By Eric Z. Lucas[i]
“A lawyer, at minimum, must stand for truth and not falsehood…Too long have we been known by our fellow citizens as agents of deception. The era of deception in legal practice must be brought to a close.”
At the very beginning of my law school experience I was taught an essential principle about legal writing. In writing legal briefs I was taught that opposing briefs were to be like “two ships passing in the night.” For a long time I was confused as to what this meant. I mean, if two people are writing about the same set of events, shouldn’t there be some agreement, some overlap in their positions? The answer to this question, according to the quote is, “No.” The two positions should be presented as so diametrically opposed that you would not easily recognize them as the same event, hence, “ships passing in the night.”
This method, called argument or persuasion, seeks to present the client’s position in the best possible light. Accordingly, one local legal writing text informs the reader that:
“The facts must be candidly set forth, but the writer may arrange them, phrase them, and expand or condense treatment of particular events so as to emphasize favorable facts and to diminish unfavorable facts.”2
So the art of persuasion depends on skillfully emphasizing what we call the “favorable facts” and diminishing what we refer to as the “unfavorable facts.”
Now any reader of intelligence will soon realize that this kind of factual manipulation comes very close to the border of downright factual distortion. Some people call factual distortion “lying.” But, as you can see from the explanation, lying is not what lawyers are taught. They are taught to manage the facts. That this process brings one continually into the danger land of distortion is taught as merely one of the hazards of the practice of advocacy or persuasion.
Perhaps all of this art of persuasion stuff would be innocuous or merely rhetorical – except for one thing. Lawyers are also taught a certain system of values in their training. Modern legal training is dominated by the Positivist school of jurisprudence, as exemplified in the legal theories of Justice Oliver Wendell Holmes, Hans Kelsen, 3 and H.L.A. Hart4
The Positivist school breaks with the older schools of jurisprudence, which saw a close connection between law and morality,5 by discovering law and morality to be separate realms. The positivist school also purports to discover “law as a science,” which science finds its foundation in a fundamental rule called a “basic norm.”6 Thus as young law students we were taught that:
“Inasmuch as the norms that are the basis of the value judgments are enacted by human, not superhuman will, the values constituted by them are arbitrary. Other human acts of will can create other norms opposite to the former ones; and these other norms, then, constitute values that are opposite to those constituted by the former. That which is “good” according to the one norm may be “bad” according to another. Therefore the norms, enacted by men and not by divine authority, can only constitute relative values…A norm…cannot be either true or untrue, but only valid or not valid.”7
It is important to reiterate the proposition quoted from Kelsen. Law students are actually taught, either implicitly or explicitly, that the values underlying legal norms are arbitrary. They are also taught that since it is true that values are arbitrary, all man-made or normative valuation is relative. Thus, when a lawyer is fighting for a certain legal position, he or she is not fighting for truth, for a norm cannot be true or false. He or she is only promoting a certain value, in a field of competing values, all of which may have a legitimate claim to validity.8
Now this is not a problem, except for that, as children in our society, we are taught something concerning social valuation, which is quite different. The idealism in young law students is not a product of TV shows, but rather, is a product of the central core of our process of socialization. For as we grow up in America, we are taught:
“We hold these truths to be self-evident, 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…”9
The introduction of these “truths”, at this point in the discussion, perhaps might explain the internal conflict of young law students who are being taught the Positivist view of the nature of law. For the idealism that many of them feel flows directly from the inculcation of these truths. Indeed, to refer to “equality” of man and his “unalienable Rights” as “truths” puts these teachings on a different level or order of being10 than the Positivist jurisprudential discussion of the legal norm. To then take these truths and relegate them to the position of a “basic norm” underlying the legal system of our society, does not tend to inspire confidence in the legal system. In point of fact, it may tend instead to denigrate both these truths and the legal system.
For these truths are taught to American children as absolutes, as principles true for all mankind. In many cases such children have relatives and friends who fought and died in foreign lands in order to uphold these truths. They are not taught to us as culturally relative statements of a basic norm.
To say, “we hold these truths to be self evident,” speaks to a foundation of our reality, which is unshakable. These truths are understood to be brief statements of the real meaning of human life, not the normative culturally relative meaning of our American society.
Many practitioners and I suspect many of our fellow citizens believe that the practice of law must involve some semblance of factual manipulation or downright dishonesty, in order to protect and best represent the client’s point of view and the client’s best interests. But, our fellow citizens should also understand that many giants of legal practice have not agreed with this principle of manipulation. In fact, our sixteenth President of the United States, Abraham Lincoln held quite a different view.
Professionally, Abraham Lincoln was a lawyer. And as such he had a reputation “for absolute honesty.” He became known as “Honest Abe” or “Honest Old Abe.” It was known that, “when his adversary could not quite prove what Lincoln knew to be the truth, he reckoned, it would be fair to admit the truth…” In a law lecture he wrote in 1850, he sought to counter the “vague popular belief that lawyers are necessarily dishonest,” saying:
“Let no young man, choosing the law for a calling, for a moment yield to this popular belief. Resolve to be honest at all events; and if, in your own judgment, you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation.”
This was Lincoln’s view. But he has not been alone. The great Charles Hamilton Houston joins Lincoln in his positive view of lawyers. In the year 1924, Houston, (a cum laude graduate from Harvard Law School, and the first black to serve on the Harvard Law Review) did a curious thing. Rumor has it that he turned down Harvard Law School Dean Roscoe Pound’s offer to serve on the faculty of HLS, in order to join the faculty of Howard Law School, an all black institution. He became Dean of the Howard Law School in 1929. He served as Dean from 1929 to 1935 and during that time completely transformed that law school from a night program to a fully accredited institution recognized by the American Bar Association. But that was not his real objective.
His real objective was to train young black lawyers to join in his strategic plan to overturn the doctrine of separate but equal established by the U.S. Supreme Court in the case of Plessy v. Ferguson. The plan was to take cases of racial inequality in education and use them as precedents—as stepping-stones—to over turn Plessy. He trained many lawyers but his best pupil was Thurgood Marshall the first black Supreme Court Justice of the United States. Marshall joined in the work, with other fellow Howard Law School students and in 1954 Plessy v. Ferguson, was overturned when the United States Supreme Court decided Brown v. the Board of Education (authored by Chief Justice Earl Warren, who was a Republican from California).
In training his young group of constitutional warriors Houston taught them that: “A lawyer’s either a social engineer or he’s a parasite on society.” … A social engineer was a highly skilled, perceptive, sensitive lawyer who understood the Constitution of the United States and knew how to explore its uses in the solving of “problems of . . . local communities” and in “bettering conditions of the underprivileged citizens.” 11
Particularly in these two individuals you see ideas reflecting the possibility of a new kind of lawyer and a new kind of legal practice. In an essay I recently wrote entitled: The Path of Public Service12 I sought to further define this approach by presenting a new definition of Public Service. In that essay I said:
“When we use the term “Public Service” we are not referring to things related to the public/private distinction. In other words when we say “public” we are not referring to government service, elected office or even volunteer “community service” and we are not relegating every day work to the realm of the “private.” When we use the term “Public Service” what we mean is work done in the world for the sake of others and by this we mean “any work.” Specifically, we mean work done for the sake of others as compared to work done solely for one’s self or for one’s own benefit. And what this means, in practical terms, is that any task can be done in one-way or the other. Any job, any work, any task can be done solely for one’s own benefit or for the sake of others: whether it is President of the United States or garbage collector. In addition, when we say “Path of Public Service” it should now be clear that we are not talking about one path but many paths. We are talking about the path or work that each person may engage in when they live their every day lives.”
The point here is that no matter what the task, it can be pursued as a method of public service – Public Service As A Way of Life. What this means for the individual is that he or she must strive for perfection. It is not the all-encompassing perfection of the omnipotent or the omniscient, but it is the limited perfection of the form at hand. One has to try and be the best judge, lawyer, justice, law professor, president, governor, mayor, CEO, husband, wife, son, daughter, father and mother one can become. A mayor does not have to perfect being a president. The mayor has to perfect being a mayor. The daughter does not have to perfect being a son. The daughter only must strive to be the best daughter possible.
In terms of this article, one must ask: What does it mean to be a lawyer? What does it mean to be a law professor? What does it mean to be a judge? This article answers the question as follows: the meaning does not inhere in the power associated with the form. Perfection and meaning do not lie in that direction.
It is possible for a lawyer to be what Charles Hamilton Houston called a “parasite” on society or a “social engineer.” He taught his students to be social engineers, and the result was Brown v. the Board of Education and the subsequent beginning of the liberation of all black people and all other citizens of America from the evils of racial segregation.
But clearly, if these words are true, then a lawyer, at minimum, must stand for truth and not falsehood. A lawyer and all those who serve the law must take pride in arriving at the true meaning of a statute, case, or principle and take shame if the tools of the profession are used to perpetrate falsehood and harm.
It means in practice a lawyer must not resort to arguments of deception or “fracture” 13 and not utilize arguments that intentionally distort the meaning of a case or situation. To do so, in these terms, is to violate the very soul of the law – which is to arrive at the true meaning of a norm, case, or controversy.
More than anything, this article reveals that it is the direction of the effort that is of utmost importance. We may not be able to reach the goal of ultimate truth or ultimate perfection. But nevertheless that must be the direction we take as far as the form utilized will travel.
As a profession we need to stand for truth and meaning. Too long have we been known by our fellow citizens as agents of deception. The era of deception in legal practice must be brought to a close. Arguments of deception, fracture and subsequent annihilation should be looked on with derision whenever they occur: whether in private forms of litigation, or public discourse. If this is done it may be possible to usher in a new golden age of law, where law is about understanding “the fabric of thought before us…so that we may know truly what it is.…as we strive in accordance with our obligation of fidelity to law”14 to make life a coherent, workable whole.
[i] Eric Z. Lucas is a 1986 graduate of Harvard Law School, and is Executive Director of the One America Society Foundation, a think tank.
2 Squires and Rombauer, “Legal Writing In A Nutshell,” (West Publishing Company: 1982) at p. 171.
3 Hans Kelsen, The Pure Theory of Law (Regents of the University of California 1967).
4 H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958).
5 The older schools of jurisprudence, which combined law and morality, are known as “Legal Realism and Natural Rights or Natural Law.”
6 Kelsen, supra at p.8.
7 Id., at 18-19.
8 On a personal note, during the first semester of law school when these understandings were becoming apparent to the student body, many in my class became physically ill. I cannot vouch for other classes, but it was traumatic for many idealistic young law students to learn that this system was so constructed or could be so construed.
9 The Declaration Of Independence, July 4, 1776.
10 Donald, David Herbert, Lincoln (Simon and Schuster, Inc. New York: 1995) p. 465-466. When Lincoln evoked these “truths” in his Gettysburg address some commentators of the day took issue with him. Biographer David Donald reports that the New York World stated: “This United States was not the product of the Declaration of Independence but the result of the ratification of a compact known as the Constitution,” a compact that said nothing whatever about equality.”
This is the same tension between inherent meaning and Kelsen’s basic norm. For Kelsen the Constitution would be seen as a basic norm. But Lincoln, in searching for the foundations of the nation he led, turned to these “self evident” truths.
11 The quote from Charles Hamilton Houston, can be found at: http://www.brownat50.org/brownBios/BioCharlesHHouston.html
13 For a further discussion of the concept of “fracture” see my article entitled: Law, Truth, Meaning and Lies: A Metaphysical Look at the case of Berea College v. The Commonwealth of Kentucky. It can be found at: http://works.bepress.com/eric_lucas
14 Lon Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart Harvard Law Review, Vol. 71 at 667 (1958).