Freeman

ARTICLE

The Law School and Legal Training

JUNE 01, 1971 by SYLVESTER PETRO

Dr. Petro is Professor of Law at New York Uni­versity School of Law. He has written a number of books, and is a frequent contributor to THE FREEMAN and other journals of law, economics, and political science. This article is based upon his talk to entering freshmen at the School of Law in September, 1970.

When people ask, "What do law schools do?" the impatient say: "Why, they turn out lawyers, of course!" But such an answer is much too short, for law schools do both more and less than turn out lawyers.

The word "lawyer" is a loose term referring to those persons who engage in one or another as­pect of the complex set of activi­ties known as the practice of law. In order to become a lawyer, let alone a good lawyer, you will have to do a great deal more than spend three years, however studiously, in law school. On the other hand, such training as you acquire can serve you well even though you are never admitted to the bar or never practice law a day in your life. It used to be that gentlemen who did not know what else to do with themselves in their early twenties went to law school merely in order to continue their educa­tion, or even only to pass the time. It wasn’t a bad idea then and isn’t now. Many legally trained persons have become outstanding men of business or politicians or writers or actors or sailors or teachers and even more unlikely things. There is no reason to suppose that such careers will be closed to present or future law students. On the contrary.

What law schools do, what they must do because they are not phys­ically capable of doing anything else as long as they are staffed by lawyers and attended mainly by students who want to become law­yers — what they do is impart legal training. In order to understand what that means you will first have to see law schools in their social setting generally and in relation to the legal system particularly.

The Purpose of the Legal System

The legal system is that set of institutions, armed with physical force and directed by reason and good sense, which mankind asks to formulate and apply the norms necessary at least to the survival and at most to the progress of so­ciety. Church, school, home, and a vast number of other experiences all share in the task of forming public opinion on right and wrong, good and bad, desirable and un­desirable. Neither the legal system as a whole nor the law schools have any monopoly on virtue, any exclusive competence or expertise in matters of morality or social utility. That private property should be protected, contracts en­forced, and wrongful injury to the person compensated — these prin­ciples emerged from the minds of human beings long before the legal profession did; indeed they brought legal systems into exist­ence. It was not the other way round.

The legal system and its per­sonnel may and do contribute to the development of moral and ethical principles. But their main business is to see that society’s norms are effectuated — their unique expertise, if any, is dis­played to the extent that they do so consistently, coherently, and efficiently. Society demands com­pliance with and enforcement of its basic norms; the legal system purports to supply that enforce­ment.

And the law schools necessarily preoccupy themselves with study and teaching of the ways in which the legal system goes about its tasks. Among the elements of legal training which you will acquire in law school, then, is a grasp of the "machinery of justice" and how it works. Just as every person is in part what his genetic equipment makes him, so too does history play a significant role in the make-up of society, quintessentially so in the structure and operation of the le­gal system. Those who patroniz­ingly say, "That’s only legal his­tory," miss a big point about law. Law can no more dissociate itself from its history than you can from your genes.

The History of the Law

All the law that human beings can study is historical law, com­posed of and shaped by yet more antecedent ideas and experience. It is law made in the past — re­member, yesterday is already pastthat rules the future. "Time present and time past are con­tained in time future, and all time is eternally present," the poet said, rightly. You will read many old cases in law school. Try not to be impatient with them. Approach them receptively and you will gain greatly. Human society did not begin the day you were born. And Somerset Maugham may have been right when he said that the central truths about mankind were much too important to its survival to go long undiscovered. The decalogue broods silently but potently among all law studies.

As you study cases, statutes, and learned commentaries, all com­posing the long historical sweep and evolution of legal institutions, you will become aware that human affairs are inordinately compli­cated and that governing those affairs is a correspondingly com­plex operation, challenging the highest faculties of mind and char­acter. Your powers of reason, of identification and discrimination, of analysis and synthesis, will be tried, probably, as they have never been before. Unlike mathematics, the structure of which is shared by the formal, logical side of law, the legal system is forever deal­ing in empirical fact — and em­pirical fact involving, at that, the most complex activities known to man: his own.

No two transactions, no two re­lationships, hence no two cases, are ever identical. A rule or doc­trine or formula which disposes beautifully of one set of facts — meting out what everybody agrees is perfect justice under law to the parties involved in that case — may founder if the facts change only a little. How far does a rule reach? Ah, that is the question. Before you get through law school you will be "reconciling," "distin­guishing," and "harmonizing" de­cisions all over the place. You will have made at least a start in mastering the lawyerly arts and skills: imaginatively constructing cogent theories and developing a sense of which facts are critical, which relevant, and which irrele­vant. And all this despite the prob­ability that you will never be able to formulate these processes sat­isfactorily because they are so subtle and complex.

As a matter of fact, perhaps most litigation occurs because lawyers differ on the questions whether this case is ruled by that, which theory is applicable, and therefore which facts are relevant. It is a serious mistake to accept the common notion that law is a haven for the dull and the uni­maginative. No area of human action provides a richer field for the subtle play of intellect and imagination.

Do not fall into the error, how­ever, of believing, because some areas of law are dubious and un­clear and because some disputes can be resolved only in court, that there is no such thing as law, or that it is absolutely plastic. Like all great institutions, the law is working quietly all the time, at its best when most quietly, mainly outside the courtroom. Of the un­told billions of human relation­ships, voluntary and involuntary, only an infinitesimally small frac­tion are resolved by direct recourse to the machinery of justice, and it is well that this is so; for any legal system which had to in­tervene physically into every hu­man relationship would soon rup­ture itself. Our system of law is in the main cogent and clear and widely understood and respected. Were it not, we should be finding chaos at the center rather than at the fringes of our daily lives. Part of your legal training is concerned with going to court. All of it should be helping you to stay out of court, if your clients will co­operate.

The Study of Human Action

In performing the services which society and the legal system demand of them, the law schools must perforce attend dominantly to the kinds of tasks implicit in the foregoing; but a strange thing happens in the process. While you are dragging yourself through thousands of cases, statutes, hypo­thetical problems — all the while compelled to make some kind of sense of them, to understand them, and to learn how to use them — in the course of this sometimes op­pressive process, you will acquire a grasp of human action, human nature, and human society exceed­ing in comprehensiveness and de­tail anything offered by any other formal course of study. You will see the plot of human life unfold in ways that make all but the greatest novels and plays seem pitifully thin. More than that, you will have the opportunity to devel­op habits of self-discipline, of pre­cise thought, of tenacity in fact-analysis, and of coherent theoriz­ing, which are universally useful, not only in law practice but in every phase of life in the complex, free society. Indeed, the survival and the progress of the free soci­ety are peculiarly the responsi­bility of the legally trained, for they are most intimately involved in the operation of its machinery. When law school gets a bit much for you, as it likely will more than once, remember what Alexis de Tocqueville said: "Nothing is more fertile in prodigies than the art of being free — and nothing is more arduous than the apprenticeship of liberty."

I have emphasized the historical and the theoretical, the informa­tional and the ratiocinative aspects of legal training because, as I have said, they comprehend the contributions that law schools are uniquely qualified to make. Many believe that the law schools should preoccupy themselves less with "technical training" and more with efforts to "improve the law" and thus become more "relevant." May­be so. Society, the legal system, and the law schools are all in need of improvement, and more and more irrelevancies have crept into law-school curricula over the years, especially the recent years. However, that same legal training which has served so well in so many occupations is also the nec­essary prerequisite to genuine, stable progress in the law. It is fatuous to suppose that anything so infernally complicated as hu­man society can be made to re­spond productively to ideas struck off impulsively by unqualified, un­skilled, and immature persons. Durable improvement in any com­plex field can come only from per­sons profoundly conversant with that field. Cool, sustained study, knowledge as wide and full as possible, and a well-disciplined mind are indispensable to any solid contribution to the progress of society. Legal training in the classical sense is an unexcelled ve­hicle to the attainment of those consummately desirable objectives. If you are bound and determined while in law school to "reform" or "improve" things, try turning your energies to the improvement of your own legal training. You’ll never regret it. For you will then, as all competent people finally do, learn how to focus your energies efficiently. You will curtly dismiss most "reform proposals," because most will be ill-considered, and you will concentrate on the few solid programs which, if you are for­tunate, you will encounter in your life.

 

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Private Property

Without a society in which life and property are to some extent secure, existence can continue only at the lowest levels — you can­not have a good life for those you love, nor can you devote your energies to activity on the higher level.

ALFRED NORTH WHITEHEAD, Adventures of Ideas

ASSOCIATED ISSUE

June 1971

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