The 1974 Herman Phleger Lecture was delivered on April 11 by Charles E. Wyzanski, Jr. Senior Judge of the United States District Court for the District of Massachusetts, and Herman Phleger Visiting Professor of Law.
The Herman Phleger Visiting Professorship allows for a leading person in the field of law-either in private practice or in government-to spend a semester at the School to teach and to provide faculty and students with insights into the legal system and its operations. The professorship was established through the generosity of Mr. and Mrs. Herman Phleger. Mr. Phleger, an emeritus trustee of the University, is a senior partner in the San Francisco firm of Brobeck, Phleger and Harrison.
We do not know with a sufficient certainty and in detail what it is that produces good character and virtue. We might even be skeptical enough to think that the most virtuous of judges, Benjamin Nathan Cardozo, was virtuous partly in reaction to his corrupt father who led the Tweed Ring judges in the most scandalous episode in the whole of American judicial history.
So I start out by saying I am not going to give you any answer. I think that anybody who pretends to give you an answer is a charlatan.
What do we know if we know anything about moral education? We surely know that the ability to recite morality has nothing to do with conduct. What we seem to know is that even among the best and brightest there is a great deal of departure from the highest standards. And yet, we must not entirely despair. It is probably true, little as we may like to admit it, that Nietzsche was right; that fear is an important part of morality and had we all worn Gyges’ ring from birth there are very few of us who would have led saintly lives.
I support the view that it is almost inconceivable that people will be moral unless at some time they have been subject to discipline. Unless there has been some early period of enforced conformity, not necessarily by the rod, it is not very likely that people will be governed by much beyond the pleasure principle.
From an early platform of discipline, one may move forward through rational means to a higher level. What is important in moral education is to carry people higher, from where they are to a vision of something better. In a kind of Hegelian way, this may involve a revolt. It has been suggested that true morality is impossible except you be a revolutionary. It is quite easy to be a conformist. But who said that was moral?
The total step-by-step program from discipline to challenge to freedom moves in the direction of an awareness of justice. It is justice that is the fundamental problem-at least in a secular world. And it is the awareness of justice and the search for justice and, if possible, the achievement of it that is morality. Now that, which is the common ground of all callings, is the special ground of the law. If once Philosophy or Theology was the Queen of the Faculty, perhaps Law is its successor, and even more important in a community in which there is no longer a common religious faith, creed, or discipline.
What do the law schools now do? Is it not fair to say that they spend a great deal of their time helping people to see the facts and state them accurately without swindling anybody; either the professor, or the class, or the person reciting? The best possible effort is made to define with exactness, to see the issues, and to cultivate the responsibility of analysis looking forward to judgment.
I think it fair to say that the very structure of legal education has a moral quality. But there is something more than that. Every great teacher is a moral teacher, or he is not great. Anybody who studied with Paul Freund and read his books on the Supreme Court and on Justice; or with Henry Hart and read his Aims of the Criminal Law or his other writing; or with Benjamin Kaplan and studied Copyright or Contracts under him, knows perfectly well that by the way they approached the problem day by day, the way they elicited from the class the best that in them lay, they were moral teachers.
But let me make it quite clear. We have been talking about intellectual influences, and intellectual influences by themselves are inadequate. An excessively intellectual, competitive world has its own disadvantages, as the younger generation has been reminding us these last few years. Beyond the intellectual there must be the emotional sense of the solidarity, the fraternity, the tolerance, the decency which make society a community.
In this law school, which a year or two ago produced the Packer-Ehrlich report, I need not remind you that we are faced not merely with a great increase in the number of people who are seeking legal education, we are going into an era in which, in divers ways, in different institutions, we shall have a change from the form of legal education that has existed since Langdell’s time. We may have many paralegal people. We surely will have more and more specialists.
It is unthinkable that in the modern world we can turn back from specialization. But specialization offers a peculiar threat to a unified core or moral purpose in the law school-or in life. And this is a danger much increased because accompanying specialization, the older small law firms and the individual practitioners become Iess and Iess important. Who today becomes an apprentice of a lawyer except (and this is an important exception) the person who becomes a law clerk to a judge? I would point out to you as not irrelevant the moral impact of certain judges upon a succession of law clerks who, however bright they may have been when they became law clerks, were more moral men afterwards. Is it an accident that among Learned Hand’s law clerks were Archibald Cox and Elliott Richardson and Dean Ehrlich and Professor Gunther? Is it an accident that among Justice Brandeis’ law clerks were Dean Acheson, Calvert Magruder, Henry J. Friendly, Professor Freund, Professor Hart, Professor Jaffe, and Professor Hurst?
What do I say about the future? I wish I could say that I saw some modified apprentice system; but I do not foresee that kind of development. In some places perhaps, for some lucky few. With respect to law schools generally, I have three wholly tentative approaches.
First, I think there should be a recasting of the course or courses in Jurisprudence. The day of Roscoe Pound and his categories and divisions and subdivisions is long since passed. What would happen, for example, if you set before a class John Rawls’ Theory of Justice and spent the time to consider whether his premises are really valid and whether they are in conflict with and, if so, which is right? Examining Justice in a Platonic sense will pass no bar examination; nor will it get you a job; nor will your prospective employer probably think that you have spent your time wisely. But those who see further than the cash box will wonder whether it is not of supreme importance to know what this law business is all about.
My second division is easier to support. The young are a very horizontally-minded generation. They know infinitely more than people my age do about a thousand different areas. But I have a compensating interest. I have a vertical interest in history and in tradition. As Isaiah said, “to know the rock whence ye are hewn” is an essential of moral or mental stability.
One learns history by wrestling with particular events in some depth. And so far as the lawyer is concerned, the particular wrestling is generally personal and biographical.
We don’t study in sufficient detail and with sufficiently rigid standards those who practice the law. What we ought to be concerned with are not the perfect lives. Let us not spend too much time on Cardozo; none of us will be like him. It’s much more useful to study Lincoln and Brandeis and Buckner – not one of whom would claim for himself perfection, nor be entitled to be awarded that title.
Now what about my third general area. In my judgment, that has to do with participation by the students. Anybody can talk about morality, but practice of morality requires action, which means participation. I do not expect to get many votes from people my age on my view that students should ‘have a much larger role in connection, not merely with courses and their selection, but with faculty and their selection, and discipline and the growth of what Charles Alan Wright has called “the constitution on the campus.” It is not because I am so eager to get rid of authority. It is because I think that the earlier you can make people participate in the institutions of justice and assume an appropriate role therein, the more likely you will be to develop their moral character.
I think I know something about what distinguishes moral from immoral people, even if I don’t know how to produce moral people. One thing is intellectual rigor. There is no substitute for hard thinking on moral questions.
Another thing ‘s certainly candor, an awareness of one’s own faults and limitations. Who illustrates this better than Montaigne? Is it not true that as you read the Essays you perceive what a moral man this man is with all his lapses? “Though ye sit on the top of the world, yet sit ye up on your tail.” “A man who never indulges in excess is a prig.” Facing up to what one is like is of great importance.
And then there is courage; and I don’t mean mere pluck in the Shakespearean sense, “Money lost, little lost; honor lost, much lost; pluck lost, all lost.” I mean courage in the Periclean sense, “The secret of happiness is liberty and the secret of liberty is courage.”
We have enormous choice though it may seem marginal. But the moral man is the man who carries as his constant companions critics of quality who constantly measure internally his external conduct. Those of us who are fortunate enough to go to great law schools get such companions as we go through law school – such teachers, such peers. If we are fortunate we carry them as our critics inside us for the rest of our lives.
It is in that sense that Maitland, in his famous Rede lecture on Roman Law in the English Renaissance, must have meant his famous tribute that in the early Middle Ages, Bologna was the great law school; in the later Middle Ages, Paris; in the beginning of the 20th century, Harvard.
In the end of this century, may it be Stanford.