restricted access The Lessons of the Law
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The Lessons of the Law As the speaker at a law school commencement several years ago, I told the graduating students that exactly thirty years earlier I had stood in a similar place as they did then and for a similar purpose, and that I believed then, as I had believed on that earlier day, that Justice Holmes was majestically right in stating that a person can "live greatly in the law." Because the experience of a legal education is so intense and its subject matter so technical and complicated, it is easy to become consumed by details and to forget that lawyers have been educated that they may serve the public interest, and not only by litigating or drafting documents or representing clients on a pro bono basis. They also serve the public interest by helping ordinary citizens to understand and better appreciate the role that law plays in a democratic society. All of us working in law would like to believe that we could offer to ordinary citizens a better account of our profession than does the judge in W. H. Auden's poem, "Law Like Love": Law, says the judge as he looks down his nose, Speaking clearly and most severely, Law is as I've told you before, Law is as you know I suppose, Law is but let me explain it once more, Law is The Law. We would like to believe that, unlike Auden's judge, we would have the capacity to explain to ordinary citizens that the law is a set of reasonable rules for governing society, a matrix of requirements, practices, and understandings that promotes public order, regulates personal and business relationships, and provides guidelines of fairness and common sense. Yet, for all of our explanatory competence, we know that most Americans perceive the law quite differently-as a bramble bush of alienation and a thicket ofmystification ("a sort ofhocus-pocus science," as Charles Macklin , an eighteenth-century playwright, once said). The persistence of these perceptions of alienation and mystification means that lawyers devoted to 93 94 Idealism and Liberal Education public service have their work cut out for them. For who are better than lawyers for describing to ordinary citizens the great lessons that the law has to teach? Most Americans would be surprised by the concept of the law as teacher. They typically think of the law as prohibitor, as adjudicator, as arbitrator-as anything but teacher. This is cause for lament, for the law has much to teach. In my commencement speech, I chose to focus on three lessons I have learned in thirty years at the bar. They are lessons that concern the responsibilities of citizenship, the limitations ofexpertise, and the complexity of context. Democracy is the most demanding of all political arrangements. It asks ordinary men and women to meet the extraordinary responsibilities of citizenship. One of the most important ingredients in meeting those responsibilities is an understanding that although the law seeks to rest its aspirations on reason, the "life of the law," as Justice Holmes taught us, "has not been logic: it has been experience." As all lawyers have learned time and again, the law is not an inert body of static principles but a vital organism that is constantly evolving in response to social change. Citizens who do not understand this fact will hold the law to inappropriate and unrealistic expectations. They will expect of the law an abstract perfection that cannot be attained, and as a result they are apt to be discouraged from participating in the democratic process. Justice Holmes also taught us that the theory of our Constitution is "an experiment, as all life is an experiment." The mysterious process by which free men and women govern themselves by law is indeed an experiment , a perilous one that is hardly assured of continuing success. That process requires us to question the values and institutions we have inherited from the past, even as we seek workable and principled answers by which to live for the present. It requires us to recognize that the provisional working answers that every generation formulates in order to govern itself will inevitably pose new and differently phrased questions for the generations yet to come. This country's experiment in democratic government depends on the qualities that ordinary citizens bring to that process of intergenerational dialogue: self-discipline, patience, historical perspective, and a tolerance for ambiguity. Through education and by instinct, lawyers know much of this lesson. They...


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