is by various motives that people are led to submit to another’s authority and power: they may be influenced (1) by good-will; (2) by gratitude for generous favours conferred upon them; (3) by the eminence of that other’s social position or by the hope that their submission will turn to their own account; (4) by

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be won. 228 He admonished humanity “to banish fear and cleave to love.” 229 Why would love succeed in winning us to virtue? Cicero stated that it was “because that very quality which we term moral goodness and propriety is pleasing to us by and of itself and touches all our hearts both by its inward essence and its outward aspect.” 230 Humans by nature know love as the intrinsic good. “[W]e are, therefore, compelled by Nature herself to love those in whom we believe those virtues to reside.” 231 Cicero then returned to the philosophic, holding in Book III, Part VI, in forecast of Immanuel Kant to come, “This, then, ought to be the chief end of all men, to make the interest of each individual and of the whole body politic identical. For, if the individual appropriates to selfish ends what should be devoted to the common good, all human fellowship will be destroyed.” 232 As to the human conscience so developed, Cicero concluded, “God himself has bestowed upon man nothing more divine.” 233 Cicero wrote, “Let it be set down as an established principle, then, that what is morally wrong can never be expedient—not even when one secures by means of it that which one thinks expedient; for the mere act of thinking a course expedient, when it is morally wrong, is demoralizing.” 234 He gave the example of a retailer whose sly pitch earns him a sale but loses him a reputation. 235 Cicero wrote, Away, then, with sharp practice and trickery, which desires, of course, to pass for wisdom, but is far from it and totally unlike it. For the function of wisdom is to discriminate between good and evil; whereas, inasmuch as all things morally wrong are evil, trickery prefers the evil to the good. 236

fear that they may be compelled perforce to submit; (5) they may be captivated by the hope of gifts of money and by liberal promises; or, finally, (6) they may be bribed with money, as we have frequently seen in our own country. Id. 228. 229. 230. 231. 232. 233. 234. 235. 236.

Id. pt. VII, at 191. Id. at 193. Id. pt. IX, at 201. Id. DE OFFICIIS, supra note 206, at bk. III, pt. VI. Id. at pt. X. Id. at pt. XII. Id. at pt. XIII. Id. at pt. XVII.

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Everywhere Cicero littered his writing with historical and hypothetical examples, making his book a wonder, given Cicero’s unique historical time and place. He ended, “Herewith, my son Marcus, you have a present from your father—a generous one, in my humble opinion; but its value will depend upon the spirit in which you receive it.” 237 Let us treat in the next section the noble works of Augustine, Aquinas, and others who wrote in the millenniums following Aristotle and Cicero, and skip forward instead to a very different thinker, David Hume, and his influential work written in 1748, An Inquiry Concerning Human Understanding. 238 To know nobility, one must recognize the ignoble or common. Hume expected the genius of his liberalizing philosophy to “gradually diffuse itself throughout the whole society and bestow a similar correctness on every art or calling.” 239 His philosophy would prevail over the “superstition” engaged in by others—by his “carrying the war into the most secret recesses of the enemy.” 240 He saw himself as an “adventurous genius” ready to “leap at the arduous prize[,]” hoping that “the glory of achieving so hard an adventure is reserved for him alone.” 241 Hume regarded moral reasoning as “abstruse philosophy and metaphysical jargon . . . mixed up with popular superstition.” 242 Hume attacked the foundation of natural, moral law as “nothing in the abstract nature of things, but . . . entirely relative to the sentiment or mental taste of each particular being, in the same manner as the distinctions of sweet and bitter, hot and cold arise from the particular feeling of each sense or organ.” 243 Though Aristotle had carefully distinguished morality from sensation, Hume grouped them together, believing instead that: [i]t has been proved, beyond all controversy, that even the passions commonly esteemed selfish carry the mind beyond self directly to the object; that though the satisfaction of these passions gives us enjoyment, yet the prospect of this enjoyment is not the cause of the passion, but, on the contrary, the passion is antecedent to the enjoyment, and without the former the latter 237. Id. at pt. XXXIII. 238. DAVID HUME, AN INQUIRY CONCERNING HUMAN UNDERSTANDING (Charles W. Hendel ed., Liberal Arts Press 1955) (1748) [hereinafter INQUIRY]. 239. Id. at 19. 240. Id. at 21. 241. Id. 242. Id. 243. Id. at 23 n.2.

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could never possibly exist; that the case is precisely the same with the passions denominated benevolent, and consequently that a man is no more interested when he seeks his own glory than when the happiness of his friend is the object of his wishes; nor is he any more disinterested when he sacrifices his ease and quiet to public good than when he labors for the gratification of avarice or ambition. Here, therefore, is a considerable adjustment in the boundaries of the passions, which had been confounded by the negligence or inaccuracy of former philosophers. These two instances may suffice to show us the nature and importance of that species of philosophy. 244

Hume’s liberalizing conception of a purely relative (“morality is nothing in the abstract nature of things, but is entirely relative to the sentiment or mental taste of each particular being”), and purely selfinterested (“a man is no more interested when he seeks his own glory than when the happiness of his friend is the object of his wishes”), moral philosophy is probably the dominant ethical model today. 245 Hume’s moral philosophy had nothing to do with love, virtue, good will, morality, or religion. Rather, Hume founded his moral philosophy on cause and effect—on the way in which man reasons logically from one event to another. 246 To Hume, “[t]he contrary of every matter of fact is still possible, because it can never imply a contradiction and is conceived by the mind with the same facility and distinctness as if ever so conformable to reality.” 247 Because in Hume’s view, events and conditions that seem permanent may nevertheless change, Hume arrived at the “Skeptical Solution of These Doubts,” 248 which is to say that because custom “alone determines the mind in all instances to suppose the future conformable to the past[,]” 249 then custom, and not reason, “is the 244. Id. at 23-24 n.2. 245. Id. at 23 n.2. See also Robert E. Rodes, Jr., On Law and Chastity, 76 NOTRE DAME L. REV. 643, 663 (2001) (“a general moral relativism that became dominant in American jurisprudence somewhere in the second quarter of the twentieth century”); Charles J. Ogletree, Jr., Personal and Professional Integrity in the Legal Profession: Lessons from President Clinton and Kenneth Starr, 56 WASH. & LEE L. REV. 851, 865 (1999) (“law schools and the dominant case method of legal education ultimately teach the incommensurability of values and a moral relativism”) (citing ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 113 (1993)). 246. INQUIRY, supra note 239, at 180. 247. Id. at 40. 248. Id. at 54. 249. Id. at 189.

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great guide of human life.” 250 Man is not relating experience to morals absolute in their nature, but is instead drawing on particular habits. 251 While the life of man may depend on the impression that man is reasoning from reliable moral guideposts, those guideposts do not exist and are instead, as many would say today, convenient cultural constructs. 252 It was this reasoning (and appreciate the irony in saying so) that led Hume to conclude in another of his works, Treatise of Human Nature, 253 that “[r]eason is, and ought only to be the slave of the passions.” 254 Armed with a justifying morality all his own, Hume put his own reason to work in pursuit of his own peculiar passion, in order, as he wrote above, to reserve the glory for himself alone. 255 Though he purported to set forth the definitive work on moral philosophy, Hume admitted in other writings that his ruling passion was literary fame. 256 He did not strive to be ethical, but rather, to be recognized as a genius. 257 So when Hume’s writings were not receiving the attention and approbation he felt they deserved, Hume wrote and published anonymously “a favorable criticism of his own work”—the anonymity to make it appear that the favorable criticism was independent, when clearly it was not. 258 Hume’s self-aggrandizing moral philosophy thus warranted and justified his fraudulent misrepresentation within the marketplace of ideas. One might think, so much for ethics. Hume wrote in his anonymous review of his own work that the purpose of his writings on moral philosophy was to “shake off the yoke of authority, accustom men to think for themselves, give new hints which men of genius may carry further and, by the very opposition, illustrate points wherein no one before suspected any difficulty.” 259 Hume’s rebellion against authority is a perilous attitude for lawyers who constantly relate to judges, magistrates, administrators, legislators, and others who hold duly constituted authority. As the above excerpt suggests, Hume wrote 250. Id. at 58. 251. Id. at 56-57. 252. Id. at 58-59. 253. DAVID HUME, A TREATISE OF HUMAN NATURE (L.A. Shelby-Bigge ed., Oxford Univ. Press 1951) (1888). 254. Id. at 415. 255. INQUIRY, supra note 239, at 21. 256. Id. 257. Id. 258. Id. at xviii (editor’s preface). 259. Id. at 182.

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consistently and copiously against both natural and revealed morality and religion. Hume’s language of warring against conventional morality and religion—“the necessity of carrying the war into the most secret recesses of the enemy”—showed neither tolerance nor respect for those who wrote of right and wrong, of good and evil, and of the nobility of law. 260 Immanuel Kant (1724-1804) 261 was an East Prussian tutor and, for much of his life, an unsalaried professor of philosophy who must be regarded as among the most influential of philosophers. 262 His contribution, as some would see it, was to compose a less dogmatic, nearly agnostic language as a substitute for the central tenets of the Christian faith, in order to produce a rational moral philosophy that could still be regarded as reasonably traditional. In other words, Kant rejected Hume’s pure empiricism and relativism, continued to accept that ideals and absolutes do exist, but attempted to meet and synthesize some of Hume’s criticism of the standard dogma, whether religious or philosophical. The result might be thought of as an agnostic philosophy for those who, while not necessarily believing in an author of good, believe in goodness itself. Kant produced elegant and remarkable works known, however, for their relative complexity. In his 1785 Grounding for the Metaphysics of Morals, Kant attempted to describe the supreme principle of morality. 263 To Kant, his modern study of moral philosophy was equivalent to the ancient Greeks’ study of ethics. By “metaphysics,” Kant meant little more than philosophy founded on first principles drawn not from empirical experience but solely from reason: Everyone must admit that if a law is to be morally valid, i.e., is to be valid as a ground of obligation, then it must carry with it absolute necessity. He must admit that the command, “Thou shalt not lie,” does not hold only for men, as if other rational beings had no need to abide by it, and so with all the other moral laws properly so called. And he must concede that the ground of obligation here must therefore be sought not in the nature of man nor in the circumstances of the world in which man is placed, but must be sought a priori solely in the concepts of pure reason; he must grant that every other precept which is founded on principles of mere experience—even a precept that may in certain respects be universal—insofar as it rests in the least on empirical 260. 261. 262. 263.

Id. at 21. H.B. ACTON, KANT’S MORAL PHILOSOPHY 1 (St. Martin’s Press 1970). 6 THE NEW ENCYCLOPEDIA BRITANNICA 726 (15th ed. 2002). KANT, supra note 9, at 2-3.

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grounds—perhaps only in its motive—can indeed be called a practical rule, but never a moral law. 264

Kant everywhere stressed the necessity of keeping the study of morality to its rational, rather than empirical, basis. He began by staking his concept of morality to the exercise of a good will: “There is no possibility of thinking of anything at all in the world, or even out of it, which can be regarded as good without qualification, except a good will.” 265 There are certainly talents, characteristics, and gifts that can be used for good, but so too could they be used for bad. So, it is innately the good will itself in which lies moral value. It is not the accomplishment of good which is to be valued as much as the will that it be accomplished, because again, good can be accomplished incidentally, or even adversely to one’s motive. Here, Kant exercised a natural reason, that happiness cannot be the ultimate end of man, because it is an insoluble condition, the achievement of which does not occur by devotion to it. As Kant wrote, “the more a cultivated reason devotes itself to the aim of enjoying life and happiness, the further does man get away from true contentment.” 266 Rather, our “existence has another and much more worthy purpose, for which, and not for happiness, reason is quite properly intended, and which must, therefore, be regarded as the supreme condition to which the private ends of men must, for the most part, defer.” 267 Thus, admitting that nature generally, in the distribution of her capacities, has adapted the means to the end, its true destination must be to produce a will, “not merely good as a means to some further end, but good in itself” for which reason was absolutely necessary. 268 Moral content is measured by devotion to duty and not by its success in achieving an end, its utilitarian measure, or preserving or promoting the comfort of the creature who exhibits it. For example, if adversity and hopeless sorrow have completely taken away the taste for life, if an unfortunate man, strong in soul and more indignant at his fate than despondent or dejected, wishes for death and yet preserves his life without loving it—not from inclination or fear, but from duty—then his maxim indeed has a moral content. 269 264. 265. 266. 267. 268. 269.

Id. Id. at 7. Id. at 8. Id. at 9. Id. Id. at 10.

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Actions must be done from duty, not inclination, to have moral worth. To secure one’s own happiness is a duty only to the extent that the failure to do so may give rise to stresses or temptations which would defeat one in one’s duties. An action’s moral worth is not in the purpose the action is intended to achieve but in the maxim from which the action is determined—the principle of volition. Duty is an action done out of respect for the law; only the law can be an object of respect and a source of command. “[T]he pre-eminent good which is called moral can consist in nothing but the representation of the law in itself.” 270 The categorical imperative these principles produce is that “I should never act except in such a way that I can also will that my maxim should become a universal law.” 271 It is this imperative for which Kant is best known, sounding so much like the universal prayer “Thy will be done.” 272 Reason alone requires immediate respect for and attention to the internal legislation, law, or imperative produced by that maxim. One must, if one is reasoning, subordinate one’s will to the command, notwithstanding other influences on one’s senses. One need do nothing more than attend to that maxim in order to do good rather than evil. In fact, to do more such as to rely on science or philosophy would be to corrupt the vitalizing principle. “Moreover, worse service cannot be rendered morality than that an attempt be made to derive it from examples[,]” Kant wrote. 273 Examples may prove certain action feasible, but then, duty may require action previously thought impossible. The wisdom the imperative produces is one that requires action, not merely wishing or intending. The imperative is one of reason influencing the will, which is a will to do or not do, not merely cognition that one is better than the other. “It is clear from the foregoing that all moral concepts have their seat and origin completely a priori in reason, and indeed in the most ordinary human reason just as much as in the most highly speculative.” 274 The contrary condition having no moral worth is one in which decisions known to be required by the universal maxim are nonetheless made contingent based upon subjective or personal considerations—in a word, by selfishness:

270. 271. 272. 273. 274.

Id. at 13. Id. at 14. Luke 11:2 (King James). KANT, supra note 9, at 20. Id. at 22-23.

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But if reason of itself does not sufficiently determine the will, and if the will submits also to subjective conditions (certain incentives) which do not always agree with objective conditions; in a word, if the will does not in itself completely accord with reason (as is actually the case with men), then actions which are recognized as objectively necessary are subjectively contingent, and the determination of such a will according to objective laws is necessitation. That is to say that the relation of objective laws to a will not thoroughly good is represented as the determination of the will of a rational being by principles of reason which the will does not necessarily follow because of its own nature. 275

Indeed, Kant’s imperatives are, in their essence, formulas by which one can compare objective laws to subjective imperfections in the human will. There are three possible purposes of the will. One is the purpose to bring about some end—a technical purpose. 276 Kant wrote in illustration that parents are too likely to impress upon their children technical skills without helping them to distinguish between the value of those purposes. 277 A second purposing is to promote one’s own well-being—a prudential or pragmatic purposing. 278 Only the third kind of purposing, which is not concerned with the subject matter and result but rather attends to the principle from which action would flow, is moral and imperative. 279 Though many would choose the second kind of purposing (prudential or pragmatic) as the reasoned one, it is in fact impossible, because unfortunately, the concept of happiness is such an indeterminate one that even though everyone wishes to attain happiness, yet he can never say definitely and consistently what it is that he really wishes and wills. The reason for this is that all the elements which belonging to the concept of happiness are unexceptionally empirical, i.e., they must be borrowed from experience, while for the idea of happiness there is required an absolute whole, a maximum of well-being in my present and in every future condition. 280

And so, pragmatism cannot truly command at all. The imperative of morality, on the other hand, is not hypothetical or empirical.

275. 276. 277. 278. 279. 280.

Id. at 23-24. Id. at 25. Id. Id. at 26. Id. Id. at 27.

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This moral imperative should be called nature or natural law, insofar as it represents the most general existence of that which can be determined universally. For example, suppose a person suffered so many misfortunes as to consider suicide. But such a principle of selflove—to end life when it becomes miserable—could never be universal because it at once poses the contradiction of destroying life by the same feelings that would further it. A universal law cannot be contradictory. Suicide to avoid suffering “cannot possibly hold as a universal law” but is instead “opposed to the supreme . . . duty.” 281 The imperative of duty does not come from assumptions as to the human condition but would apply to any rational being. Moreover, “[E]very rational being, exists as an end in himself and not merely as a means to be arbitrarily used by this or that will. He must in all his actions, whether directed to himself or to other rational beings, always be regarded at the same time as an end.” 282 The concept of rational nature as an end in itself yields an equivalent categorical imperative that we “[a]ct in such a way that you treat humanity, whether in your own person or in the person of another, always at the same time as an end and never simply as a means.” 283 This treat-another-as-an-endonly imperative, sounding so much like Jesus’ Golden Rule, is the supreme limiting condition on a person’s freedom. 284 To put it another way, we ought to do everything from the maxim that our individual will would be the universal legislating will. 285 Otherwise, if we think of ourselves as subject to law, we must also think of some reward or punishment that would make us conform to it. But if we think of our individual will as autonomous and universal, then we think not of interest or incentive, but of reason and rationality as producing a “kingdom of ends” uniting rational beings through a common law. 286 Kant concludes, “[M]orality consists in the relation of all action to that legislation whereby alone a kingdom of ends is possible.” 287 One who exercises reason in the universal fashion lays claim to membership in the kingdom of ends, has the autonomy of being governed only by one’s own law, and carries a transcendent dignity. 281. Id. at 30. 282. Id. at 35. 283. Id. at 36. 284. JOHN S. MILL, ON LIBERTY, REPRESENTATIVE UTILITARIANISM 453 (Encyclopedia Britannica, Inc. 1952) (1863). 285. KANT, supra note 9, at 38. 286. Id. at 39. 287. Id. at 40.

GOVERNMENT,

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In this manner, morality is related to freedom and the autonomy of will. Reason is the faculty that enables us to distinguish ourselves from our environment and others. We must, in some sense, find our value in reason, because it is only that which can compensate us for sacrificing our autonomy to universals. If we were members only of the world of reason, and had no individual autonomy, then our actions would always accord with reason. But because we are through our reason and senses autonomous, an “ought” is produced that our autonomy be exercised consistent with reason. The moral “ought” is really a necessity, though, insofar as we would remain free members of the kingdom. For we lose our autonomy within that kingdom as soon as we fail to follow reason and instead act instrumentally and non-universally. “The speculative use of reason with regard to nature leads to the absolute necessity of some supreme cause of the world. The practical use of reason with reference to freedom leads also to absolute necessity, but only to the necessity of the laws of the actions of a rational being as such.” 288 Kant published a promised sequel to the above Grounding in the Metaphysics of Morals eleven years later in 1796. 289 It was Kant’s attempt to show the practical application of his original metaphysics. In it, he blended his speculative insight with practical knowledge, so as to preserve universals while promoting the reality of experience—the triumph of the Age of Reason, preserving a cardinal faith in God while dealing fully with man’s natural chaos and conflict. His practical purpose was to wed abstract reason to concrete right, so as to reconcile individual freedom with the demands of the social state. Consider now the modern antithesis of Kant’s individual responsibility and right. Notwithstanding the triumphs of Kant, David Hume’s lingering challenge to the profession’s nobility found a strange partner in John Stuart Mill (1806-1873). 290 Mill was a London philosopher, economist, politician, official of the East India Company, and follower of Jeremy Bentham. 291 In Mill’s Three Essays on

288. Id. at 61. 289. IMMANUEL KANT, THE PHILOSOPHY OF LAW: AN EXPOSITION OF THE FUNDAMENTAL PRINCIPLES OF JURISPRUDENCE AS THE SCIENCE OF RIGHT (W. Hastie trans., Lawbook Exch., Ltd. 2002) (1796). 290. See The History of Economic Thought Website, John Stuart Mill, 18061873, at http://cepa.newschool.edu/het/profiles/mill.htm (last visited Oct. 28, 2005). 291. See id.

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Religion, 292 published after his death, Mill revealed that he was what some have called a compromised agnostic—that he did not believe in an omniscient and loving God, but felt it reasonably likely that there was a lesser benevolent hand at work in the world. 293 Mill’s Utilitarianism 294 was thus an attempt at a substitute moral philosophy to that reflected in Aquinas’s scholasticism and the natural law writers, but not quite so far from those writings as Hume’s outright rejection of them. Mill wrote Utilitarianism in 1863, just over one hundred years after Hume’s Inquiry. 295 Like Hume, Mill showed in Utilitarianism that he felt that “speculation” on “the criterion of right and wrong” was in a “backward state” that might well be corrected by Mill’s progress. 296 Unlike Hume, Mill did not outright reject morality, but instead saw it as a function of our reason rather than a faculty or sense. 297 From this beginning, Mill developed his Utilitarian or Happiness theory, and stated, “The creed which accepts as the foundation of morals, Utility, or the Greatest Happiness Principle, holds that actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness.” 298 Mill made clear in the same place that by happiness, he meant not Aristotle’s wholesome activity in pursuit of well-being but instead pleasure and the absence of pain. To Mill, “[P]leasure, and freedom from pain, are the only things desirable as ends; and that all desirable things (which are as numerous in the utilitarian as in any other scheme) are desirable either for the pleasure inherent in themselves, or as means to the promotion of pleasure and the prevention of pain.” 299 Mill’s “ultimate end” of “an existence exempt as far as possible from pain, and as rich as possible in enjoyments” required that he acknowledge that his utility theory was akin to the pleasure theory of the Epicurean: hedonistic in nature and effect. 300 Mill’s psychological, therapeutic model—that we should govern our conduct and relationships by how we feel or 292. JOHN S. MILL, THREE ESSAYS ON RELIGION (Longmans, Green, Reader, and Dyer of London, 2d ed. 1874), available at http://www.la.utexas.edu/research/poltheory/mill/three/ (last visited Oct. 28, 2005). 293. Id. at 212-14. 294. MILL, supra note 285, at 277. 295. See INQUIRY, supra note 239; see also MILL, supra 285. 296. Id. at 445. 297. Id. at 445-46. 298. Id. at 448. 299. Id. 300. Id. at 448, 450.

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expect to feel mentally and emotionally as a result—has widespread acceptance today, though it contradicts the ancient wisdom that feelings are uncertain products, not reliable guides, of noble action. 301 To Mill, morality was nothing more than the observance of this pleasure-seeking, pain-avoiding rule in the broader sense, toward mankind in general rather than purely to one’s self. Mill acknowledged the difficulty his theory presented: If there was no overarching order or design which—or designer who—would be offended by happiness-denying or pain-inducing action, then why should anyone prefer the happiness of another to one’s own happiness? 302 Indeed, Mill acknowledged that society “is manifestly impossible on any other footing than that the interests of all are to be consulted. Society between equals can only exist on the understanding that the interests of all are to be regarded equally.” 303 He only hoped, while recognizing the disordering nature of his essentially selfish theory, that people who accepted his theory would gradually develop sufficient pleasure from pleasing others so as to override or ameliorate the harsher effects of their seeking to please only themselves. That was Mill’s best hope for the success of his theory; he continued to maintain that the “ultimate sanction, therefore, of all morality” was only “a subjective feeling in our own minds” that “all other moral standards” were based only on “the conscientious feelings of mankind.” 304 Then again, Mill admitted that he believed in the value of virtue, and that some of us could properly regard virtue as an end in itself. 305 And Mill conceded the necessity of morals, though again he equated morality with a social feeling—with happiness—and nothing more. 306 Mill’s theory was, in other words, purely subjective and relative insofar as what it required of any one of us, and purely ends-oriented by justifying any means, including lying, cheating, and stealing. But Mill also acknowledged an exception:

301. See John L. Hill, Law and the Concept of the Core Self: Toward a Reconciliation of Naturalism and Humanism, 80 MARQ. L. REV. 289, 321-22 (1997) (humanistic psychology draws its inspiration from the moral psychology of John Stuart Mill); see, e.g., Robin S. Wellford-Slocum, The Law School Student-Faculty Conference: Towards a Transformative Learning Experience, 45 S. TEX. L. REV. 255, 297 n.178 (2004) (the present therapeutic model). 302. See MILL, supra note 285, at 457-58. 303. Id. at 460. 304. Id. at 458. 305. See id. at 462. 306. See id. at 473-76.

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there must be an objective equality and consideration of all—a contradiction in conception few, if any, have ever resolved. The attack on the citadel was then fully on. The late nineteenth century German philosopher Friedrich Nietzsche (1844-1900) 307 presented perhaps the most extreme popular challenge to traditional morality. Popular thinking in some respects today follows Nietzsche’s belief system—his philosophy, morality, and religion, though he would not have called it morality or religion. Perhaps “worldview” is the more salient descriptor. Often called the first of the existentialists, Nietzsche’s central assertion was that we should pursue the affirmation of an existentialist life by rejecting as much of traditional truth and doctrine as possible. 308 In Nachlass, he wrote, “There are no facts, only interpretations,” 309 and in Human All-TooHuman, “Convictions are more dangerous enemies of truth than lies,” 310 and in On Truth and Lie in an Extra-Moral Sense 311 that “truths are illusions” representing only “the obligation to lie according to a fixed convention[,]” “herd-like[,]” in an “obligatory” style. 312 One sees in these assertions the complete rejection of the viewpoint of anyone other than the speaker or author—in this instance, Nietzsche. It is certainly a paradoxical standpoint to claim as truth that there is none. But so it was for Nietzsche that only Nietzsche could possess the appropriate conviction to be without conviction. If Nietzsche’s writing reads like a cruel game, then he would agree that we should not even be reading, for to Nietzsche words of any kind are the first impostors. “Every word is a preconceived judgment,” he wrote in The Wanderer and His Shadows. 313 One sees the annihilation of the person and the soul, which is what Nietzsche desired and, indeed, 307. FRIEDRICH NIETZSCHE, Beyond Good and Evil, in BASIC WRITINGS OF NIETZSCHE (Walter Kaufmann trans. and ed., Random House 1967) (1886) [hereinafter Beyond Good and Evil]. 308. Id. 309. FRIEDRICH NIETZSCHE, NACHLASS (A. Danto trans.) (1885), available at http://www.pitt.edu/~wbcurry/nietzsche/ntruth.html (last visited Oct. 14, 2005). 310. 6 FRIEDRICH NIETZSCHE, HUMAN ALL-TOO-HUMAN, in THE COMPLETE WORKS OF FRIEDRICH NIETZSCHE 355 (Helen Zimmern trans., Russell & Russell, Inc. 1964) (1878). 311. FRIEDRICH NIETZSCHE, On Truth and Lie in an Extra-Moral Sense, in THE PORTABLE NIETZSCHE 47 (Walter Kaufmann trans., Penguin Books 1982) (1873). 312. Id. 313. 7 FRIEDRICH NIETZSCHE, The Wanderer and His Shadow, in THE COMPLETE WORKS OF FRIEDRICH NIETZSCHE 225 (Oscar Levy ed., Paul V. Cohn trans., T.N. Foulis 1911) (1878) [hereinafter The Wanderer and His Shadows].

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successfully obtained himself when he spent the last years of his life in utter madness. 314 Contrary to simple observation of the universe’s grand and minute order, Nietzsche believed that “[t]he total character of the world, however, is in all eternity chaos—in the sense not of a lack of necessity but of a lack of order, arrangement, form, beauty, wisdom, and whatever other names” we have used to describe nature. 315 “Let us beware,” Nietzsche added in The Gay Science, “of saying that there are laws in nature. There are only necessities: there is nobody who commands, nobody who obeys, nobody who trespasses.” 316 “Such erroneous articles of faith . . . include the following: that there are things, substances, bodies; that a thing is what it appears to be; that our will is free . . . .” 317 In other words, Nietzsche conceived of nature, including human society, as purely a determinate will (if that is not an oxymoron), and at that a “will to power.” 318 Neither reason nor logic were Nietzsche’s calling cards. In his Genealogy of Morals, 319 Nietzsche trumpeted that “there is a realm of truth and being, but reason is excluded from it!” 320 To be sure, in a world which followed Nietzsche, power would be the only means of survival. Nietzsche was thoroughly against any form of conventional morality, especially that promoted by Christianity which he associated with stupidity. 321 It was of course Nietzsche who proclaimed in The Gay Science that “God is dead.” 322 Nietzsche had a sufficiently familiar knowledge of the general sounds (if not the true content and meaning) of moral and theological doctrine so as to construct interesting, if illogical, arguments against them. And he took every such opportunity, perhaps because he recognized the power those 314. See Wikipedia, Friedrich Nietzsche, at http://www.en.wikipedia.org/wiki/Friedrich_Nietzsche#Mental_breakdown (last visited Oct. 22, 2005). Theories of Nietzsche’s insanity also include unusual sensitivity to stimuli, syphilis, over-usage and misuse of medications, and drug exposures while briefly a hospital attendant. Id. 315. FRIEDRICH NIETZSCHE, THE GAY SCIENCE 168 (Walter Kaufmann trans., Random House 1974) (1882) [hereinafter THE GAY SCIENCE]. 316. Id. 317. Id. at 169. 318. Beyond Good and Evil, supra note 308, at 211. 319. FRIEDRICH NIETZSCHE, On the Genealogy of Morals, in BASIC WRITINGS OF NIETZSCHE (Walter Kaufmann trans. and ed., Random House 1967) (1887). 320. Id. at 554. 321. See generally supra notes 308-10, 312-316 and accompanying text. 322. THE GAY SCIENCE, supra note 316, at 167.

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doctrines invested in the otherwise powerless. For instance, in Daybreak, 323 he mistook biblical encouragement to avoid doubt on fundamental issues as instead a call to “blindness and intoxication” devoid of reason; 324 he overlooked biblical calls, especially those that established the basis for modern science, to self-examination, examination of all doctrine, and pursuit of reason. In Thus Spoke Zarathustra, 325 Nietzsche deliberately manipulated Christian imagery, substituting the “over man” for the son of man, the “dancing star” for the morning star, “faithful to the earth” for faithful to the Lord, and “no shepherd and one herd” for the shepherd and his flock, while deliberately mimicking biblical language such as “Behold,” “I say unto you,” and “thou shalt.” 326 He labeled individuals of a more conventional faith than Nietzsche’s “evil friends” and “the worst monsters for mortals.” 327 But it was not only theologians at whom Nietzsche railed. He also thought philosophers “terrible explosive, endangering everything,” and felt himself “worlds removed” from Immanuel Kant, for instance, as he wrote in Ecce Homo. 328 Yet, Nietzsche preferred the Greek philosophers, such as Epicurus, to Christian doctrine and hoped in The Wanderer and His Shadow that we would “take up the Memorabilia of Socrates [rather] than the Bible” as a guide to morals and reason. 329 But Nietzsche wrote in Daybreak that he would have preferred to be unconstrained by guides of any sort, for “morality is a hindrance to the creation of new and better customs: It makes stupid.” 330 Nietzsche believed that progress was when bad men overthrew moral customs. 331 Indeed, in Daybreak Nietzsche exhilarated that if we would only throw off the “morally good[,]” then “the wicked [would] enjoy a hundred kinds of happiness of which the virtuous have no inkling” and would “possess a hundred kinds of beauty” of which

323. FRIEDRICH NIETZSCHE, DAYBREAK: THOUGHTS ON THE PREJUDICE OF MORALITY (R.J. Hollingdale trans., Cambridge Univ. Press 1982) (1881) [hereinafter DAYBREAK]. 324. Id. at 89. 325. FRIEDRICH NIETZSCHE, THUS SPAKE ZARATHUSTRA passim (A. Tille trans., J.M. Dent & Sons 1958) (1883, 1884, 1891). 326. Id. 327. Id. at 81. 328. FRIEDRICH NIETZSCHE, Ecce Homo, in BASIC WRITINGS OF NIETZSCHE 737 (Walter Kaufmann trans., Random House 1967) (1888). 329. The Wanderer and His Shadow, supra note 314, at 242. 330. DAYBREAK, supra note 324, at 18. 331. Id.

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“many of them have not yet been discovered.” 332 Nietzsche venerated an evil death, writing in Daybreak “of a martyrdom of the evil man[,]” and “He who is evil is at his most evil in solitude: which is where he is also at his best.” 333 In Beyond Good and Evil, Nietzsche also venerated exploitation as “the essence of what lives,” 334 and, in The Will to Power, 335 asserted that human society—even a society claiming a moral ethic—is simply the union of those who possess sufficient power to dominate and exploit others. 336 Justice Holmes, who would rid the law of morality and recognize a might-makes-right ethic, had his philosophical partner in Nietzsche. The degradation of the noble ethic—this philosophical revolution—was not quite complete. Sigmund Freud (1856-1939) was an Austrian neurologist who founded and popularized psychoanalysis, redefined morality in psychological and familial terms, and lent popular credence to the notion that much of our action is guided by subconscious processes. 337 Freud’s influence was as great in literature, philosophy, and culture as it was in medicine— perhaps even greater. Indeed, one could readily attribute to Freud the popularity today of the therapeutic worldview in which individuals conceive of themselves as constantly in need of “letting off steam” from their repressed aggressions and of talking their way back to childlike health from the wounding they received by misguided parents. 338 Freud was at least the popularizer, if not also the inventor, of both concepts: The individual is in need of therapy to counteract the deleterious effect of a repressed subconscious, as reflected in his first noteworthy work, The Interpretation of Dreams, 339 and one’s childhood relationship with one’s parents is the primary architect of identity, personality, motivation, and morality. 340 332. 333. 334. 335.

Id. at 195. Id. at 203. Beyond Good and Evil, supra note 308, at 393. 14 FRIEDRICH NIETZSCHE, The Will to Power, in THE COMPLETE WORKS OF FRIEDRICH NIETZSCHE 248-52 (Anthony M. Ludovici trans., Russell & Russell, Inc. 1964) (1888). 336. Id. at 248-52. 337. 5 THE NEW ENCYCLOPEDIA BRITANNICA 5 (15th ed. 2002); see also 19 THE NEW ENCYCLOPEDIA BRITANNICA 566-71 (15th ed. 2002). 338. See Biographical Note to 54 THE MAJOR WORKS OF SIGMUND FREUD v-vi (Robert M. Hutchins et al. eds., 1952). 339. SIGMUND FREUD, The Interpretation of Dreams, in FREUD, GREAT BOOKS OF THE WESTERN WORLD (Robert M. Hutchins et. al. eds., Encyclopedia Britannica, Inc. 1952) (1900). 340. Id. at 385.

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Freud’s influence certainly reached the popular conception of morality and ethics. Traditionally, since the fourth-century writings of Jerome, as reinterpreted by Augustine and Aquinas, morality or conscience was what the mistake-prone human reason could best make of our universal, God-given ability (captured in the Greek term synderesis) to sense the difference between good and evil. 341 But following the attacks on the citadel by Hume, Nietzsche, and others, the atheist Freud substituted the internalized authority figure superego for the externally-granted synderesis, and (through his Oedipus and Electra complexes) 342 designated the parents rather than God as the creators of that authority figure. 343 In Freud’s pseudo-trinity, the native id (possessing our animal drives) competed with the overarching superego to influence the moderating ego. 344 Freud thus created a wholly secular explanation for the existence, development, and conscious possession of morality within the individual. As a result, Freud was able, in his Civilization and Its Discontents, 345 to posit the relationship of the individual to society as one of an aggressive, egotistical, guilty, and unfulfilled freedom-lover inhibited by the conformity required by civilized society. 346 In doing so, Freud made significant changes to the popular and conventional idea of morality. Freud’s superego, for instance, was not the gentle and loving God who had in mind and heart our prosperity. 347 Rather, Freud conceived of the superego as an often cranky, manipulative, and overbearing prosecutor who would just as well drive the superego’s host into depression and oblivion. 348 One might say that Freud was projecting onto a genuine and loving God the representative conceptions of moral authority he had learned from his own parents or the parents he observed around him. Freud 341. Wikipedia, Synderesis, at http://en.wikipedia.org/wiki/Synderesis (last modified Aug. 21, 2005). 342. 8 THE NEW ENCYCLOPEDIA BRITANNICA 879 (15th ed. 2002); 19 THE NEW ENCYCLOPEDIA BRITANNICA 568 (15th ed. 2002). 343. 11 THE NEW ENCYCLOPEDIA BRITANNICA 399 (15th ed. 2002); 19 THE NEW ENCYCLOPEDIA BRITANNICA 569 (15th ed. 2002). 344. 6 THE NEW ENCYCLOPEDIA BRITANNICA 238 (15th ed. 2002); 19 THE NEW ENCYCLOPEDIA BRITANNICA 569 (15th ed. 2002). 345. SIGMUND FREUD, CIVILIZATION AND ITS DISCONTENTS (James Strachey trans., W.W. Norton & Co. 2005) (1930). 346. Id. at 106-10, 118, 137-38. 347. Wikipedia, Sigmund Freud, at http://en.wikipedia.org/wiki/Freud (last modified Nov. 20, 2005); Wikipedia, Ego, superego, and id, at http://en.wikipedia.org/wiki/Superego (last modified Nov. 19, 2005). 348. Id.

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continued to reject conventional morality and religion throughout his long life. Near the end of his life, he wrote in Moses and Monotheism 349 about his novel theory that the Jewish patriarch Moses was actually two individuals: one was murdered by Joshua in a symbolic rebellion against the father figure and the other taught the Jews to worship a volcano god in Western Arabia. 350 On the whole, Freud’s theories were controversial within the scientific community. 351 Many leading academic and research psychiatrists regard Freud as a charlatan. 352 But in any case, Freud’s psychological model of a cranky morality and overbearing conscience may well have taken the place, both in the academy and in the popular culture, of the rich, subtle, complex, and wholly good form of morality previously understood by Jerome, Augustine, Aquinas, and other traditional moralists. Morality was no longer noble, or nobility was no longer moral. Where would it all lead? Should lawyers fully abandon their traditional, natural, and moral ethic? Professor and research biologist Edward O. Wilson holds the prestigious National Medal of Science and is a Pulitzer Prize-winning author of best-selling books about science, philosophy, and ethics. 353 Wilson published On Human Nature 354 in 1978 through the press of Harvard University, where he is also an honorary museum curator. 355 Arguably, Wilson’s scientific materialism represents the philosophical and ethical view of many who hold positions of power and influence. Wilson writes in On Human Nature that “the time has at last arrived to close the famous gap between the two cultures” of the biological and the social

349. Infoplease, Sigmund Freud, at http://www.infoplease.com/ce6/people/A0819691.html (last visited Oct. 24, 2005). 350. SIGMUND FREUD, MOSES AND MONOTHEISM 27, 64, 87, 113 (Katherine Jones trans., Vintage Books 1939). 351. Voidspace, Freud – An Introduction, at http://www.voidspace.org.uk/psychology/freud_intro.shtml (last visited Oct. 24, 2005). 352. Dr. John Grohol’s Psych Central, Sigmund Freud, at http://psychcentral.com/psypsych/wiki/Sigmund_Freud (last modified Oct. 9, 2005). 353. University of Nebraska State Museum, Edward O. Wilson, at http://wwwmuseum.unl.edu/research/entomology/workers/EWilson.htm (last visited Nov. 20, 2005). 354. EDWARD O. WILSON, ON HUMAN NATURE (1978). 355. Natural Connections, Edward O. Wilson Profile, at http://www.metrokc.gov/dnrp/swd/naturalconnections/edward_wilson_bio.htm (last modified Oct. 13, 1999).

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sciences by extending “evolutionary theory to social organization.” 356 Wilson describes, from the standpoint of an advocate, the “profound consequences that will follow as social theory at long last” submits to the scientific materialist view, holding “grander hopes” for mankind “in the trust gambled on scientific materialism.” 357 In doing so, Wilson admits a kinship with David Hume, whom he labels “the great philosopher,” and then states his scientific materialist premise, which is a slight adaptation of Hume’s, that mankind has no purpose “beyond the imperatives created by its genetic history.” 358 Wilson writes that philosophy, religion, morality, and ethics are nothing more than biological adaptations to environments. 359 He asserts that they are much less than that: they are primitive, long-outmoded, and humiliated “enabling mechanisms for survival.” 360 Traditional ethics are “archaic behavioral adaptations” formed in “the world of the IceAge hunter-gatherer.” 361 Wilson’s last crucial achievement would be to see religion’s “power as an external source of morality” be “gone forever” and replaced by a “scientific ethos superior to religion.” 362 Wilson, though, like Holmes, who claims to be scientific and materialist, appears more a spiritualist or moralist if one listens less to what Wilson says and instead looks more at the evidence of his writings. Wilson writes in On Human Nature that he would like us to “finally concede that scientific materialism is itself a mythology defined in the noble sense.” 363 At crucial points, Wilson co-opts religious references and forms. In prefacing his theme, Wilson writes openly of a “scientific spirit[,]” the ideas of which are “made mortal” and “too young and weak[,]” and therefore, “still too imperfect” for his assertions “to be carved in stone.” 364 Wilson, in other words, seeks an immortal and perfect spirit whose words, like those of Moses’ immortal and perfect God, would be carved on commanding tablets. Wilson quotes God chastising Job (with the quite evident truth that man has not created worlds) but then writes (quite ahistorically, for what worlds have we created?) that “Jehovah’s challenges have been met and scientists have pressed on to uncover 356. 357. 358. 359. 360. 361. 362. 363. 364.

WILSON, supra note 355, at x. Id. Id. at 1-2. Id. at 2. Id. at 3. Id. at 196. Id. at 201. Id. at 200-01. Id. at x-xi.

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and to solve even greater puzzles.” 365 Wilson’s thesis creates “great spiritual dilemmas.” 366 Wilson quotes the enlightenment poets, who would see in Wilson’s purposeless man a nobly tragic condition, like Yeats’ “coming of wisdom” that “[n]ow I may wither into the truth.” 367 So for Wilson, there are very clearly transcendent truths. While purporting to discredit any morality as a vestigial adaptation, Wilson looks instead to build “a new morality based upon a more truthful definition of man” based on evolutionary history. 368 Wilson, in other words, does not reject morality but simply advocates a different one. Wilson writes that he, like other scientific materialists, is interested in escaping “automatic control based on our biological properties” and substituting “precise steering” for it. 369 However, Wilson’s steering would not be by the accumulated traditional judgments about what best suits our nature, such as to promote families, control ourselves, and regard one another. 370 Instead, Wilson writes that “[t]he search for values” must “go beyond” “enabling mechanisms” such as “the restful satisfaction from an altruistic act” and “family ties.” 371 To Wilson, “[a]bove all, for our own physical well-being if nothing else, ethical philosophy must not be left in the hands of the merely wise.” 372 Perhaps that would be too material for Wilson. Rather, Wilson writes that the scientific materialist would steer us by biological knowledge hard won by people like Wilson. 373 In short, though he disparages transcendentalism, Wilson wants to “transcend anthropocentrism” in order to make “the proper study of man.” 374 This would be an achievement not even the most religious transcendentalist would pursue—to wish no longer to be a man when studying man. The scientific materialist is not shy to abandon knowledge as the basis for gainful communication: “We need to speak more explicitly of the things we do not know”—of the “absorbing mysteries” lying in “the

365. 366. 367. 368. 369. 370. 371. 372. 373. 374.

Id. at 202. Id. at 2. Id. at 3. Id. at 4. Id. at 6. Id. at 13. Id. at 199. Id. at 7. Id. at 6. Id. at 13.

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immense gaps” of technical knowledge. 375 For science, Wilson asserts, “must increasingly become the stimulus to imagination.” 376 In the concluding chapter, inaptly titled “Hope,” Wilson describes how, in the present moral chaos produced by the fatal deterioration of religion and its secular moral equivalents, our human behavior is to be better controlled. 377 Wilson writes that “the human predicament is not so tight that it cannot be broken through an exercise of will[,]” namely, by biologists identifying “the constraints that influence the decisions of ethical philosophers and everyone else” so as to “alter the foundation of the social sciences” without diminishing their importance. 378 Wilson means to stop the current ethical thinking presently engaged in by everyone else, including lawyers. In its place, Wilson writes that “the new ethicists” will determine ethics in reference to “the cardinal value[,]” which is “the survival of human genes in the form of a common pool over generations.” 379 Gone will be the values of the human individual, or even communities of individuals, all subjugated to a generational gene pool. Wilson writes, “The individual” is nothing more than “an evanescent combination of genes drawn from this pool, one whose hereditary material will soon be dissolved back into it.” 380 Wilson believed that we should find “the very concept of individual freedom intrinsically evil.” 381 Wilson further asserts that we must replace concern for the individual with “a more detached view of the long-range course of evolution” in order “to envision the history and future of our own genes against the background of the entire human species.” 382 “A word already in use intuitively defines this view: nobility[,]” Wilson writes, speaking not of traditional nobility but of Yeats’s tragic sense of individual purposelessness. 383 The hope is, Wilson writes, that “individuals of truly extraordinary capacity” (presumably, like Wilson, able to see grand visions of genetic futures) will “emerge unexpectedly in otherwise undistinguished families” justifying “the preservation of the entire gene pool” for the time being. 384 Wilson 375. 376. 377. 378. 379. 380. 381. 382. 383. 384.

Id. at 204. Id. at 205. Id. at 208. Id. at 196. Id. at 196-97. Id. at 197. Id. at 199. Id. at 197. Id. Id. at 198.

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further writes that we should preserve “the entire gene pool [only] as a contingent primary value until such time as an almost unimaginably greater knowledge of human heredity provides us with the option of a democratically contrived eugenics.” 385 One may suppose that Wilson is speaking here of some socially engineered, race-based democracy akin to Nazi Germany. Scientists who step outside scientific materialism to participate in a humanistic culture should be disregarded, Wilson writes, as “tame scientists” and “token emissaries” of a true science that will “trouble and move the deeper reaches of the mind” toward Wilson’s grand, non-human or inhuman vision. 386 Wilson asserts that scientific materialism serves “as a kind of antidiscipline to the humanities.” 387 Where is Wilson’s progress headed once we overcome conventional morality and substitute for it a eugenics directed by biologists like Wilson? “Unknown and surprising things await[,]” Wilson concludes. 388 Wilson recognizes that his view “will undoubtedly be opposed as elitist” and that “[t]here is an element of truth in that objection.” 389 He also recognizes that “as scientific materialism appropriates [religion’s] mythopoeic energies to its own ends[,]” his view will be opposed most vigorously by those Americans who preserve as our first freedom the right to pursue moral, religious, and ethical truths unlike Wilson’s own. 390 Wilson knows people of faith will oppose his scientific materialist view because he does not propose scientific materialism as an alternative; rather, scientific materialism takes control of faith as “powerful, ineradicable, and at the center of human social existence.” 391 He wants to shift the “ineradicable” energy produced by faith toward his new goals “because scientific materialism is the only mythology that can manufacture [sufficiently] great goals.” 392 Those goals include perfecting techniques “for altering gene complexes by molecular engineering and rapid selection through cloning[,]” 393 he writes, speaking, we presume, of the selection and concomitant de-selection of humans. But even if those techniques do not prove fruitful at producing whatever Wilson 385. 386. 387. 388. 389. 390. 391. 392. 393.

Id. at 198 (emphasis added). Id. at 203. Id. at 204. Id. at 205. Id. Id. at 205-06. Id. at 206-07. Id. Id. at 208.

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envisions—a super-human race?—Wilson hopes that “[a]t the very least, slow evolutionary change will be feasible through conventional eugenics.” 394 The purpose of such eugenics is to “press on toward still higher intelligence and creativity” with either a greater or lesser capacity for emotional involvement, possibly “to imitate genetically the more nearly perfect nuclear family of the white-handed gibbon or the harmonious sisterhoods of the honeybees.” 395 Ultimately, Wilson’s purpose is to encourage “blind hopes that the journey on which we are now embarked will be farther and better than the one just completed[,]” then quoting Prometheus, so as to “‘cause[] mortals to cease foreseeing doom.’” 396 How far is Wilson’s strangely lauded scientific-materialist ethic from having substantial influence in the legal profession? To what extent has the scientific materialism of Holmes and Wilson influenced the law and legal academy? United States Court of Appeals for the Seventh Circuit Judge Richard A. Posner is among the most prolific, widely cited, and widely quoted legal scholars of today. 397 Judge Posner published The Problematics of Moral and Legal Theory 398 in 1999, based on his 1997 lectures at Harvard Law School, “as an extended homage to Holmes’s ideas about morality and law” because Holmes “was on the right track, and one aim of my lectures was to push the engine a bit farther along.” 399 Posner’s purpose in writing has been “the freeing of [law] from moral theory[,]” the methods of which Posner believes “don’t work in any domain” in which they are applied. 400 When given the choice between moral philosophy and science, “the law should take its bearings” from science. 401 To Posner, “moral philosophy has nothing to offer” 402 to judges and legal scholars, and “it has very little to offer anyone engaged in a normative enterprise, quite without regard to the law.” 403 Indeed, “it is 394. Id. 395. Id. 396. Id. at 209. 397. Samuel W. Calhoun, Grounding Normative Assertions: Arthur Leff’s Still Irrefutable, But Incomplete, “Sez Who?” Critique, 20 J.L. & RELIGION 31, 38 (2005) (“Judge Posner has long been one of the country’s most prolific and influential legal theorists.”). 398. RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY (1999). 399. Id. at vii. 400. Id. at vii-viii. 401. Id. at viii. 402. Id. 403. Id.

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particularly clear that legal issues should not be analyzed with the aid of moral philosophy, but should instead be approached pragmatically. The proper methods of inquiry are therefore those that facilitate pragmatic decision making—the methods of social science and common sense.” 404 Moral theory is “useless” 405 and “spurious.” 406 In its place, Posner is “guided mainly by the kind of vague utilitarianism, or ‘soft core’ classical liberalism, that one associates with John Stuart Mill, especially the Mill of On Liberty,” he writes. 407 He has no criticism of David Hume who, like Posner, rejects the distinction between moral vice and virtue. 408 Despite claiming that there are no transcultural universal morals and instead only local pragmatic constructs, Judge Posner claims to have discovered that certain forms of moralism are more or less true than others—against, oddly enough, his own standard, though he denies engaging in “vulgar relativism.” 409 Instead, Posner writes that he follows “diluted versions of moral subjectivism, moral skepticism, and noncognitivism” 410—perhaps meaning that he thinks only what he wishes (subjectivism), does not accept much of anything others say (skepticism), and that he communicates in a fashion that does not make much sense (noncognitivism). Yet, he does not reject theory in general. Indeed, he embraces economic and evolutionary biology theory, which he finds “beautiful and useful[,]” 411 perhaps thinking of the leading evolutionary biologist Wilson. And yet, in some respects, Judge Posner goes a long way toward supporting traditional moral theory. He admits that a “warrant for believing that there is a moral law . . . is faith in a Supreme Lawgiver and in a spiritual reality as real as a material reality” in the manner accepted by Jews and Christians. 412 In other words, if people of faith like the American founders are correct in their supposition of a Creator who made the Laws of Nature and of Nature’s God, then moral theory is all it claims to be. He also admits that “[e]very society, every subculture within a society, past or present, has had a moral code,” although Posner denies the real foundation all those 404. 405. 406. 407. 408. 409. 410. 411. 412.

Id. Id. at ix. Id. at 3. Id. at xii. Id. at 6. Id. at 8. Id. at 12. Id. at 13. Id. at 17.

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codes claim, saying instead that they are “shaped by the exigencies of life in that society or that subculture rather than by a glimpse of some overarching source of moral obligations.” 413 In Posner’s view, infanticide or slavery simply cannot be called immoral, especially because those who have argued otherwise have done so “with equal plausibility that infanticide or slavery was presumptively good[,]” except perhaps in a wealthy American society. 414 The anti-moralist Nietzsche’s cruel and inegalitarian warrior society (one where infanticide and slavery would presumably be permitted) may simply be preferred “on aesthetic grounds impossible to refute,” he writes. 415 Posner, in other words, admires and follows Nietzsche. Posner points out that Harvard Law School, for example, appears to be successful in stripping its students of altruistic morals. 416 Posner cites a study that finds as many as seventy percent of Harvard’s firstyear students aspire to practice public-interest law, but only five percent maintain that desire by their third year. 417 That decline in morals would make sense to the extent that the Harvard Law School curriculum represents and instills the non-moral and anti-moral thinking of Holmes and Posner. But Posner fails to see his influence and the influence of his admired Holmes on Harvard, for he writes that Harvard students receive an idealistic education by moral law professors 418—whom his Holmes Lectures at Harvard were meant to contradict. Perhaps the students were listening to Posner rather than their moral professors. Or maybe the Harvard professors were teaching more like Posner. Or perhaps Posner is correct that “morality may be losing its grip on modern people . . . owing to currents that moral education cannot stanch.” 419 As to the legal profession, Judge Posner first takes aim at the very thought that lawyers have anything to offer the paying public, arguing instead that they survive by inculcating the false belief that they do offer services of value. 420 Posner states several tactics lawyers 413. Id. at 19. 414. Id. 415. Id. at 20. 416. Id. at 72. 417. Id. (citing Howard S. Erlanger et al., Law Student Idealism and Job Choice: Some New Data on an Old Question, 30 LAW & SOC’Y REV. 851, 852 (1996) (citing ROBERT GRANFIELD, MAKING ELITE LAWYERS: VISIONS OF LAW AT HARVARD AND BEYOND 48 (1992))). 418. POSNER, supra note 399, at 72. 419. Id. at 74. 420. Id. at 187.

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allegedly employ to preserve their “shaky” claims to knowledge in a dissipating “mystique,” including obscure language, high intellectual demands for entry to the profession, professional training, charismatic personality, under-specialization, lack of hierarchy, altruistic pretense, and anticompetitive behavior. 421 He attributes the great changes in the legal profession since the 1950s to “painful and vulgar” competition “in the economic marketplace” leading to cartelization. 422 Posner’s hope and expectation is that the legal profession will follow Holmes’s path of “overcoming law” so as to become a form of social control having the “essential functions of law[,]” but not being law “in a recognizable sense” to us today. 423 Although law is “continuous with morality, and it is certainly saturated with moral terms,” Posner writes that as law is more and more divorced from morality, it “will eventually be superseded” by “[p]redictions of what the courts will do” in any given case because that is “really all there is to law. Morality is immaterial.” 424 According to Posner, we will have a rule of judges unconcerned with morals and a profession whose role it is to predict in any given case what a judge will do or not do. 425 This judge-based law “doesn’t really care about intentions or other mental states” suggesting fault or blame because these concepts are only “backward-looking” Judeo-Christian moral concepts. 426 Instead, “[j]udges have got to understand that the only sound basis for a legal rule is its social advantage” instructed by economics and other sciences. 427 What Posner wants is a system of criminology not based on consequences for actions (the moral and deterrent view), but rather using scientists “to identify and isolate, or even kill, dangerous people” 428—a sort of preventive capital punishment, one supposes. It would appear that lawyers would be unnecessary in such a system, for there would be no rights or duties to protect. Oddly, Judge Posner sees the peril of such a non-moral ethic and sees the benefit in “the maintenance of a moral veneer in the law’s dealing with the people subject to it” and that morality “offers a first line of defense against excesses of official violence.” 429 But Posner 421. 422. 423. 424. 425. 426. 427. 428. 429.

Id. at 187-89. Id. at 196-97. Id. at 206-07. Id. at 207. Id. Id. at 208. Id. Id. Id. at 209.

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never concedes the essential value and nature of morals-based ethics. 430 Posner recognizes that it was his endeared Holmes who, without the “lesson of totalitarianism” taught us by Hitler, made the mistake of going so far as to exclude whole classes of individuals, including the mentally disabled, from the human community and even quotes 431 Holmes’s infamous “[t]hree generations of imbeciles are enough” line from Buck v. Bell. 432 Posner recognizes that Holmes embraced too quickly purportedly scientific solutions like eugenics, the therapeutic model of criminal justice, and no-fault insurance systems. 433 But Posner still holds that we should only be somewhat more “wary about jettisoning the traditional conception of law, barnacled . . . with fusty moralisms, in favor of a wholly scientific conception of law.” 434 “New methods of apprehending social behavior, such as game theory, have emerged. We know more about the social world than Holmes could have known. We should be able to avoid his mistakes[,]” Posner concludes, though, “[n]o doubt we shall make our own.” 435 We should improve our understanding and use of biology, economics, and game theory (among other sciences), he writes. 436 Posner concludes, above all, we must desist from the use of “normative moral theory” if we are to “avoid these dead ends and keep on the path that leads to a true and healthy professionalization of law if we steer by the light of pragmatism.” 437 As cranky as his views sound regarding the benefits of morality and, for that matter, a moral legal profession, Posner ought not to be regarded as a crank. In Lawrence v. Texas, 438 a United States Supreme Court majority, quoting a prior dissent in Bowers v. Hardwick, 439 wrote that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” 440 Justice Scalia’s dissent in Lawrence said the following about the Court’s statement and holding: “This effectively decrees the end of 430. 431. 432. 433. 434. 435. 436. 437. 438. 439. 440.

Id. at 207-11. Id. 274 U.S. 200, 207 (1927). POSNER, supra note 399, at 210. Id. Id. at 211. Id. at 309-10. Id. at 310. 539 U.S. 558 (2003). 478 U.S. 186, 216 (1986) (Stevens, J., dissenting). Lawrence, 539 U.S. at 577.

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all morals legislation.” 441 Arguably, in certain circumstances, the Supreme Court does not see law as even permissibly based on morality. Can the legal profession be? Yet all is not lost of the profession’s nobility. The strong possibility exists that these challenges to it will make it even stronger and nobler. Robert George is a Princeton University Professor of Law, member of a presidential ethics panel, and leading American defender of natural, moral, and ethical law. 442 In his 1993 book Making Men Moral, 443 Professor George defends the moral view of law and the legal profession while answering some of the concerns of its critics. 444 Professor George argues that “integral human wellbeing[,]” or that general public good which ethics directs us to pursue, is “intrinsically variegated” 445—that is, of many expressions and forms. By integral “human well-being[,]” Professor George does not mean the complete satisfaction of any one human, but rather, the interwoven satisfaction of all at the expense of none. 446 “There are many irreducible, incommensurable, and thus basic human goods[,]” Professor George writes. 447 Crediting the writings of British naturallaw proponent John Finnis, Professor George lists seven general classifications of those basic human goods: life in the broad sense of health and vitality; knowledge; play; aesthetic experience; sociability in the sense of friendship broadly conceived; practical reasonableness; and religion. 448 Take knowledge, for instance: there is intrinsic value in the capacity and accomplishment of thinking. 449 Or take play: there is likewise inherent value in the activity of creatively joyful engagement of the mind and senses. 450 There is also intrinsic value in reason, religion, and the other basic human goods, which are not transcendent Platonic forms. 451 Nor are they instrumental means of 441. Id. at 599 (Scalia, J., dissenting). 442. Princeton University, Robert P. George, at http://webdb.princeton.edu/dbtoolbox/query.asp?qname=vWebPage&NetID=rgeorg e (last visited Nov. 20, 2005). 443. ROBERT P. GEORGE, MAKING MEN MORAL: CIVIL LIBERTIES AND PUBLIC MORALITY (1993). 444. Id. at 1. 445. Id. at 13 (1993). 446. See generally id. at 11-13 (discussing a means-ends analysis for describing human interaction). 447. Id. at 13. 448. Id. 449. See id. at 12-13. 450. See id. 451. Id.

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reaching or accomplishing other basic human goods. Rather, they are constitutive aspects of humanity—irreducible goods instantiated within the human form. 452 Professor George writes that basic human goods define the limit of intelligent, upright, fitting, or rational action, meaning that any action which does not promote one or more of those basic human goods is irrational and misguided. 453 Rational action promoting these goods tends to produce positive feelings. 454 Professor George holds that if one instead makes feelings the goal, then the unreliability and secondary nature of feelings will misdirect rational choice away from basic goods, resulting in harm and wrong which will then impair the feelings. 455 He writes that complete integral human fulfillment—the satisfaction of all humans everywhere—is in this life an impossible ideal but a wholly worthwhile directive. 456 The moral or ethical ideal is one of practical intelligence and reasonableness, unswayed by feeling, directed toward integral human fulfillment. 457 It is all about making choices. One must see in each choice the best advantage for expanding the greater whole of good. Choosing an end which satisfies an immediate desire while foreclosing the greater satisfaction of the whole cannot be moral or ethical as it is contrary to practical reasonableness, Professor George writes. 458 Though this formulation is impractical as an actual guide, Professor George encourages that its more specific forms, such as the Golden Rule to do to others as you would have done to yourself, and the Pauline Principle not to do evil that good may come, are notable examples of workable corollary guides that teach us the ways in which feelings can fetter and misguide reason. 459 Professor George agrees in part with Aristotle and Aquinas that the perfection of moral or ethical virtue must be accomplished by some kind of training outside of the individual’s own methods and reasoning. 460 Thus, law and government are first to establish a virtuous life (a reasonable order), then to preserve it, and finally to promote it to greater perfection, Professor George asserts. 461 The 452. 453. 454. 455. 456. 457. 458. 459. 460. 461.

Id. at 13-14. Id. at 15. See id. Id. Id. at 15-16. Id. at 16. Id. Id. at 17. Id. at 28-29. Id. at 30.

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virtuous life depends on both material and moral conditions—material in the sense of a minimum of those things necessary to biological life, and moral in the sense of promoting action within the realm of that which enables the fulfillment of basic human goods. 462 The limits of moral prohibitions, Professor George writes, are defined by that point at which the natural difficulty of satisfying the moral prohibition, given human inclination to vice, will lead to negative attitudes, hardness of hearts, and rebellion—in other words, to greater harm than good. 463 Private virtue is nonetheless necessary, for without it there will be an unacceptable degradation of public and private life. 464 Where Professor George disagrees with Aristotle and Aquinas is in accepting that there should be greater personal freedom with tighter limits on law’s coercive power than that which Aristotle and Aquinas would have accepted. 465 Professor George finds in the diversity of basic forms of good a range of valid pluralism. 466 He explicitly rejects on the ground of both principle (reason) and experience (historical) the relativist view that good is so radically diverse as to authorize any conduct whatsoever in which people happen to think of engaging. 467 Professor George calls his concession a non-relativistic, value pluralism. 468 He does not reject in any sense that we should strive for moral perfection. Indeed, he writes that “a sound pluralistic perfectionism” is not only necessary to basic social order but, moreover, “provides the most excellent reasons for respecting and protecting basic civil liberties.” 469 In other words, morality is the basis not only for the reasonable restriction of freedoms so as to prevent injury and promote the greater good, but also for the right to exercise reasonable freedoms. Professor George acknowledges that diversity, liberty, and privacy are important conditions to attain many basic human goods. 470 Morality makes for a sounder foundation for these civil liberties than does any putative right, which Professor George explicitly rejects, 471 to commit vice. Neither diverse liberty

462. 463. 464. 465. 466. 467. 468. 469. 470. 471.

Id. Id. at 32. Id. at 38. Id. Id. Id. Id. Id. at 190. Id. Id. at 191.

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nor uniformity can justify a law or ethic. 472 There cannot, for instance, be an ethically valid diversity of views on slavery. 473 Nor can there be an ethically valid uniformity of views on the choice of an ice cream flavor. 474 Both diversity and uniformity are purely conditional as values. 475 Professor George elaborates: Those freedoms we as Americans especially cherish, including the freedom of speech, press, assembly, and religion, are all better founded on the pursuit of the ideal of moral perfection than on conditional diversity or liberty because each of those freedoms are necessary (within reasonable limits) to moral perfection. 476 Professor George’s pluralistic perfectionism enables us to accept civil liberties as founded on strong moral rights, without requiring us to dispose of our reason to implausibly embrace obviously harmful exercises of those liberties. 477 Professor George further defended what he and others call this “new” natural law theory in his 1999 book In Defense of Natural Law. 478 Natural law in this post-modern sense consists first of a principle directing us toward inherent human goods; second, of intermediate moral principles helping to direct those choices; and third, of fully specific moral norms that must ordinarily (and sometimes without exception) not be violated. 479 The Golden Rule and Pauline Principle 480 mediate our natural feelings to abandon the pursuit of that first principle. The three levels of natural law (first principle, intermediate principles, and specific norms) quite commonly work together, both at conscious and nearly subliminal levels, in all rational agents. 481 It is, in other words, how we all operate ethically and morally. Does it still—or once again—make sense to you, notwithstanding modern departures from this historic ethic? IV. MORALITY

472. Id. 473. Id. 474. Id. 475. Id. 476. Id. at 192-221. 477. Id. at 229. 478. ROBERT P. GEORGE, IN DEFENSE OF NATURAL LAW (Oxford Univ. Press 1999) [hereinafter IN DEFENSE]. 479. Id. at 102. 480. Id. at 103; see GEORGE, supra note 444, at 17. 481. IN DEFENSE, supra note 479, at 104-05.

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As shown in the Introduction above, the ABA’s Model Rules of Professional Conduct encourage lawyers to advise clients on the moral dimensions of their legal concerns. 482 What are the legal profession’s ennobling morals? The purpose of this Part IV simply cannot be to comprehensively describe all of the major moral and religious influences on lawyers and their clients and the way in which they incorporate or fail to incorporate them into that professional relationship. Because the topic is so vast and complex, it can only be to suggest some of the likely influences and major themes from some of the better-known moral texts. But first, it may be helpful to dispel some misconceptions and biases. Moral influences on the law are as ancient as law itself. The Code of Hammurabi 483 is generally regarded to be the oldest complete set of laws that have been recovered, though there are several wellknown fragments of older laws, including the Laws of Eshnunna 484 and Code of Lipit-Ishtar. 485 Hammurabi’s Code is not a code in the modern sense. It is certainly not a collection of legislative edicts. Rather, it is written in the form of a series of statements by the ruler Hammurabi himself, almost as if he were deciding individual cases. 486 In that sense, it is much more like a compendium of our common law: reflecting authoritative decisions, to be sure, but not necessarily setting forth fundamental principles. Instead, the statements relate to specific circumstances. 487 The entire Code of Hammurabi appears largely intact on a great dark stone stele now preserved on display in the Louvre. 488 The Code includes tort law, contract law, family law, criminal law, and other specific legal provisions. 489 But it is the Code’s introduction or preamble which justifies law itself from a moral and religious standpoint. Like our own Declaration of Independence, Hammurabi’s legal code begins with divine references, confirming the connection between law, morality, and religion. 490 A common, but probably 482. MODEL RULES OF PROFESSIONAL CONDUCT R.2.1 (2004 ed.). 483. ROBERT FRANCIS HARPER, THE CODE OF HAMMURABI: KING OF BABYLON ABOUT 2250 B.C. (Robert Francis Harper trans., Univ. of Chi. Press 1994) (1904). 484. Wikipedia, Cuneiform Law, at http://en.wikipedia.org/wiki/Cuneiform_Law (last modified Sept. 24, 2005). 485. Id. 486. See generally HARPER, supra note 484. 487. See id. 488. Wikipedia, Code of Hammurabi, at http://en.wikipedia.org/wiki/Code_of_Hammurabi (last modified Nov. 14, 2005). 489. Id. 490. See HARPER, supra note 484, at 3.

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mistaken, view associated with Justice Holmes and others is that law was once all mixed up with religion and that secular societies have developed only recently as man has gradually overcome his superstitious nature. 491 But scholars believe that Hammurabi’s Babylonian society was largely secular in nature and that it was only with the coming of the Jews some centuries later that thorough-going theocracies developed. 492 And, of course, dozens of Muslim countries around the world are currently under the rule of Islamic law, 493 which might well give lie to the secularizing notion. In any case, Hammurabi’s Code begins with an impressive litany of the two dozen or more gods and their relations and accomplishments in the Babylonian pantheon, justifying that Hammurabi “go forth like the Sun over the Black Head Race, to enlighten the land and to further the welfare of the people.” 494 At points, Hammurabi’s Code does refer to a single God. 495 But the “God” to whom Hammurabi’s Code refers was a pantheon, Marduk, not to Abraham’s universal, omniscient, creator God of the Jew and Christian or Islam’s Allah. 496 Indeed, the Babylonian cosmology under which Hammurabi promulgated his Code is said to have been quite distinct from that of our own. 497 Babylonians would attempt either to escape the notice of their many gods or to appease them. 498 Babylonians had no expectation of eternal judgment by an omniscient, holy God, and consequently, they lacked the critically important ethic of the kind embraced by the Jewish, Christian, and Muslim faiths. 499 There are yet great similarities between Hammurabi’s morals and our own as 491. J.J. FINKELSTEIN, THE OX THAT GORED 48-49 (1981) (citing H. KELSEN, GENERAL THEORY OF LAW AND STATE 3 (1945), and OLIVER WENDELL HOLMES, THE COMMON LAW (1881)). 492. ANNE FITZPATRICK-MCKINLEY, THE TRANSFORMATION OF TORAH FROM SCRIBAL ADVICE TO LAW 49 (1999). 493. Wikipedia, Sharia, at http://en.wikipedia.org/wiki/Sharia (last modified Nov. 19, 2005).0 494. See HARPER, supra note 484, at 3. 495. Yale Law School, The Avalon Project: The Code of Hammurabi (L. W. King trans.), at http://www.yale.edu/lawweb/avalon/medieval/hamcode.htm (last corrected Nov. 20, 2005). 496. Wikipedia, Marduk, at http://en.wikipedia.org/wiki/Marduk (last modified Nov. 17, 2005); Wikipedia, Abraham, at http://en.wikipedia.org/wiki/Abraham (last modified Nov. 18, 2005). 497. Wikipedia, Babylonian and Assyrian Religion, at http://en.wikipedia.org/wiki/Babylonian_and_Assyrian_religion (last modified Oct. 28, 2005) [hereinafter Babylonian and Assyrian Religion]. 498. FINKELSTEIN, supra note 492, at 12. 499. Babylonian and Assyrian Religion, supra note 498.

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they might affect legal behavior. The introduction to the Code clearly recognizes the significance of “righteousness” and just as clearly distinguishes between good and evil; exaltation and debasement; and right and wrong. 500 Scholars of history and government attribute the success of Hammurabi’s reign in large part to his overriding concern for the oppressed, shown by his desire “to destroy the wicked and the evil, to prevent the strong from oppressing the weak,” 501 combined with a gift for civil administration which made that goal achievable. 502 Demonstrably, it may have been significantly safer in Hammurabi’s day for a woman or child to traverse the region than it is today. Ultimately, Hammurabi chose “to further the welfare of the people” as his legal mission. 503 It appears to have been, in all, a quite ennobling morality-based legal ethic. Consider now a much better known moral-based legal convention: the Ten Commandments, or Decalogue, recorded both at Exodus 20 and in a subsequent book of the Jewish Torah (the first five books of the Bible’s Old Testament), Deuteronomy. 504 The Ten Commandments were given to Israel’s deliverer, Moses, on Mount Sinai at the beginning of Israel’s 40 years of wandering in the wilderness, which occurred just after Israel left Egypt and before it entered the land it was promised. 505 They were recorded on two stone tablets by the finger of God and, when Moses destroyed those tablets in anger over the Israelites’ sin, were carved into two more stone tablets by Moses 506—and, millennia later, into the United States Supreme Court’s edifice. 507 The Ten Commandments are followed in Exodus by the subsequent books of Leviticus, Numbers, and Deuteronomy laying down rules to live by, 508 essentially creating for the Israelites their own distinct legal culture. It is often said that the first four of the Ten Commandments deal with our relationship to God, requiring that we respect him above any other. 509 The last five 500. See HARPER, supra note 484, at 3. 501. Id. 502. E.A. WALLIS BUDGE, BABYLONIAN LIFE AND HISTORY 35 (1897). 503. HARPER, supra note 484, at 3. 504. 11 THE NEW ENCYCLOPEDIA BRITANNICA 627 (15th ed. 2002). 505. Deuteronomy 5:22, 6:10, 6:12, 8:2 (King James). 506. Deuteronomy 9:10, 9:16-17, 10:4 (King James). 507. Human Events Online, Exclusive Photo Essay: God in the Temples of Government: Part I (Nov. 4, 2005), at http://www.humaneventsonline.com/article.php?id=2441. 508. See generally Exodus 20:1-21; Leviticus; Numbers; Deuteronomy 5:1-21. 509. See Wikipedia, Ten Commandments, at http://en.wikipedia.org/wiki/Ten_Commandments (last modified Nov. 20, 2005).

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of the Ten Commandments are proscriptions regarding our relationships with one another—against murder, adultery, theft, perjury, and covetousness. 510 These proscriptions may sound relatively narrow and, therefore, easy to practice for a lawyer or a client, until one considers Jesus’ later admonition that to be angry with a brother may be the moral equivalent of murder, or to look with desire at a woman the moral equivalent of adultery. 511 For those unfamiliar with the actual text, the Ten Commandments record simply: And God spoke all these words: ‘I am the LORD your God, who brought you out of Egypt, out of the land of slavery. ‘You shall have no other gods before me. ‘You shall not make for yourself an idol in the form of anything in heaven above or on the earth beneath or in the waters below. You shall not bow down to them or worship them; for I, the LORD your God, am a jealous God, punishing the children for the sin of the fathers to the third and fourth generation of those who hate me, but showing love to thousands who love me and keep my commandments. ‘You shall not misuse the name of the LORD your God, for the LORD will not hold anyone guiltless who misuses his name. ‘Remember the Sabbath day by keeping it holy. Six days you shall labor and do all your work, but the seventh day is a Sabbath to the LORD your God. On it you shall not do any work, neither you, nor your son or daughter, nor your manservant or maidservant, nor your animals, nor the alien within your gates. For in six days the LORD made the heavens and the earth, the sea, and all that is in them, but he rested on the seventh day. Therefore the LORD blessed the Sabbath day and made it holy. ‘Honor your father and your mother, so that you may live long in the land the LORD your God is giving you. 510. Id. 511. Matthew 5:22, 28.

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‘You shall not murder. ‘You shall not commit adultery. ‘You shall not steal. ‘You shall not give false testimony against your neighbor. ‘You shall not covet your neighbor’s house. You shall not covet your neighbor’s wife, or his manservant or maidservant, his ox or donkey, or anything that belongs to your neighbor.’ 512 The Old Testament book of Proverbs, from chapters Two to Four, is an appropriate next consideration, for as indicated briefly above, the Jews had a far more comprehensive moral ethic than that set forth in the Ten Commandments. 513 At least one recent writer has recognized that “[t]he Old Testament book of Proverbs supplied foundational moral values for our nation’s legal ethics[,]” even though “[w]ith the adoption and revision of formal codes, moral teaching has virtually disappeared from legal ethics.” 514 Proverbs, along with Psalms and Ecclesiastes, is one of the Jewish writings following the histories and preceding the prophets in the Old Testament. 515 It is accepted primarily as a collection of the wisdom of the great King Solomon. 516 Three chapters of Proverbs concerning the moral benefit of wisdom introduce the long list of couplet aphorisms for which the book is better known. 517 The values they inculcate include justice, mercy, humility, honesty, and civility—all as aspects of wisdom. 518 Moderns define wisdom as knowledge sensibly promoting a right course in action. 519 Proverbs attributes both the source and benefit of wisdom to the knowledge, fear, and understanding of God, who created the

512. Exodus 20:1-17. 513. Proverbs 2:1-4:27. 514. Gordon J. Beggs, Proverbial Practice: Legal Ethics from Old Testament Wisdom, 30 WAKE FOREST L. REV. 831 (1995). 515. See Mark Hamilton, The First Christians: From Hebrew Bible to Christian Bible, at http://www.pbs.org/wgbh/pages/frontline/shows/religion/first/scriptures.html (last visited Nov. 20, 2005). 516. See Proverbs 10:1-32; see also Wikipedia, Book of Proverbs, at http://en.wikipedia.org/wiki/Book_of_Proverbs (last modified Sept. 30, 2005). 517. Proverbs 1-3. 518. Id. 519. WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2624 (1981).

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universe through wisdom. 520 Instrumental benefits of wisdom include mental, emotional, and physical health, long life, and material prosperity. 521 Correction is not to be resented or avoided but appreciated, perhaps even treasured. 522 Our attention must be turned to sound judgment and discernment. 523 Nor should we withhold good from our neighbors who deserve it. 524 In sum, Proverbs admonishes us with the ennobling ethic: ‘Lay hold of my words with all your heart; keep my commands and you will live. Get wisdom, get understanding; do not forget my words or swerve from them. Do not forsake wisdom, and she will protect you; love her, and she will watch over you. Wisdom is supreme; therefore get wisdom. Though it cost all you have, get understanding. Esteem her, and she will exalt you; embrace her, and she will honor you. She will set a garland of grace on your head and present you with a crown of splendor.’ 525 Yet, America’s common morality has far more urgent calls to law and justice than the sweet beckoning of Proverbs. Isaiah was the first and foremost among the Jewish major prophets. 526 Christians take sections of the book of Isaiah in the Old Testament as a foreshadowing of Jesus Christ. 527 But Isaiah is also a book about individual and personal justice—about ethics. One of its principal calls to justice seems a veritable warning to the legal profession: “No one calls for justice; no one pleads his case with integrity. They rely on empty arguments and speak lies; they conceive trouble and give birth to evil.” 528 But Isaiah’s warnings go also to our clients, that “[t]he way of peace they do not know; there is no justice in their 520. Proverbs 2:5. 521. Id. at 3:2. 522. See id. at 12:1. 523. Id. at 3:21. 524. Id. at 3:27. 525. Id. 4:4-9. 526. New Advent, Isaias, at http://www.newadvent.org/cathen/08179b.htm (last updated Oct. 6, 2005). 527. HENRIETTA C. MEARS, WHAT THE BIBLE IS ALL ABOUT: THE LIVING BIBLE EDITION 186-89 (1987). 528. Isaiah 59:4.

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paths.” 529 Instead, our clients “have turned them into crooked roads; no one who walks in them will know peace.” 530 As a result, justice is far from us, and righteousness does not reach us. We look for light, but all is darkness; for brightness, but we walk in deep shadows. Like the blind we grope along the wall, feeling our way like men without eyes. At midday we stumble as if it were twilight; among the strong, we are like the dead. We all growl like bears; we moan mournfully like doves. We look for justice, but find none; for deliverance, but it is far away. 531 Clients can certainly take comfort from a lawyer telling them frankly that they have made for themselves a crooked path and that it is the lawyer’s role to help restore them to a path on which they can walk in peace. Crime, fraud, domestic disorder, vandalism, discrimination, simple ordinance violations, and other legal wrongs have a palpable physical presence. One can readily see, hear, and feel the evidence in communities in which justice is not present. “[T]ruth has stumbled in the streets, honesty cannot enter[,]” Isaiah continues. 532 “The LORD looked and was displeased that there was no justice” 533—so lawyers have a personal accountability. “He saw that there was no one, he was appalled that there was no one to intercede” 534—so lawyers have a role. And in that role, they will have the benefit of this very wisdom because: “As for me, this is my covenant with them,” says the LORD. “My Spirit, who is on you, and my words that I have put in your mouth will not depart from your mouth, or from the mouths of your children, or from the mouths of their descendants from this time on and forever,” says the LORD. 535

529. 530. 531. 532. 533. 534. 535.

Id. at 59:8. Id. Id. at 59:9-11. Id. at 59:14. Id. at 59:15. Id. at 59:16. Id. at 59:21.

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It is unmistakably our personal and professional ethic as lawyers that we must give sound counsel to our clients. Another of the Jewish prophets, Ezekiel, characterized our role as watchmen for those who in their sin need our counsel. 536 Ezekiel wrote immediately before and during the siege of Jerusalem and during the exile of the Jews to Babylon—a few hundred years after Isaiah but still several hundred years before Christ. 537 Much of his writing addressed that troubling historical time in Israel when the glory of the conquered nation appeared to have all but disappeared in judgment for the sins described above by Isaiah. 538 How does this history become professional and personal? Ezekiel warned that the one who continues to do wrong will die in judgment. 539 But what makes it personal to us as lawyers, and not merely professional, is that so, too, will the watchman die if the warning is not given. And it is not our own warning we must give, but a warning from the one who judges rightly and would have us, for our own benefit, follow that right judgment: When I say to the wicked, ‘O wicked man, you will surely die,’ and you do not speak out to dissuade him from his ways, that wicked man will die for his sin, and I will hold you accountable for his blood. But if you do warn the wicked man to turn from his ways and he does not do so, he will die for his sin, but you will have saved yourself. Son of man, say to the house of Israel, ‘This is what you are saying: “Our offenses and sins weigh us down, and we are wasting away because of them. How then can we live?”’ Say to them, ‘As surely as I live, declares the Sovereign LORD, I take no pleasure in the death of the wicked, but rather that they turn from their ways and live. Turn! Turn from your evil ways! Why will you die, O house of Israel?’ Therefore, son of man, say to your countrymen, ‘The righteousness of the righteous man will not save him when he disobeys, and the wickedness of the wicked man will not cause him to fall when he turns from it. The righteous man, if he sins, will not be allowed to live because of his former righteousness.’ If I tell the righteous man that he will surely live, but then he trusts in his righteousness and does evil, none of the righteous things he has done will be remembered; he will die for the evil he 536. 537. 538. 539.

See Ezekiel 33:1-7. See MEARS, supra note 528, at 213-19. See Ezekiel 33:1-7. Id. at 33:4, 9.

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has done. And if I say to the wicked man, ‘You will surely die,’ but he then turns away from his sin and does what is just and right—if he gives back what he took in pledge for a loan, returns what he has stolen, follows the decrees that give life, and does no evil, he will surely live; he will not die. None of the sins he has committed will be remembered against him. He has done what is just and right; he will surely live. 540

Of what, more specifically, are we to warn our clients in this moral ethic? Jesus’s Sermon on the Mount, recorded in Matthew, 541 is the most comprehensive statement of practical and ethical Christian teaching. His Sermon on the Mount begins with what are known as the Beatitudes—“blessed are.” 542 The Beatitudes outline a moral ethic quite contrary to the world’s materialist ethic. 543 Consider the Beatitudes as interpreted in today’s idioms by Eugene Peterson in his 1995 translation The Message: 544 ‘You’re blessed when you’re at the end of your rope. With less of you there is more of God and his rule. ‘You’re blessed when you feel you’ve lost what is most dear to you. Only then can you be embraced by the One most dear to you. ‘You’re blessed when you’re content with just who you are—no more, no less. That’s the moment you find yourselves proud owners of everything that can’t be bought. ‘You’re blessed when you’ve worked up a good appetite for God. He’s food and drink in the best meal you’ll ever eat. ‘You’re blessed when you care. At the moment of being “care-full,” you find yourselves cared for. ‘You’re blessed when you get your inside world—your mind and heart—put right. Then you can see God in the outside world.

540. Id. at 33:8-16. 541. Matthew 5-7. 542. Matthew 5; see also KENNETH C. DAVIS, DON’T KNOW MUCH ABOUT THE BIBLE: EVERYTHING YOU NEED TO KNOW ABOUT THE GOOD BOOK BUT NEVER LEARNED 375 (1998). 543. See DAVIS, supra note 543, at 381. 544. EUGENE H. PETERSON, THE MESSAGE (Terry Behimer et al. eds., 2002).

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‘You’re blessed when you can show people how to cooperate instead of compete or fight. That’s when you discover who you really are, and your place in God’s family. ‘You’re blessed when your commitment to God provokes persecution. The persecution drives you even deeper into God’s kingdom. 545 Lawyers and clients today might say they are “lucky” when avoiding trouble, but Jesus was conveying a providential rather than probabilistic ethic. Our clients are likely to prosper—be “blessed” mentally, emotionally, physically, and materially—when they get their “inside world” right, which neatly states the challenge and opportunity for lawyers in counseling clients. There is no question that Jesus was substantially raising the ethical stakes. Referring to the Ten Commandments’ admonition not to murder, Jesus said (again, in Peterson’s translation), “I’m telling you that anyone who is so much as angry with a brother or sister is guilty of murder.” 546 Referring to the commandment not to commit adultery, Jesus said that a lustful leer can bring the same judgment. 547 In Peterson’s translation, Jesus warns, “Let’s not pretend this is easier than it really is.” 548 About the too-frequent Jewish practice of divorce, Jesus said, “You can’t use legal cover to mask a moral failure.” 549 Much of the rest of the Sermon on the Mount gives similarly specific examples in different social contexts of what Jesus meant by this extraordinary moral ethic. 550 No more manipulating words. 551 Let your yes be yes and your no be no. 552 Watch your language. 553 Words kill. 554 Perhaps it is so that special insight can teach a previously hardened lawyer how to speak in a manner that does not wound and destroy yet carries with it the weight and authority necessary to provide effective representation. As Jesus suggests, one of those insights is to always 545. Id. at 1750-51(translating Matthew 5:3-10). 546. Id. at 1752 (translating Matthew 5:22). 547. Id. (translating Matthew 5:28). 548. Id. (translating Matthew 5:29-30). 549. Id. at 1753 (translating Matthew 5:31-32). 550. See DAVIS, supra note 543, at 381-82. 551. Matthew 5:37 (The New English Bible). 552. PETERSON, supra note 545, at 1753 (translating Matthew 5:36-37). 553. Ephesians 4:29 (The New English Bible); Proverbs 21:23 (The New English Bible); see also JOSEPH TELUSHKIN, BIBLICAL LITERACY 484 (1997). 554. Proverbs 13:3 (The New English Bible).

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speak with care and without the intent to denigrate another. 555 Speech should be simple, true to our intentions, unembellished, and free from hypocrisy. Jesus gave lawyers the moral ethic for dealing with adversaries and with money: to love the former and not the latter. 556 The popular, and one might say—especially in the legal profession— prevalent, ethics are, of course, the direct contrary: to injure enemies while accumulating money. Jesus was clearly saying to think of what you want and then do it for others—in Peterson’s translation, to “[a]sk yourself what you want people to do for you, then grab the initiative and do it for them.” 557 Much the same Golden Rule is recorded in a clearer fashion in Matthew 22:39 where Jesus says to “[l]ove your neighbor as yourself.” 558 But to Jesus, his words meant much more than making incremental improvements to our own ethic. Jesus was careful to warn near the end of the Sermon on the Mount that his words were foundational, not cosmetic, and that he would be the final judge of the genuineness and depth of our work ethic. 559 It was an extraordinary challenge he presented, not to regard him as merely a good or even great or revolutionary ethical teacher, which he rejected. 560 Jesus gave a parable in which the sheep, which follow his teachings by feeding the hungry, caring for the sick, and visiting the prisoner, are separated from the goats that did not do so and, as a result, are cast into hell. 561 Jesus told another parable of a beggar called to heaven, separated by a wide chasm from the rich person cast into hell. 562 For the majority of Americans who acknowledge Jesus to be their divine moral teacher and Christianity to be their religion, obedience to his ethic was meant to have eternal, not merely temporal, consequences. It was, as Peterson paraphrased Jesus saying in the Sermon on the Mount, time to stop fooling around and grow up. 563 One need not look far beyond Jesus for a model Christian ethicist of incomparable influence. Paul of Tarsus was a Pharisaic Jew involved in the merciless persecution of Christians before his 555. Proverbs 20:18-19 (The New English Bible). 556. Matthew 6:24. 557. PETERSON, supra note 545, at 1756 (translating Matthew 7:12) (emphasis added). 558. Matthew 22:39 (The New English Bible). 559. See Matthew 7:21-23. 560. See Luke 18:18-19. 561. Matthew 25:31-46. 562. Luke 16:19-26. 563. PETERSON, supra note 545, at 1753 (translating Matthew 5:48).

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dramatic conversion to Christianity through an appearance of Christ on the road to Damascus not many years after Christ’s crucifixion. 564 Paul not only had an intimate knowledge of the Jewish law, he had an intense desire to fulfill it. 565 He described himself as a Pharisee’s Pharisee, when the Pharisees were the Jews’ ruling law-keepers. 566 The law of which we speak had the capacity of both civil and criminal law—to fine, imprison, impose liability, and to punish by death. 567 Paul was actively engaged in carrying out that law 568 and so, in that limited respect, might be thought of as a lawyer or prosecutor. He was among those who condemned the first Christian martyr, Stephen. 569 It is clear that Paul had everything to do with interpreting and enforcing moral and ethical standards. Paul also had an intimate familiarity with Jesus, both by appearance as well as through Paul’s persecution and later support of those who had known Christ before and after his crucifixion and resurrection. 570 After his conversion, Paul became the literal and figurative interpreter to the world of the then heavily Jewish-influenced Christianity. 571 In his writings, Paul deduces and explains what is expected and required of us both from a deep knowledge of the perfect law as well as from the life of the perfect human who embodied it. 572 Paul’s writings consist of eleven or twelve letters (depending on the attribution of Hebrews) taken as books of the Bible’s New Testament, following the four gospels and a history of the early church. 573 Paul’s letters are more than ordinary correspondence. They are doctrinal expositions and exhortations intended to be read widely and shared. Paul’s writings are so rich that

564. Acts 9:1-30. 565. Acts 22:3-6 (The New English Bible). 566. Acts 22:3-5. 567. See Ezra 7:25-26 (The New English Bible); see also II Kings 14:5-7 (The New English Bible); TELUSHKIN, supra note 554, at 405-08, 447-48, 493. 568. Acts 22:4-5. 569. Id. at 8:1-3. 570. Acts 9:3-9, 20-22, 29 (The New English Bible); see also ALAN F. SEGAL, PAUL THE CONVERT: THE APOSTOLATE AND APOSTASY OF SAUL THE PHARISEE 6-7 (1990); NANCY M. TISCHLER, MEN AND WOMEN OF THE BIBLE: A READER’S GUIDE 197 (2002). 571. Acts 9:1-30 (The New English Bible); JEROME MURPHY-O’CONNOR, PAUL: A CRITICAL LIFE 79-80 (1996). 572. Romans 2:12-15 (King James). 573. Holy Bible, Summary of the Books of the Bible, at http://www.holybible.com/resources/KJV_DFND/summary.htm (last visited Nov. 20, 2005).

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only a very rough sketch of some of them on a few limited subjects is possible here on the problem, source, and solution of ethics. The central problem of any morality—lawyer or client—is right action or, in a moral language, “righteousness.” Paul places the source of righteousness with God. 574 We have no excuse for not knowing what is required of us, because we understand the qualities of God from what he has created, Paul writes. 575 Indeed, Jesus gave us an exact representation of what God is like, so much so that as we come to know him, we are transformed into his righteousness. 576 When we choose not to retain knowledge of God, we are gradually given over to self-seeking, sensual pursuits leading to depravity. 577 Thus, our ambition should be to think about those things that are pure, admirable, noble, and trustworthy. 578 We must watch what we think and believe and then persevere in what we believe, for by doing so we will save ourselves as well as those, like our clients, who hear us. 579 There will, of course, be trials and challenges, but it is precisely through such troubles and by our continuing faith when we are weakest that we achieve the eternal ethic. So we should persevere, fixing our attention not on the temporary material things, but on the eternal unseen ethic. 580 You should “[d]o everything without complaining or arguing, so that you may become blameless and pure, children of God without fault in a crooked and depraved generation, in which you shine like stars in the universe[,]” Paul writes. 581 Specifically as to the law, there is a natural law which we know of our own conscience, Paul writes. 582 But law itself does not give us righteousness because law only has the power to condemn—to show us what we are doing wrong. 583 To be ethical and moral, and to be released from the condemnation of law, code, rule, and regulation, we must serve in the new way of the Spirit of God. 584 “[F]or the letter kills, but the Spirit gives life[,]” Paul adds. 585 When we serve in that new way, we exhibit love and all of its various attributes, including 574. 575. 576. 577. 578. 579. 580. 581. 582. 583. 584. 585.

Romans 1:17. Id. at 1:20. II Corinthians 3:18. Romans 1:28, 2:8. Philippians 4:8. I Timothy 4:16. II Corinthians 4:16-17. Philippians 2:14. Romans 2:14-15. Id. at 3:20, 7:10; I Corinthians 15:56. Romans 7:6. II Corinthians 3:6.

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joy, peace, patience, kindness, goodness, faithfulness, gentleness, and self-control—things against which there is no law and as to which there is no limit. 586 That is not to say that any one of us is better than another. To the contrary, all have fallen short and are instead justified by God’s willingness not to judge us according to those shortcomings. God instead allowed the tortuous crucifixion of the blameless Jesus, and enabled us to claim that punishment as our own, as a way to keep his justice perfect. 587 It is our voluntary association with Jesus that both removes blame from us, freeing us from burdensome guilt and condemnation, and gives us the motive to follow the perfect ethic. 588 In other words, the ethic is achieved not so much by human effort as by being sure of what and in whom we believe, Paul writes. 589 As to wrongdoing, Paul writes that it is quite natural, for evil is constantly “right there with me.” 590 There is no sense pretending we are perfect because God knows what we think, and what we think will be reflected for all to see in our actions. 591 And so there are a lot of activities in which we could engage without immediate condemnation, but we are wise to avoid them anyway so that we are not mastered by them. 592 It is not that we cannot resist, just the opposite: God always gives us the power to resist what tempts us. 593 But on the whole, “[b]ad company corrupts good character[,]” Paul writes. 594 Indeed, in counseling our clients we must avoid being bad company ourselves. “Do not let any unwholesome talk come out of your mouths, but only what is helpful for building others up according to their needs, that it may benefit those who listen[,]” Paul writes. 595 “Have nothing to do with the fruitless deeds of darkness, but rather expose them[,]” Paul adds. 596 In this ethic, there are certain things we must avoid; for instance, “the love of money is a root of all kinds of evil.” 597 It will be easy to see human loss and degradation all around us because 586. 587. 588. 589. 590. 591. 592. 593. 594. 595. 596. 597.

Galatians 5:22-23. See Romans 3:22-26. See Galatians 5:1-6 (King James). See Galatians 3:3; Hebrews 11:1, 6 (attribution disputed). Romans 7:21-23. I Corinthians 4:5. See id. at 6:12. See id. at 10:13. Id. at 15:33. Ephesians 4:29. Id. at 5:11. I Timothy 6:10.

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[p]eople will be lovers of themselves, lovers of money, boastful, proud, abusive, disobedient to their parents, ungrateful, unholy, without love, unforgiving, slanderous, without self-control, brutal, not lovers of the good, treacherous, rash, conceited, lovers of pleasure rather than lovers of God—having a form of godliness but denying its power. 598

“Have nothing to do with them[,]” Paul writes. 599 Indeed, in a self-centered and humanist age, people will gradually become lawless, and so doomed to destruction, by opposing and exalting themselves over everything that is called God until they have proclaimed themselves to be God. 600 But for the minority of us who place our trust in the words, teaching, and life of Jesus, there will be no destruction or condemnation, Paul writes. 601 And so what are we to do? Or more pointedly, how are we to know what to do? Paul answers, Therefore, I urge you, brothers, in view of God’s mercy, to offer your bodies as living sacrifices, holy and pleasing to God—this is your spiritual act of worship. Do not conform any longer to the pattern of this world, but be transformed by the renewing of your mind. Then you will be able to test and approve what God’s will is—his good, pleasing and perfect will. 602

We will know how to train in this right moral ethic by what has been written, Paul explains. 603 What has been written is more than just words: it is living and active within us, judging our thoughts and the attitude of our hearts when we give it permission. 604 We must subject ourselves to authority, be obedient, be ready to do good whenever we see it, not slander anyone, be peaceful and considerate, and show humility toward everyone. 605 Those who seem wise (perhaps including law professors) will be frustrated by the written message. 606 For the right message is simple and powerful, not articulate or persuasive. 607 It is certainly not the conventional wisdom

598. 599. 600. 601. 602. 603. 604. 605. 606. 607.

II Timothy 3:2-5. Id. at 3:5. II Thessalonians 2:3-4. Romans 8:1. Id. at 12:1-2. See II Timothy 3:16. Hebrews 4:12. Titus 3:1-2. I Corinthians 1:19. Id. at 2:4.

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of today, which is coming to nothing. 608 “Do not deceive yourselves. If any one of you thinks he is wise by the standards of this age, he should become a ‘fool’ so that he may become wise[,]” Paul warns. 609 He further admonishes “Knowledge puffs up, but love builds up. The man who thinks he knows something does not yet know as he ought to know.” 610 We must not be taken captive by hollow and deceptive philosophies that are contrary to what Jesus taught, Paul warns again. 611 On the whole, one can see that Paul offers a thorough analysis and explication of the minority ethical doctrine (as opposed to the dominant materialist ethic) in American law today. How related are these morals to law? One fairly recent author published by the Harvard University Press wrote that “the history of Western law, and especially its origins, reveals its rootedness in the deepest beliefs and emotions of a people. Without the fear of purgatory and the hope of the Last Judgment, the Western legal tradition could not have come into being.” 612 Thus, no study of morality-based legal ethics would be complete without some appreciation for the extent to which devotion to an ethical ideal can be taken—without some look at one of the acknowledged saints. Augustine (354-430 A.D.) 613 is certainly a suitable study, and not because of his achievements, though as perhaps the greatest of the Catholic Church fathers, they were great. His writings not only established a millennium’s worth of law and theology, but became the ethical and even cultural bridge from antiquity to modernity. 614 Even so, it is Augustine’s humility (the appreciation he had for the depravity of his own condition) and his ability to describe the depravity of a society and nation (that of Rome) without morals that marks Augustine as worthy of study. Thus, after Augustine’s early education under a very strong Catholic mother, 615 his teenage youth was misspent, much as one might expect of any contemporary youth, in the roving pursuit of lusts 608. Id. at 2:6. 609. Id. at 3:18. 610. Id. at 8:1-2. 611. Colossians 2:8. 612. HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION 558 (1983). 613. Wikipedia, Augustine of Hippo, at http://en.wikipedia.org/wiki/Augustine_of_Hippo (last modified Nov. 17, 2005). 614. Id. 615. See generally AUGUSTINE, THE CONFESSIONS OF SAINT AUGUSTINE bk. 1 (E.M. Blaiklock trans., Hodder & Stoughton eds., 1983) (400 A.D.) [hereinafter CONFESSIONS].

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and theft with boyhood companions. 616 Late in his youth, Augustine took flight from his mother’s influence to the cosmopolitan Carthage, where he lived and had a son with a young woman (whom he later abandoned), enjoyed the licentious baths and theater, and turned his unusual intensity of mind to participation in a Manichaean sect made up of a mix of orthodox and unorthodox faiths. 617 Augustine described his mother as persistently and tearfully entreating a Church bishop to speak sense to her lost son during this period. 618 We then see the depth of Augustine’s recognition of his own depraved condition and, moreover, the regard he had for the one who saved him from that condition: But our life came down here and took away our death, and out of his own life’s abundance he killed it, and with voice of thunder calls us to return to him in that secret place whence he came out to us, first into the Virgin’s womb, where humanity was wed to him, mortal flesh not for every mortal. And thence “like a bridegroom proceeding from his chamber, he leaped like a mighty man about to run a race.” He delayed not, but ran, with his message proclaimed in deeds, words, death, life, descent, ascent, to return to him. And he withdrew from our eyes, that we might return to out hearts to discover him. For he went away, and yet, see, he is still here. He would not long be with us, but he has not left us. He went away to the place whence he never departed, because the world was made by him and he was in the world, into which he came to save sinners. To him my soul confesses, and he heals it because it sinned against him. Sons of men, how long will you be slow of heart? Will you not now, after life has come down to you, rise up and live! But whither ascend, since you are already uplifted, your head set against the heavens? Come down, that you may rise up, even up to God, for you have fallen in your rising against God. Tell them this, that they may lament in this vale of lamentation, and so snatch them with you to God, for it is by his Spirit you speak thus to them, if you speak ablaze with the fire of love. 619

Augustine later gave us a summary glimpse of how his studies in philosophy did little more for him than show him how awful his condition would be if he truly lived by them, and without the one who

616. 617. 618. 619.

Id. bk. 2, at 45-46. See generally id. at bk. 3. Id. bk. 3, at 72-73. Id. bk. 4, at 91-92.

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saved him from them. 620 Finally, Augustine described some of the torment he went through resisting what for him became the saving truth: Then in that mighty conflict of my inner dwelling place, which I had strongly stirred up in the chamber of my heart, troubled in both face and mind, I assailed Alypius. I cried: “What is wrong with us? What is this you have heard? The learned rise and take heaven by storm, and we, with out learning, see where we wallow in flesh and blood. Are we ashamed to follow because others have gone ahead, and not ashamed not to follow at all?” Some such words I said, and my fever tore me away from him while he, looking at me with astonishment, said nothing. I did not sound like myself. Forehead, cheeks, eyes, colour, the level of my voice gave expression to my mind more than the words I uttered. A small garden was attached to our dwelling, and we had freedom to use it, as indeed, the whole house, for the master of the house, our host, did not live on the premises. To the garden, the tempest in my breast snatched me. There no one would hinder the fiery disputation I had begun against myself until its consummation, known already to you, but not to me. I was only healthily mad, dying in order to live, knowing what an evil thing I was, but not knowing what good thing I was about to be. So I went off into the garden with Alypius following close behind. His presence did not make my privacy the less, and how could he desert me in so disturbed a state? We sat as far away from the house as we could. I groaned in spirit, tempestuously indignant that I was not surrendering to your will and covenant, my God, and which all my bones, praising it to high heaven, called out to me to do. Not only to go there, but also to arrive, asked for no more than the will to go. The way was not by ships, carriages or feet. It was not so far from the house as the place to which we had gone where we were sitting. It required no more than the will to go there, a resolute and thorough act of will, not to toss and turn this way and that, a half-maimed will, struggling, one half rising, one half sinking. 621

Augustine’s story should be encouraging and humbling— encouraging because he overcame his natural inclination to wrong to become an acknowledged saint and yet humbling because it shows how deeply we must appreciate our need for ethical reform in order to approach an appreciable morality. Indeed, in his later and equally 620. Id. bk. 7, at 176. 621. Id. bk. 8, at 197-98.

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well-known work The City of God, 622 Augustine described in vivid terms the depravity of pre-Christian Rome, mimicking his own early state. 623 It was a Rome in which royal worshippers imitated the criminal wickedness of their pantheon of gods, utterly without concern for the declining moral and material condition of their country. 624 The rich could take advantage of the poor, so long as the poor had barely enough to eat. 625 Anyone could do as he or she pleased with what they owned, including slaves, so long as it did not interfere with the pleasures of other propertied class members (slave owners). 626 A plentiful supply of public prostitutes was kept especially for those who could not afford their own, and lavish public entertainment of the most cruel and degraded kind further satisfied the masses, utterly without rights to the poor, oppressed, moral, ethical, or religious. 627 Augustine thus pictured for us the depravity of the individual (using himself as an example) without virtue, as well as the conditions of public life (using Rome as an example), when the society fully accepted that there should be no private virtue. 628 If Augustine was the ethicist’s bridge from antiquity to modernity, Thomas Aquinas (1225-1274) 629 may have been the first significant modern. Aquinas’s writings, and especially the Summa 630 Theologica, became the centerpiece of the Scholastic movement which dominated ethics and philosophy into the seventeenth and eighteenth centuries, until its dominant influence was gradually eroded by secular humanism. 631 Aquinas’s writings provided the intellectual foundation for the Dominican order and, in many respects, the larger Catholic Church; however, the writings also had an influence on scholarly thought well beyond the broad confines of 622. SAINT AUGUSTINE, The City of God, in 18 GREAT BOOKS OF THE WESTERN WORLD 129 (Marcus Dods trans., Robert Maynard Hutchins et al. eds., Encyclopedia Britannica, Inc. 1952). 623. Id. at 129-30. 624. Id. at 132-33. 625. Id. at 136. 626. See generally CONFESSIONS, supra note 616, at bk. 1, ch. 20. 627. Id. at bk. 1, ch. 20 at 160. 628. See generally id. at bk. 1, ch. 20. 629. Wikipedia, Thomas Aquinas, at http://en.wikipedia.org/wiki/Thomas_Aquinas (last modified Nov. 18, 2005). 630. THOMAS AQUINAS, TREATISE ON LAW (SUMMA THEOLOGICA QUESTIONS 9097) (Ralph McInerny trans., Regnery Publ’g 1956) (1271). 631. See G. Robert Blakey & Brian J. Murray, Threats, Free Speech, and the Jurisprudence of the Federal Criminal Law, 2002 BYU L. REV. 829, 877 n.130 (2002).

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morality and religion. 632 Though Aquinas may not present the ethical model that is dominant in commerce today, a significant portion of the world’s population still recognizes his model as authoritative. 633 Aquinas wrote his Summa Theologica over the span of eight years culminating in 1271. 634 The first section of the second part of the Summa has come to be known as Aquinas’s Treatise on Law. 635 In the Treatise on Law, Aquinas described the nature of law as reasoning for the common good. 636 According to Aquinas, God instilled the source of law into man’s mind, from which man developed a natural inclination to proper acts and ends. 637 It is through this natural law, Aquinas reasoned, that we recognize what is good and what is evil.638 Human reason aids us in fitting the natural to the divine law, though it is natural for man to know what is right and wrong, for we are fitted by God with such knowledge. 639 That is, we first see what is proper among men, then see that its propriety issues from a deeper source in eternal reason, to which we are then able to fit the human law more closely. 640 Aquinas recognized for us that human law cannot regulate everything, for doing so would be to regulate away some activities that are good. 641 But in such cases where no human law prohibits a practice which is known to be wrong, the practice is yet condemned by divine law—by, one might say, ethics. 642 Moreover, divine law regulates one’s interior motives, much as human law regulates one’s exterior conduct. 643 Thus, Aquinas wrote that “participation of the eternal law in the rational creature is called the natural law.” 644 The impetus for these assertions lies in the fact that man has a supernatural, not merely natural or prosaic, end. 645 632. See generally Stanford Encyclopedia of Philosophy, Saint Thomas Aquinas, at http://plato.stanford.edu/entries/aquinas/ (last changed Jan. 9, 2005). 633. See Blakey & Murray, supra note 632, 877 n.130 (2002). 634. Id. 635. Christian Classics Ethereal Library, The Summa Theologica, available at http://www.ccel.org/a/aquinas/summa/FS.html (last visited Nov. 20, 2005). 636. Id. at Q. 15. 637. Id. 638. Id. at QQ. 15-16. 639. Id. at Q. 21. 640. See H.L.A. HART, THE CONCEPT OF LAW 152 (1961) (describing natural law as the “principles of true morality or justice, discoverable by human reason without the aid of revelation even though they may have a divine origin”). 641. AQUINAS, supra note 631, at 15. 642. Id. at 21-22. 643. Id. 644. Id. at 15. 645. Id. at 20-22.

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Of course, a moral ethic is not strictly about observance. It must also acknowledge and account for liberty. In his Treatise on Law, Aquinas stated two first principles which support the traditional view of human liberty: there is a general apprehension of being (that something cannot be and not be at the same time), and there is a practical apprehension of good (that man acts for good ends). 646 The first precept of the apprehension of good is that good is to be done and evil avoided—which is also the first precept of the natural law on which all its other precepts rest. 647 Recognizing good is simply inescapable when starting from the standpoint that we all have an inclination to self-preservation. The natural preservation, promotion, and enhancement of human life can be taken as the equivalent of good. There can be disagreements in individual instances of what is or is not good. But acknowledging that there is such a thing as goodness is something any rational being must do. From there flow any number of secondary principles; perhaps the first is that good to one of us cannot be favored over good to another without a justifying reason. That is, selfishness is contrary to good unless it is not the favoring of one simply because it is one. Nearly all of us have a far greater capacity to favor ourselves over another, and so such care is not innately selfish. But when we have an equal or greater capacity to favor another other than ourselves, but rather favor ourselves simply because we are who we are, we have acted contrary to good and reason. Thus, man has the moral liberty to do those virtuous acts which accord with good and reason and no others. It is said that Aquinas stopped writing shortly before his death when his continuing revelations led him to conclude that everything he had written before was of little value. 648 Thus, we find within the Christian tradition of Paul, Augustine, and Aquinas a fully articulated, sophisticated, and intellectually rigorous morals-based legal ethic. Did those Christian morals make their way into the modern American law and legal profession? Turn again for a moment to Supreme Court Justice Joseph Story and his 1829 speech given upon his appointment to the Harvard law faculty. 649 Justice Story gave that speech not as a personal reflection, not as a controversial assertion, and certainly not as a protest or 646. Id. at 58-60. 647. Id. at 59-60. 648. D.J. Kennedy, St. Thomas Aquinas (The Catholic Encyclopedia, Volume XIV, CD-Rom, 2003), available at http://newadvent.org/cathen/14663b.htm (last updated Oct. 6, 2005). 649. Story, supra note 18.

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challenge. Rather, he stated it as reflecting the dominant moral and normative view held by those who founded and initially governed this country. 650 Justice Story said, “One of the beautiful boasts of our municipal jurisprudence is, that Christianity is a part of the common law, from which it seeks the sanction of its rights, and by which it endeavors to regulate its doctrines.” 651 American law is based on a Christian ethic. 652 Justice Story continued, “There never has been a period in which the common law did not recognize Christianity as lying at its foundations.” 653 He observed that the common law “now repudiates every act done in violation of its duties of perfect obligation.” 654 Justice Story elaborated on the role Christian morals have played in shaping the noble duties of our profession: With us, indeed, who form a part of the Christian community of nations, the law of nature has a higher sanction, as it stands supported and illustrated by revelation. Christianity, while with many minds it acquires authority from its coincidences with the law of nature, as deduced from reason, has added strength and dignity to the latter by its positive declarations. It goes farther. It unfolds our duties with far more clearness and perfection than had been known before its promulgation; and has given a commanding force to those of imperfect obligation. It relieves the mind from many harassing doubts and disquietudes; and imparts a blessed influence to the peaceful and benevolent virtues, to mercy, charity, humility, and gratitude. It seems to concentrate all morality in the simple precept of love to God and love to man. It points out the original equality of all mankind in the eyes of the Supreme Being, and brings down the monarch to the level of his subjects. It thus endeavors to check the arrogance of power, and the oppression of prerogative; and becomes the teacher as well as the advocate of rational liberty. Above all, by unfolding, in a more authoritative manner, the doctrine of the immortality of the soul, it connects all the motives and actions of man in his present state with his future interminable destiny. It thus exhorts him to the practice of virtue by all that can awaken hope or secure happiness. It deters him from crimes, by all that can operate upon his fears, his sensibility, or his conscience. It teaches him that the present life is but the dawn of being; and that 650. See generally JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, at vi (1991); MCCELLAN, supra note 15, at xvi. 651. Story, supra note 19, at 517. 652. See id. 653. Id. 654. Id.

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in the endless progress of things the slightest movement here may communicate an impulse which may be felt through eternity. Thus, Christianity becomes, not merely an auxiliary, but a guide, to the law of nature; establishing its conclusions, removing its doubts, and elevating its precepts. 655

There is strong evidence that what Justice Story said at Harvard in 1829 about the great influence of Christian morals on the law and legal profession would remain true throughout the nineteenth century. The career and teachings of Charles Finney (1792-1875) are such evidence. 656 Finney is regarded as America’s great revivalist of the mid- to late-nineteenth century, though Finney was first a lawyer. 657 He was in no sense obscure. When Finney spoke, thousands attended, so many that it has been said that he might have spoken to more individuals than anyone else ever had up to that date. 658 Thankfully, he also wrote. Undoubtedly drawing on his analytical skills learned as a lawyer, Finney attempted what others, whose writings influenced the Founding Fathers, had not attempted: to systematically state, as a comprehensive whole, in a work titled Systematic Theology, 659 the natural basis for morality and moral government. As a teacher, Finney did not rely on style or emotion. Finney stated and organized ethical-first principles in such a provokingly clear and profound fashion that they demanded personal transformation. It is said that on occasion, whole fields of listeners would be so convicted at their need for an ethical transformation as to lay prostrate for hours. 660 Finney first asked us to seek the foundation of moral obligation, which he defined as “that reason, or consideration, intrinsic in, or belonging to, the nature of an object, which necessitates the rational affirmation, that it ought to be chosen for its own sake.” 661 In other words, we should look for what can be chosen for its own sake, not so 655. Id. at 534-35. 656. See generally L.G. Parkhurst, Jr., Preface to CHARLES G. FINNEY, FINNEY’S SYSTEMATIC THEOLOGY: NEW EXPANDED EDITION (Dennis Carrol et al. eds., Bethany House 1994) (1878). 657. Wikipedia, Charles Grandison Finney, at http://en.wikipedia.org/wiki/Charles_Finney (last modified Nov. 10, 2005). 658. See generally Frank Grenville Beardsley, The Gospel Truth: A Mighty Winner of Souls, Charles G. Finney, A Study in Evangelism (1937), available at http://www.charlesgfinney.com/fbbeardsley.htm (last visited Nov. 20, 2005). 659. CHARLES G. FINNEY, FINNEY’S SYSTEMATIC THEOLOGY: NEW EXPANDED EDITION (Dennis Carrol et al. eds., Bethany House 1994) (1878). 660. G. Frederick Wright, Charles Grandison Finney (Mar. 21, 1891), available at http://truthinheart.com/EarlyOberlinCD/CD/Finney/Biography/finneybi.htm. 661. . FINNEY, supra note 660, at 44.

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as to accomplish something else. Finney then gave us as that foundation “the good of being,” which in itself “necessitates the affirmation[] that benevolence is a universal duty.” 662 We all have an obligation to will good to being, that is, to actively seek the “wellbeing of God, and of the universe of sentient existences, and especially of moral agents,” because that well-being has intrinsic value. 663 Finney repeated, “Entire, universal, uninterrupted consecration to this end, or disinterested benevolence[,] is the duty of all moral agents.” 664 He reiterated that “no obligation inconsistent with this can ever, in any case, exist.” 665 Additionally, “good, or the intrinsically valuable to being, must be the foundation of moral obligation.” 666 Moreover, that “every moral agent ought to will the highest well-being of God and of all the universe for its own sake, as a possible good, whatever their characters may be, is a truth of reason.” 667 Here, though, there appears a small wrinkle. It is not that there is inherent goodness in certain individuals, in a group of people, or in all people in general, or in certain things. Rather, Finney wrote, “Ultimate good must consist in a conscious state of mind.” 668 What has moral worth is the willing of good to one another such that “the state of mind alone is the ultimate good.” 669 It is not a complacent emotion or feeling about which Finney writes, but a commitment of the will suggesting action. If morality were feeling, then it would be pursued instrumentally for the comfort that it produced. But it is pursued for its own sake, as the divine end in which there is infinite value. No gain from pursuing any other course, or indeed the same course, can possibly have value equal to “the infinite and intrinsic value of the soul.” 670 “[A]ll virtue resolves itself into the intending of an ultimate end, or of the highest well-being of God and the universe[,]” Finney wrote, for “[t]his is true morality, and nothing else

662. 663. 664. 665. 666. 667. 668. 669. 670.

Id. Id. at 45. Id. Id. Id. at 65. Id. at 73. Id. at 65. Id. Id. at 75.

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is.” 671 Ultimately, “morality and religion do not belong to outward action, but to ultimate intentions.” 672 Indeed, “the law requires only love to God and our neighbor as an ultimate. This love or willing must respect and terminate on God and our neighbor[,]” Finney added. 673 And again, “The end which the revealed law requires us to will is undeniably simple as opposed to complex. It requires only love to God and our neighbor. One word [love] expresses the whole of moral obligation.” 674 Finney then systematically showed that within love are all of the attributes upon which morality and good governance depend: voluntariness, liberty, intelligence, virtue, disinterestedness, impartiality, efficiency, mercy, compassion, justice, veracity, patience, condescension, stability, et cetera. 675 Finney summarized that “every moral attribute, is only benevolence viewed in particular relations.” 676 By contrast, within selfishness lie all of the attributes of wrong or sin: again, liberty, voluntariness, and intelligence, but also unreasonableness, interestedness, partiality, cruelty, injustice, lying, pride, and intemperance. 677 “[Selfishness] is the choice of self-gratification as an end. It is the preference of our own gratification to the highest good of universal being.” 678 Where does law fit within this highest ethic? If well-being is intended, then law can only be a condition, not an obligation. 679 Finney said that law is only “a revelation of both the end we ought to seek, and the means by which the end can be secured.” 680 And Finney wrote that law does not “of itself impose obligation[] but is only a revelation of obligation.” 681 To Finney, “[v]irtue, holiness, uprightness, etc., signify a definite thing, and never anything else than conformity to the law of God.” 682 Morality requires constant attention and obedience to the moral law. 683 Yet, if moral law requires perfect obedience, one might conclude that no one can be moral because 671. 672. 673. 674. 675. 676. 677. 678. 679. 680. 681. 682. 683.

Id. at 79. Id. Id. at 81. Id. Id. at 139-75. Id. at 123. Id. at 181-95. Id. at 153. Id. at 91. Id. Id. Id. at 113. Id.

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justice demands more than mere regret over a wrong and the commitment not to repeat it. Justice demands a payment. 684 Who can possibly pay for an offense against a perfect law and being? Only God can make that payment because only God is perfect and sufficient. 685 And God did make that payment by the sacrifice of himself. 686 His own sacrifice was not only wholly sufficient but also wholly consistent with his nature, which is to love—love having an essential attribute of self-denial where such denial is consistent with good to universal being. 687 Our moral perfection thus requires, in addition to our entire commitment to good to being, our acknowledgment of and reliance upon God’s payment for our wrongs. 688 Moral perfection is therefore possible. It does not consist of a tiring, formal, and unnatural concentration upon obscure precepts. It depends rather on a simple understanding and natural devotion to perfectly ordinary, accessible, and enlivening truth. The instrumental benefits of our acknowledgment (though not an end) are several, including ameliorating a potentially destructive self-condemnation and perfecting what might otherwise be regarded as an imperfect justice. Moral perfection is not equivalent to efforts to feel right. “Feelings do not result from a direct effort to feel[,]” Finney wrote. 689 Rather, moral perfection requires that one “look at and understand the exact thing to be done” in any given situation, “and then to put forth at once the voluntary exercise required” to accomplish it. 690 Perfection does not lie in the doing or accomplishing of those works; to the contrary, they may well be frustrated. It is commitment to do those works, together with taking informed action within one’s capabilities, which satisfies the natural demands of morality. How, though, can one’s commitment be perfect when we are not? The way to achieve the commitment is to receive the one whose commitment is perfect. Because his commitment is perfect, we must let it be our own. Moral governments are indispensable, as are civil and family

684. 685. 686. 687. 688. 689. 690.

Id. at 213. Id. at 213-15, 223-24. Id. at 220. Id. at 169, 212. Id. at 344-45, 353. Id. at 406. Id. at 407.

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governments. Such was Finney’s encouragement, accepted in the late nineteenth century by millions of Americans. 691 The United States Supreme Court had no issue at the end of the nineteenth century with the prevalence and sanction of the Christian moral ethic. In Holy Trinity Church v. United States, 692 the United States sought to enforce legislation that prohibited employers from paying the transportation costs of alien workers into the United States against a New York church that had paid the transportation costs of an English minister it wished to employ in the pulpit of its church. 693 A unanimous Court held that although the church’s action was within the literal terms of the legislation, it was not within the spirit of that evil (the massive importation of gullible foreign unskilled labor) which the legislation was meant to address. 694 The Court then concluded with the following summary of Christianity’s influence: “But beyond all these matters,” the Court wrote, “no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation.” 695 The Court’s opinion then recited the religious grants, charters, and sanctions which accompanied the Spanish, English, and French colonization of America, such as the first charter of Virginia granted by King James I in 1606 696 to propagate Christianity in the new world, and the similar 1620 Mayflower compact, 697 1638-39 fundamental orders of Connecticut, 698 and 1701 William Penn charter of Pennsylvania reciting that no People can be truly happy, though under the greatest Enjoyment of Civil Liberties, if abridged of the Freedom of their Consciences, as to their Religious Profession and Worship: And Almighty God being the only Lord of Conscience, Father of Lights and Spirits; and the Author as well as Object of all divine Knowledge, Faith and Worship, who only doth enlighten the Minds, and persuade

691. Virginia Sapiro, Seeking Knowledge and Information as Political Action: A U.S. Historical Case Study 14 (2002), at http://www.polisci.wisc.edu/users/sapiro/papers/enlight.pdf. 692. 143 U.S. 457 (1892). 693. Id. at 458. 694. Id. at 472. 695. Id. at 465. 696. Id. at 466. 697. Id. 698. Id.

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and convince the Understandings of People, I do hereby grant and declare. 699 The Court’s Holy Trinity Church opinion then turned to the Declaration of Independence itself, the religious and moral references of which are already quoted and discussed in Part II above. The Court’s opinion then turned to the similar recognition of religious obligations in every one of the constitutions of the then forty-four states, and the Court found “a profound reverence for religion and an assumption that its influence in all human affairs is essential to the well being of the community.” 700 The Court quoted as a representative example Articles II and III of Part First of the 1780 Constitution of Massachusetts: the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality, and as these cannot be generally diffused through a community but by the institution of the public worship of God and of public instructions in piety, religion and morality: Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts and other bodies-politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily. 701

In the Holy Trinity Church opinion, the Court cited the First Amendment of the United States Constitution itself as further reflecting that “[t]here is no dissonance in these declarations. There is a universal language pervading them all, having one meaning; they affirm and reaffirm that this is a religious nation.” 702 To the Court, the state and federal constitutions represented “organic utterances; they speak the voice of the entire people.” 703 The Court cited our previously discussed commentator James Kent, “the great 699. Yale Law School, Charter of Privileges Granted by William Penn, esq. to the Inhabitants of Pennsylvania and Territories, October 28, 1701, at http://www.yale.edu/lawweb/avalon/states/pa07.htm (last corrected Nov. 20, 2005). 700. Holy Trinity Church, 143 U.S. at 468. 701. Id. at 469. 702. Id. at 470. 703. Id.

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commentator on American law,” as confirming that the people of the country profess Christianity as their faith and practice. 704 The Court’s opinion concluded that, as to “American life as expressed by its laws, its business, its customs and its society, we find everywhere a clear recognition of the same truth” in the religious form of oaths and wills, prayers opening legislative sessions, Sabbath observance, and Christian churches and charitable organizations. 705 “These, and many other matters which might be noticed,” the Court ended, “add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.” 706 With the United States Supreme Court having spoken, little more need be said regarding the ennobling influence of conventional morality on the law and legal profession. But because the law and legal profession seem today all about Judge Posner’s scientific materialism rather than ennobling moral ethics, it is appropriate to end this study of the ennobling history, philosophy, morality, and culture of ethics within the legal profession with the thoughts of . . . a scientist. If we, as lawyers, are going to play scientist, then turnabout seems fair play that scientists should have some say in addressing law’s morality. Thus, Albert Einstein, everyone knows, was not just any scientist but is easily regarded as the world’s best known and most brilliant. Yet, Einstein wrote and spoke about morality in a concise and memorable manner that should have caught our attention more than it has. For instance, Einstein expressly rejected a probabilistic universe with the famous quip in a 1926 letter to Max Born, “I, at any rate, am convinced that He [God] is not playing at dice.” 707 Though our law and practice is increasingly based on probabilistic norms (on judgments of chance, likelihood, reasonable probabilities, and so forth), at least one scientist, Einstein, saw sufficient design in the universe that he might instead have argued for providential legal norms (moral judgments based on motive, right, and wrong). To Einstein, the spectacular order of the universe had no chance (to make a turn on words) of having been produced by random action. 708 Current chaos theorists would say that even randomness is strangely

704. Id. at 470-71. 705. Id. at 471. 706. Id. 707. ALBERT EINSTEIN, THE BORN-EINSTEIN LETTERS 91 (Irene Born trans., Walker and Company 1971). 708. Id.

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ordered. 709 Einstein had a profound appreciation for a conscious and active God. 710 As he put it, “My religion consists of a humble admiration of the illimitable superior spirit who reveals himself in the slight details we are able to perceive with our frail and feeble mind.” 711 Einstein devoted himself to employing that extraordinary skill given him to discover ever more of the work of that illimitable spirit, for “[o]ne cannot help but be in awe when he contemplates the mysteries of eternity, of life, of the marvelous structure of reality”; we should “[n]ever lose a holy curiosity.” 712 Einstein, especially, did not wish that people would venerate their own wisdom, for “[w]e should take care not to make the intellect our god; it has, of course, powerful muscles, but no personality.” 713 Einstein also had a practical understanding of and confidence in traditional, rather than theoretical, ethics. 714 “Ethical axioms,” he wrote, “are found and tested not very differently from the axioms of science. Truth is what stands the test of experience.” 715 Unlike Hume and Posner, Einstein certainly did not reject the abstracted absolutes. “The ideals that have lighted my way,” Einstein wrote, “and time after time have given me new courage to face life cheerfully, have been Kindness, Beauty, and Truth. . . . The trite objects of human efforts—possessions, outward success, luxury—have always seemed to me contemptible.” 716 Indeed, in perhaps his most famous statement about the limits of science, published in 1941 in Science, Philosophy and Religion: A Symposium, 717 Einstein eliminated the conceptual gap between religion and science as follows: [A] religious person is devout in the sense that he has no doubt of the significance and loftiness of those superpersonal objects and goals which neither require nor are capable of rational 709. Henrvy M. Morris & John D. Morris, Can Order Come Out of Chaos (June 1997), at http://www.ldolphin.org/chaos.html. 710. Wikiquote, Albert Einstein, at http://en.wikiquote.org/wiki/Albert_Einstein (last visited Nov. 16, 2005). 711. Id. 712. Id. 713. Id. 714. Jeremy Hinsdale, Einstein in the West, Quanta in the East: Physics, Philosophy, and Religion, May 27, 2005, at http://www.pbs.org/wnet/religionandethics/week839/exclusive.html (last visited Oct. 28, 2005). 715. Wikiquote, supra note 711. 716. Id. 717. ALBERT EINSTEIN, SCIENCE, PHILOSOPHY, AND RELIGION: A SYMPOSIUM (1941) [hereinafter SYMPOSIUM].

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foundation. They exist with the same necessity and matter-offactness as he himself. In this sense religion is the age-old endeavor of mankind to become clearly and completely conscious of these values and goals and constantly to strengthen and extend their effect. If one conceives of religion and science according to these definitions then a conflict between them appears impossible. For science can only ascertain what is, but not what should be, and outside of its domain value judgments of all kinds remain necessary. Religion, on the other hand, deals only with evaluations of human thought and action: it cannot justifiably speak of facts and relationships between facts. According to this interpretation the well-known conflicts between religion and science in the past must all be ascribed to a misapprehension of the situation which has been described. 718

Einstein saw no conflict between the methods of science and the morality of religion; he saw science and morality as inseparable partners. 719 To Einstein, morality (or religion) is the intrinsic good, with science its instrumentalist partner in achieving the good-defined goals. 720 Again in the same writing he wrote: “Though religion may be that which determines the goal, it has, nevertheless, learned from science, in the broadest sense, what means will contribute to the attainment of the goals it has set up.” 721 Einstein believed that “science can only be created by those who are thoroughly imbued with the aspiration towards truth and understanding.” 722 Such an aspiration “springs from the sphere of religion.” 723 Thus, Einstein concluded, “I cannot conceive of a genuine scientist without that profound faith.” 724 Einstein departed from conventional conceptions of morality only in his declining to accept an anthropomorphic God. 725 He felt that for humans to be held responsible for their actions by an omniscient God would be for God to “be passing judgment on Himself[,]” which in Einstein’s moral education could not possibly “be combined with the goodness and righteousness ascribed to Him” as so beneficent and universal a God. 726 Einstein 718. Symposium, Science, Philosophy, and Religion (1941), available at http://www.sacred-texts.com/aor/einstein/einsci.htm (last visited Nov. 20, 2005). 719. Id. 720. Id. 721. SYMPOSIUM, supra note 718, at 210. 722. Id. at 210-11. 723. Id. at 211. 724. Id. 725. Id. 726. Id.

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did not consider (at least in his essay on the subject) the possibility that God’s judgment on himself was precisely the manner in which he could prove the ineffable wisdom, righteousness, and love of Einstein’s magnificent, illimitable, and moral God. V. CONCLUSION: THE VALUE OF A PROFESSIONAL CONSCIENCE Noble lawyers are as possible today as ever, even if our postmodern legal culture and conventions may make them less common. That makes the challenge standing apart from the more dismal aspects of the current legal culture. As an ancient ethical text says, the challenge is not to “conform any longer to the pattern of this world,” but instead to be transformed by renewing one’s personal, interior culture. 727 Personal transformation requires something more than study—more than the acquisition of knowledge. It is not something educators can induce by modest additions to the curriculum. At most, knowledge through readings can, aided by discussion, analysis, and good doses of encouragement, move the heart and soul beyond the recognition that there are alternative ethics to the point of considering whether those ethics should be adopted. The ultimate choice remains for the law student and lawyer. Culture can be changed. It changes all the time both by intention and fortuitously. But even where the culture is not changed, individual lives can be changed beginning, and in some respects ending, with personal commitment to truths which lie beyond our personal predilections—with a commitment to conscience. Two authors found, in a systematic study of moral heroes and exemplars, that they share the three common characteristics of certainty, positive attitude, and a unity between their self-conception and moral goals. 728 These individuals understand their conscience to be their identity and their self, and they find in it a nearly perfect satisfaction which is wholly independent of circumstance. 729 They write, speak, live, love, and serve in equal satisfaction from the gutters of Calcutta to the confines of a Birmingham jail, possessed of a perfectly frank realization of the limits of their circumstances and efforts, but oblivious to what others would see as their acute vulnerability. And so they accomplish that which to others would 727. See Romans 12:1-2. 728. ANNE COLBY & WILLIAM DAMON, SOME DO CARE: CONTEMPORARY LIVES OF MORAL COMMITMENT 293-94, 300-01 (1992). 729. See id. at 300-01.

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seem impossible; doing so with a peaceful joy that surpasses material reward—indeed, surpasses all understanding. Nobility is ultimately about keeping the rules and about personal transformation that enlivens one’s personal and professional life with purpose and mission. The challenge is to discover and hold true to the value of a professional conscience.