I am in very large agreement
with what Stephen Carter said. I admire it and like it
very much. But the issue that I would raise, and in a
way that I meant to touch on by that ecumenical blessing,
a song of William Blake's, is: What is it that needs to
be resisted in the dominant culture? What is it that needs
to be resisted at the core? To me, this is where one finds
the important potential linkage between religion and law.
From my point of view,
what needs to be resisted is alienation, is our alienation
from ourselves and from one another, and the meaninglessness
of a dominant culture that is founded upon the everyday
reinforcement of that alienation.
I believe that we are
each animated by a longing, a desire, for mutual recognition
and affirmation, for social connection, through which
we each become capable of recognizing one another as created
in the image of God and experience the presence to one
an [*999] other, the unique presence to one another, that
one discovers when one is able to realize the essential
spiritual aspect of our being.
The tragedy of contemporary
culture and contemporary life is that most people cannot
experience that longing. They cannot experience the empathy
and the compassion that naturally emerges from that longing,
because they feel disconnected, isolated from one another,
passing each other with blank gazes on the streets, wrapped
up in external roles while internally peering out at the
world from a great distance.
I often use the newscaster
as my example - "The Red Sox win and a fire in Dorchester!
Back in a moment" - as if the tragedy of that fire
and the Red Sox winning were equivalent in the realm of
meaning. Of course, that is not what the newscaster really
believes, but he or she is not in touch with what he or
she really believes at the moment of living through that
externalized, standardized persona.
The standardized persona
is a persona of otherness that is drawn into the self
and manifested as if it were real to the world, when in
fact it is a means of separating the self from the other
and denying the desire for actual contact, for actual
presence to the other and actual mutual recognition that
each of us as self or other longs for.
The reasons for that
denial are complicated. In a society in which one is estranged,
in which alienation is the dominant characteristic, people
are in pain. They are surrounded and flooded by images
and roles that represent to them who they are, but in
a false way. As a result, they come to feel the need to
identify with that false outer dimension of the self in
order to feel "with others," even though the
"withness," the sense of connection that is
characteristic of that external persona-based, role-based
identity, is actually a kind of imaginary or pseudo-connectedness,
and often reflects a deep and profound gulf that separates
us by a near infinite distance.
When you are watching
the newscaster, you are actually pushed back against the
couch, but you do not know it because you are enveloped
in a world in which enduring this kind of alienness of
presence is a condition of social membership. In fact,
if you wanted to be a newscaster, you would have to struggle
to maintain the authenticity of your presence in the face
of the apparent coercion of the rotation of alienating
roles.
Lawyers are trapped in
this also. Legal education conditions you for it. Law
students enter law school with a sincere idea - I say
this from my twenty-five years as a law professor - that
they are [*1000] entering a profession dedicated to justice
and the moral elevation of society. The first week of
school they approach law as a calling, not as a medium
of self-interest, until about November of the first year,
to use my rule of thumb. I taught contracts for twenty-five
years, the height of self-interest in some ways. I taught
a critique of it, and I taught it. But by November of
the first year, and often from that time throughout the
lawyer's career, one finds the newscaster.
With glassy eyes and
a disembodied monotone, the student begins to say things
like, "It seems to me you could argue there is no
consideration here because the piece of paper was entirely
worthless," sounding just like the newscaster. In
other words, the moral being of the student, and then
the lawyer, gradually gets lost in the manipulativeness
of an analytic reasoning that is severed from the spiritual
longings of the soul. So that the problem of alienation
in the larger culture is replicated in the legal profession's
way of representing the larger culture in public space,
in one of the most important arenas of the public culture
that exists in this society.
Law ought to be - its
meaning, its vocation ought to be - the profession, and
the law as a whole, ought to be - a highly visible public
aspect of culture, a public arena, in which the community
manifests itself as aspiring to the realization of our
spiritual longing for community and for mutual recognition
of the other in a relationship of "I and Thou,"
as Jewish theologian Martin Buber put it. n25 That is
what legal culture ought to be.
It ought to be fostering
and eliciting as part of the development of the human
race, and the development of being itself, the capacity
for empathy, for compassion, for seeing the other as created
in the image of God, and for being able to place oneself
in the position of the other, and therefore to grasp the
ultimate foundations of conflict, the distortions that
give rise to conflict.
Instead, contemporary
legal culture is mainly a legitimizer of the wider culture's
alienation and flight from spiritual depth and seriousness.
We have an adversary system that presupposes hostility,
mistrust, winning at any cost; a legal reasoning that
emphasizes the manipulation of rules, arguing for any
side - and here is where I am emphasizing my agreement
with what Stephen Carter said - so that the "legal
mind" becomes an analytical mechanism without moral
anchor, in a world in which there is no sensibility present
in [*1001] the culture for the manifestation of an empathic
and compassionate guiding awareness.
What this means to me,
what this calls for, is a fundamental transformation of
law and the legal profession so that legal culture becomes
a highly visible arena of resistance to the wider culture's
alienation by embodying the spiritual aspirations unrealized
in that wider culture. Martin Luther King defined justice
as love correcting that which revolts against love. n26
For law to pursue this ideal of justice requires a transformation
that would help people to open up their closed-off souls,
to open up their capacity for and their longing for a
greater sense of compassion for and understanding of others.
That is what the legal culture ought to aspire to, from
my point of view. That is what I am arguing for.
But that requires that
we find sources within the existing society where the
values of empathy, compassion, apology and forgiveness
are legitimized and manifested. These values have little
or no presence in our present adversary system. Their
presence requires an apprehension that love is the ground
of Being, the basis of the I- Thou relation that must
be recovered through the work of justice. The word "religion"
means "to bind together again," and it has been
in the best aspects and practices of the various religious
traditions that these values have been manifested.
In my case, I discovered
these values in social movements when I was not a religious
person. Later, as I discovered my own Judaism and I found
in Judaism and Jewish practice the facilitation of this
kind of empathic understanding, I integrated the transcendental
experience that I had gained from the civil rights movement
and the social movements of the 1960s with a religious
understanding. I came to understand how much religion
was at the core of what Martin Luther King was calling
for in legal change, how much the meaning of legal change
to Martin Luther King was born out of the black churches
and through the spirit of love and community that gave
rise to and so empowered and vitalized the civil rights
movement.
So for me, what I look
for in the transformation of legal culture that could
enable it to have the resisting capacity that Stephen
Carter was arguing for is a more fundamental change in
it, a change that really does reject this hyper-analytic,
spiritually insensitive process that is legal education
and legal practice right now, and that sees the legal
arena as a potential location where people [*1002] - longing
to escape their alienation - can see it occurring in front
of them in a highly visible public space.
Here are two examples
of what I am talking about that provide a source of hope:
One is the restorative
justice movement in criminal law, in which, in contrast
to the current criminal justice system, victims and offenders
meet face-to-face in a context in which the trauma to
the victim is taken seriously; the victim is allowed to
re-experience and express that trauma in the presence
of the offender; and the offender is given the opportunity
to empathize with the victim's suffering and encouraged
by the context to be able to apologize, in many cases
to be forgiven, and to be reintegrated into the world
at a higher level of community. The restorative justice
approach goes far beyond the Bill of Rights and the protections
of the isolated individual to seeing legal culture itself
as a context where community can be created.
What I am asking you
to do is to imagine what would happen if the dominant
culture had the opportunity to witness such a process.
Imagine, in the social arena that gives final public legitimacy
to who human beings are and how conflicts are to be resolved
- namely, law - if this were the ethos presented back
to people. I feel that this kind of public legal process
could play an important role in allowing people to open
up the part of themselves that is hardened and withdrawn
and longing to get out.
A second example is the
South African Commission on Truth and Reconciliation.
n27 Here we have a remarkable example of the black majority
engaging in a process that is, first, seeking to demand
that the truth of what occurred under apartheid be acknowledged
in a highly public manner, on television for all to see
on a daily basis, and expecting the whites responsible
for it to take responsibility for it and to acknowledge
that truth; but then also, seeking to forgive the white
minority, so that a healing eventually might occur that
would make it possible, not immediately, perhaps not soon,
but eventually, to create a humane society in South Africa
that models a world based on our capacity to recognize
one another across our differences. It is a great experiment,
this Commission, in the development of legal institutions.
When its highest aspirations are evoked by a man with
the presence of Bishop Tutu, it is a wonderful model for
how a religious understanding can help [*1003] to illuminate
spiritual longings which exist within all of us, longings
that need to be elevated and spoken to in the culture
of law.
The last thing I would
like to say - I am interested in your reaction to this,
Stephen - is a brief comment on your quote from Kenneth
Starr. I would say about your Ken Starr quote that it
shows that the Devil can cite Scripture for his purpose,
because Mr. Starr has not manifested himself, as I have
experienced him, in a way that corresponds to the words
that you attributed to him. If to some of you this is
an overstatement at the end of a very hopeful speech,
forgive me.
But the point that I
am making by referring to that quote is that the legal
profession requires a transformation that goes to its
heart and not only to its ethical code understood in primarily
verbal or values-based language. It must connect to the
very being of lawyers, to the way that they are educated
and to the way that they are encouraged to manifest themselves
in the world.
PROF.
aL-HIBRI: Our next
speaker is Father Joseph O'Hare, the President of Fordham
University, this great institution which is hosting this
conference and which has actually taken under his guidance
a very active role in reexamining issues of religion,
law, and society. This is no accident, since prior to
becoming President of this institution in 1984, Father
Joseph O'Hare was the Editor-in- Chief of America magazine,
a Jesuit weekly journal of opinion commenting on morality,
law and religion.
FATHER O'HARE: According
to the program, I am the last person to speak in this
panel. It is not my usual role. I should have been here
at the very beginning welcoming you, since that is what
presidents do - they welcome, they give remarks. Of course,
if you are a religious president, you also give benedictions
and invocations.
So, coming at the end
of this program, let me offer you the welcoming remarks
that I should have given at the opening of this conference,
and that I am sure Dean Feerick gave in my stead and in
the stead of the whole University community.
Indeed, we do think that
this initiative, begun here in our Law School and inspired
by members of our faculty, is something that our University,
with its religious tradition, certainly wants to promote
and foster.
In particular, I want
to thank Professor Russell Pearce and Dr. John Healey
of our Archbishop Hughes Institute for their efforts in
putting this conference together and in bringing so many
interest [*1004] ing people from such diverse backgrounds
to speak about a common theme that is of great importance
to all of us.
Let me say too that,
listening this morning, I realized that, for a president
who at one time did have serious intellectual interests
- at least thought he did - and then got into the business
of presidenting, listening to two speakers with such exciting
new ideas, I found myself becoming more than usually interested
in the direction they are taking. But, I have to be very
careful now. I am not used to this kind of heady exchange
so early in the morning.
I will say a couple of
things, though, from my personal experience as President,
and reflecting on what I heard this morning.
First, I detected, perhaps
more than he intended, in Professor Carter's remarks an
implicit criticism of the American Bar Association ("ABA"),
and I resonated with that very much, since if you are
a university president, your very existence at times seems
to be dictated by the norms of the ABA.
The second thing I reflected
on is my own experience as a client; I am not a lawyer
and never have been a lawyer. Some of my best friends
are lawyers; but I would not want to marry a lawyer under
the present regimen in the Church.
Thinking of that remark,
some of you may have read Robert McAfee Brown's works
on the Second Vatican Council. n28 He was the Presbyterian
observer at the Second Vatican Council in the 1960s. He
came back and he said, "My Presbyterian brethren
think I am being too optimistic about this Council and
what it is going to do with Catholicism, that I am taking
too hopeful an assessment of what is really going to happen
in the Roman Catholic Church, and the reason I am doing
that is because I am associating too much with Jesuits."
This was 1965. Robert McAfee Brown said, "Some of
my best friends are Jesuits, but I would not want my daughter
to marry one." In 1965, of course, that was a joke.
But I want to say this
from my experience as a client: I wish we had in our legal
staff a lawyer who would tell presidents how they can
do what they want to do. We seem to have a University
counsel who tells me continually why I cannot do what
I want to do, even when I think that what I want to do
is in keeping with the Kingdom of God and a more empathetic,
humanitarian society. But somehow, in this highly regulated
society of ours, somewhat contrary to Professor Carter's
experience, lawyers do not always [*1005] tell the client
how to do what they want to do, at least in the not- for-profit
world.
Let me make then a few
observations on the very important themes that have been
struck by both of these speakers. I should say that my
own thinking in this area was shaped very much by one
of the theologians that Stephen Carter quoted, John Courtney
Murray, who introduced us to certain distinctions when
thinking about religion and public life that I have found
over the years to be quite sturdy. n29 They seem to have
survived, in my thinking at least, the changing of intellectual
fashions.
One of the things that
John Murray always insisted on was that the state was
a neutral, secular instrument, of a society in America
that was religiously-pluralistic and therefore, while
the separation of church and state and the First Amendment
made sure that in a secular society we do not have one
religion, those provisions actually worked for the freedom
of all religions. That was what he saw as the great contribution
especially to theological thought of the American proposition.
It was an idea not terribly well received when he first
began to talk about it in the 1950s. In fact, he was told
he should not talk about it, and then he was vindicated
in the late 1960s at the Second Vatican Council.
But implicit in those
ideas I think, is a check on the tendency that Professor
Carter spoke about of the dominant culture seeking to
homogenize the people - of the state trying to create
a people. I would think, that is, that Father Murray's
emphasis on the distinction between state and society
is a mediating concept that might throw some light on
that tendency of the dominant culture and a way of challenging
the culture's tendency.
Secondly, to introduce
a religious concept, I think a Christian idea that was
in the background of our discussion this morning - certainly
in Professor Carter's presentation - but was not articulated,
is the whole notion of what the Kingdom of God is. A Christian
is one dedicated to the Kingdom of God. For Jesus himself
did speak continually about the kingdom. n30
I understand "the
kingdom" to be a kind of horizon that we always seek
as we try to establish a society, to shape a state as
the instrument of that society, and to increase the margin
of justice.
[*1006] I was surprised
we did not hear the word "justice" used too
much this morning. It seems to me that the law is always
an imperfect instrument of justice and the effort of reforming
the law is always an effort to increase the margin of
justice in a society. So I think there is a kind of progressive
movement in the transformation of the law that depends
on other forces in society as well.
Whether the role of the
lawyer, as well as the role of the religious person, can
be adequately described as "resistance" is,
to me, an intriguing idea.
To speak of religion
first, I think traditionally religion has always played
the role in society of both legitimizer and prophetic
critic, and frequently there has been a tension between
those two roles. Simply to say that the role of religion
is to resist, or that the role of the lawyer is to resist,
seems to me to restrict too narrowly our understanding
of the actual life of the law and the life of our religious
communities, since there will be a time for "resistance"
but also a time for "legitimization."
And finally, a word on
civility. This has always been a special interest of mine
because I think, somehow, the challenge to the citizen
in a pluralistic society is to see to it that religion
is not trivialized or privatized. I think that is an issue
that is terribly important since we live in a culture
where religion is in fact often privatized, indeed privatized
even in the law school of a Catholic university. "I
am not religious myself, but it is good for the kids"
- was, you know, one of Father Murray's mantras about
American society.
So I think the privatization
of religion is something that we ought to keep in this
debate. Obviously, it has been already made part of the
debate, for example in Richard Neuhaus's books Public
Catholicism n31 and The Naked Public Square. n32
But I think the combination
of religious passion and civility are also necessary conditions
for the public debate that goes on in a pluralistic society
when people of different religious faiths try to come
together to see if we can discover what beliefs and values
we share. For while there is undoubtedly a strong homogenizing
influence of the dominant culture, I think we have to
recognize that there are also strains within the culture
of American society today that are minority strains, but
nonetheless can be just as dictatorial as the dominant
culture.
[*1007] I had the great
privilege of serving on the Board of Trustees of a major
inter-denominational seminary, and even served on the
search committee for a new president some years ago. There
were both faculty and trustees on this committee. As I
listened to what the faculty wanted in the new president,
it seemed to me that they wanted someone who would adhere
to a standard of what I could only call "theological
correctness." There was only one view that was supposedly
theologically acceptable in a faculty that I thought would
value diversity and competing views and would want to
argue about basic values.
So I think there is a
tendency to impose orthodoxies that can be very dangerous
to the spirit of a democratic society. The least dangerous
orthodoxies are the ones that are explicit and public.
The more dangerous orthodoxies are the ones that are insidious
and unnamed. I think in our debate about the dominant
culture we have to recognize that there are orthodoxies,
public and private, that are at work standardizing our
thinking and inhibiting the conditions for a real debate
on what public policy should be. Somehow, in entering
into this debate we have to bring our religious passion,
but we also need to have that kind of respect for others
that we call "civility." Civility is a very
interesting theme today in contemporary New York City
because you know that the city's image has changed completely.
It used to be the New York image that you were snarling,
et cetera. Now not at all. Now our Mayor goes out to Iowa
and talks about New York as the "civil city"
- and if you are not civil, he will make sure that you
are!
Finally, let me conclude
with my first reaction to the topic I was asked to address
this morning: "Does Religious Faith Interfere with
a Lawyer's Work?" My first response was, "Oh,
I certainly hope so."
PROF. aL-HIBRI: Before
I open this session to questions and answers, I thought
I would make some remarks from a Muslim point of view.
I have written about this topic in my article, On Being
a Muslim Corporate Lawyer n33 which many of you are familiar
with, but I want to just share with you a couple of thoughts.
First of all, I would
like to say that I was very happy to see a lot of American
Muslims in law schools and in practice, a new phenomenon
in the American Muslim community in the United States,
and I was very pleased to see that they were quite interested
in coming to this conference in large numbers, and to
meet after [*1008] hours to talk about their religious
and moral responsibility towards society.
I want to talk to you
about my experience in law school. I come from a religious
household, and I was told, by the Qur'an, by the Prophet
and by my family, that if I make a commitment I ought
to honor it. That is part of the morality that I was brought
up with. So you can imagine how puzzled I was when I entered
my contracts class and the first thing my professor told
us was to remember that contracts were made to be broken.
I was quite puzzled, and I did not know what would follow.
Going into practice,
as you all know from the article if you look at it, n34
was also another traumatic experience. But, in particular,
I would like to address the notion of pushing the boundaries.
You are considered to
be a skillful lawyer if you push the boundaries for your
client without triggering a violation - but you can come
as close as possible. That also conflicts with my religious
upbringing, which says that if something is prohibited,
then avoid coming anywhere close to it for fear that you
might fall into it. So again, I guess I was not really
interested in becoming a very skillful lawyer because
I had this tension that was very implicit in my thoughts
and upbringing.
Finally, on the concept
of resistance and the role of resistance in religion,
I would like to mention that when many of us think of
the Islamic tradition, we tend to think of a very status
quo kind of tradition. But in fact, if we look critically
at the history of Islamic jurisprudence, we find out that
it is a history of resistance. In particular, it has been
a history of resistance to state power. Throughout history,
Muslim states, except in the very early period, tended
to rule in the name of Islam while in fact emptying their
rule of its religious content. Many were basically secular
states, claiming to be Muslims states. When jurists tried
to introduce or preserve the moral and religious content
of the state, the rulers looked at their efforts very
negatively. As a result, Muslim jurists often paid for
the positions they took with their life.
So I think we are quite
fortunate to be here talking about religious resistance
in a democratic state, and that is very consistent with
my tradition, except to say that, for many centuries now,
there have been a lot of Muslims who lost their lives
trying to resist immoral behavior on the part of the state.
[*1009] Let me now ask
if any of the speakers on the panel first would like to
make some comments before we go to the audience.
PROF.
CARTER: I found
both what Peter Gabel and Father O'Hare said extremely
useful. I would make two tiny points.
First, Peter, I should
explain that my reference to Ken Starr n35 was meant to
be ironic. I want to make that very clear. In fact, it
is very interesting, because elsewhere in the same article
- and I did not put this in because of the lack of time
- he goes on to say that he thinks that Christianity usually
is not inconsistent with the lawyer's role, because he
says that basically the lawyer's role is about fairness
and justice and so there tends to be convergence. n36
Second, I think that
is just not true because I think it is not correct that
under the pre-scriptural norms which lawyers operate,
we could just blithely say that when lawyers give clients
advice, they are basically giving advice based on precepts
of morality and justice. I just think that is not true
at all.
PROF.
aL-HIBRI: Any other
comments? Any questions from the audience?
PARTICIPANT: I have a
question about Professor Carter's prescription, which
I think is an admirable one, in terms of the competitiveness
of law today for clients. That is to say, does this mean
that it might be more difficult for religious lawyers
who want to apply that debate to get clients if they follow
this kind of a prescription?
PROF.
CARTER: I think
that is a perfectly reasonable question. I can only give
a piece of the answer, and it might not be an answer that
people will be very happy with.
The answer is possibly
that is true. I do not know. I would like to think it
is not true. It depends in part on whether one sees the
transformation of lawyering as just a transformation of
lawyering or as part of a blueprint for a larger transformation
of some of the values that we tend to hold, or actions
that we hold in the society.
I recognize the competition
in lawyering has become quite fierce. But there is a terrible
negative synergy because as competition for clients gets
fiercer, lawyers too often give more and more fealty to
what I call the technocratic vision, that "I am simply
here to produce the output that my client desires."
And then, of course, [*1010] the other lawyers do that
too, and that, I think, creates a part of the problem.
I should explain to Father
O'Hare the reason that I mentioned the ABA. The ABA really
took over, bit by bit, the governance of lawyers in the
various states. No one is quite sure exactly how this
happened. It just announced "we are in charge"
and reached out and gradually took charge, and now it
is in charge. Unfortunately, the ABA took charge in the
name of making lawyers into a profession, and it took
a long time to gain the amount of authority over the profession
that it now has. But, oddly or ironically, this took place
at the same time that we saw the transformation of lawyering
from what my Dean, Anthony Townsend Kronman, has called
"the lawyer statesmen" n37 image to the client-service
image. I mean the transformation in the treatises, in
the way one was taught, and a variety of other things
as well.
I realize this is not
really doing much to answer the question, but the only
thing I would say is this: To the extent that lawyering
itself becomes an activity of resistance, whatever may
be the forces it is resisting, it may be like any other
activity of resistance where there will be costs. There
will be costs to engaging in a resisting activity, and
what each of us has to decide is how much resistance we
are willing to do given the cost we have to bear for that.
But I do not know any way around that.
MR.
GABEL: May I just
quickly also respond by saying that I think there are
pluses also. That is, first of all, when a lawyer manifests
himself or herself as a full moral presence, and not as
a conduit for client interests - a technological lawyer,
as Stephen Carter would say - he offers the client the
opportunity to engage with the world in that way, which
is a desire of the clients, whether or not the client
knows that at first.
The second point I would
make is that the current atmosphere for lawyers has driven
lawyers into a very widespread spiritual crisis. So, without
minimizing the need for money, there is also the need
for a soul to the profession that has led so many lawyers
into just not being able to stay in their work.
PARTICIPANT: Just to
follow up on that, it seems obvious to me that the only
public policy solution that would favor the kind of vision
that you have would be, at least perhaps in criminal law,
to require that all attorneys are paid for, provided and
appointed by [*1011] the state. Whether this could be
extended to some areas of civil law as well might be an
interesting question. That would be a radical reform.
I invite you to make headlines by calling for it today.
At the risk of not getting out of this room alive, I am
willing to say I think it is an excellent idea.
But just one last point
to add to that. It seems to me that even if we imagine
that this were done, there would be some room within that
kind of reformed system to want, at least in the practice
of criminal law, a limited ethic of vigorous advocacy,
not for reasons merely of serving the client's interests,
whatever they may be, but of maintaining a system of criminal
justice that is fair and at least somewhat acquittal-prone.
PROF.
CARTER: If the
question is for me, I have to say, with all respect, I
think it is a terrible idea. I think you cannot serve
as a force of resistance if you are paid by the state.
It is as simple as that. It is the same reason I think
vouchers are basically a bad idea. I do not think that
vouchers are unconstitutional, I have no constitutional
problem with them; but I think that once religious schools
get in the business of taking state money - my goodness,
what has happened to the power of resistance that they
are trying to generate; what has happened to the independence
that they need to become these centers of meaning?
So the worst thing for
the lawyering profession would be to become a creature
of the state. I think that would be a terrible thing.
It is not that the state is evil. I do not think the state
is evil. I am not anti-government in any sense. But I
think that whenever we start spending public money, what
we are really talking about - and it is important to understand
this - is putting a particular elite that may run the
state at a particular moment in charge of whatever entity
is getting the public money. It is hard to imagine any
other way to do it.
What our whole history
teaches us, the whole history of public money teaches
us, is that in the end, no matter how well-intentioned,
it comes with strings attached. So if we pay for all criminal
lawyers with public money and lawyers become accustomed
to that public money, what do you do when the state decides
to take it away? What do you do when the state decides
that you can have this money only for particular kinds
of defendants in particular kinds of cases?
What happens to the Legal
Services Corporation if they say, "You can make these
arguments, but not those arguments?" You have a publicly
funded Legal Services Corporation. Congress sud [*1012]
denly decides, "We are going to kill the suits we
do not like; because you are getting our money, we are
going to tell you what you can litigate over." This
would be a disaster, it seems to me.
That is not to say that
public money is evil. I do not think it is evil. I think
it is fine. But if one really believes in resistance,
which is what I am talking about, resistance to the dominant
culture, then one tries hard to avoid becoming reliant
on that for one's livelihood.
PARTICIPANT: Professor
Carter, my comment, or question, also focuses on the zealous
advocacy ethic that you discussed. I understand that your
description of it is as arising, in part, from sort of
the consumerist mentality of recent decades, and I do
not disagree with that. But I wonder, doesn't the zealous
advocacy also represent a profound acknowledgment of pluralism
in society and the danger, as Father O'Hare said, of imposing
orthodoxies on people? Doesn't the ethic represent a recognition
of recent vintage that minority or unorthodox or previously
unrecognized viewpoints and causes might have merit and
deserve representation without pre-judgment, pre-judgment
that is based on community or individual understandings
that are often misguided, if not oppressive or unjust?
So, as such, isn't that
ethic also a vehicle for the very resistance to prevailing
norms that you believe religion itself can and should
serve? And, if so, how can we guarantee that kind of promise,
that commitment, that a possibly unpopular or a currently
unavailable or unpopular view will be heard and its purposes
and individuals will be vindicated?
PROF.
CARTER: I want
to distinguish two different parts of the question. I
think it is a very important question.
I am not against zealous
advocacy of one's client, although I think it ought not
to be the dominant rule of legal ethics. That is the first
point. I also think that the lawyer's zeal has to be tempered
by a moral sense, whatever the source of that morality
may be.
But I want to get to
the second point, because I think that one of the conceptions
we like to have of lawyers is as the fighters for the
unpopular cause, whether the unpopular cause is the civil
rights movement, the First Amendment rights of people
whose views may be despised, or the labor movement in
its earlier incarnation. Whatever it may be, we like the
image of lawyers as fighters for the unpopular cause.
And I like that image, too.
[*1013] But it is important
to recognize the very, very strong limits on that image.
Few causes in the long run are won by lawyers. This is
simply not a realistic vision of social change. Causes
are won by broad alterations in the way that people think,
of which lawyering - i.e. successful advocacy - can be
one piece. But it is never a sufficient piece, even though
we often behave in our litigation system as though it
is.
And so, to the extent
that we believe in the importance, as I do, of bringing
into the conversation voices that are excluded - whether
they are excluded because they are voices of people traditionally
despised, or whether they are excluded because the voices
of the people despise them - whatever the reason may be,
bringing excluded voices into the conversation is of enormous
importance to a democracy.
But the ultimate security
for those voices is not the law. The ultimate security
for those voices is changing the way we think about those
who are other than ourselves. Law can be a small part
of that effort, but I think we fool ourselves if we think
that law is the dominant force or lawyering is the dominant
force in that effort.
PROF.
aL-HIBRI: Father
O'Hare, do you want to speak to that? I thought you
had some thoughts on that.
FATHER
O'HARE: Thank
you very much for the compliment. I did actually have
a thought, but not directly pertinent to the question.
The comparison between
religious faith and lawyering made when Professor Carter
suggests that the role of resistance might be the best
aspiration of both has led me to think in my own mind
about the claims. The claim of religious faith that I
would presume would be absolute is the claim of the legal
profession as absolute, and how does one relate one claim
to the other.
I particularly liked
Professor Carter's final remark a moment ago, that when
we talk about transforming society, I think it is somewhat
messianic for lawyers to think that law will transform
society. Law will play a part, but I think a small part,
and there are other forces in society that have to be
part of this effort.
MR.
GABEL: May I briefly
respond to the zealous representation question?
There is another problem
with the zealous representation ethic. That is, that it
tends to divide the lawyer internally from his or her
own moral presence and treat the lawyer as if the lawyer
is a cipher [*1014] for the client's ends. That is not
true. It should not be true and it is not true - that
is, the lawyer as a moral being responsible for his or
her conduct in an encounter with the client, by working
with the client, acting on the world. So, from my point
of view, the duty of zealous representation has to be
constrained by the moral presence of the lawyer or the
lawyer is participating in the self-deception of a denial
of responsibility.
PARTICIPANT: Father O'Hare
spoke about silent orthodoxies. I am wondering whether
Professors Carter and Gabel could comment about their
law schools, whether, putting market ideology aside, there
are silent orthodoxies at their respective legal institutions,
and whether those orthodoxies were transmitted to the
students, and how effective the transmission really has
been? Not wanting to leave Father O'Hare out, I will also
ask him about his scenario.
MR.
GABEL: Your orthodoxy
first.
PROF.
CARTER: Mine or
his? Oh, mine. I can't win.
My answer is yes, of
course there are. But you cannot leave out the market
because a lot of them are so deeply caught up with that.
I would just mention
two things when you say "silent orthodoxies."
A few minutes ago, Professor al-Hibri mentioned contract
law, and Peter Gabel also mentioned contract law. I teach
contract law. The very fact that contract law is a first
term course and an introduction to the law school curriculum,
in virtually every law school that I am aware of, is telling.
We are already telling students that what you have heard
- and most students hear this at home, in one way or another,
about the value of keeping your commitments - is not so.
So, in that sense, the first silent orthodoxy is that
law schools are set up in a way to shake students loose
from the moral knowledge they bring with them. That is
the first step in transforming them into this technocratic
vision.
This is not a good thing,
it seems to me. And, of course, some law schools have
tried to find programmatic ways to cope with this. But
this seems to me to be a very serious problem - that our
first goal in law school is to shake students loose from
their preconceptions.
And we consider it a
good thing when a student makes a moral point in class
and we tear it to pieces from the lectern. Let me say
that I try very hard to resist that urge. I think it is
incumbent on me as a Christian to respect the dignity
of all persons. But I will confess here freely to all
of you that I fail at this often, and that I, [*1015]
myself, have this conflict. I am caught up in transmitting
the very silent message that I hear and I am saying I
am troubled by it. That is one silent message.
Let me mention another
one which I think is particularly pertinent to what has
gone on at Yale in recent years. Of all the previous moral
commitments that law schools would like to shake loose,
I think religion is perhaps foremost among them. That
is, the school is, for better or for worse, often - not
always, but often - imbued with a sense of religion as
a particularly, peculiarly distorting force in the kinds
of dialogues we ought to have.
Those of you who know
my work know that I have written in the past about why
this is wrong. n38 Actually, this is true, that religion
is a distorting force in the dialogues we would like to
have, and this is good; it is good that it is a distorting
force, so people who say religion distorts the kind of
dialogue which we need in the law or in democracy, they
are right that it distorts the kind of dialogue we have
in law or in democracy. I think I have come out with the
view that one of the values of religion is precisely that
it is a distorting force in the smooth running of the
dialogues that we would have to have.
So those are two orthodoxies
that I would just toss out.
MR.
GABEL: The orthodoxy
Stephen Carter spoke to is one that is predominant - that
is the orthodoxy of the bar exam, of technocratic thinking,
and the way that that culture invades anything that you
try to do within a law school in which you have to get
accredited and have to take the bar exam afterwards. These
are tremendous constraints.
But to the extent that
there is another orthodoxy, there is one, and that is
that you can make moral comments as long as they are of
a particular type, born out of the public interest law,
rights- based adversarial movement of the 1960s. The orthodoxy
at New College, a public interest law school born out
of the spirit of the 1960s, is the orthodoxy of the Left.
But if you try to speak from a religious standpoint about
the transcendental spirit to which we aspire as lawyers,
it is very hard to do so as a teacher.
[*1016] I am the president
of the College. The law school is one part of it. First,
I have had to write a manifesto to fight against the dominant
ideology in my school, that I have actually put on the
Internet, n39 to get the spiritual dimension to make it
a legitimate aspect of the discourse.
But I was thinking, as
you asked that, that I left a message on my voicemail
saying that I was in New York this week speaking at a
conference on law, religion, and social resistance. I
did that because I could not say that I was at a conference
on law and religion. I am glad that it turned out to be
true.
So yes, it is a struggle.
And actually, one brief
comment about the public money question. I see this struggle,
as an unendowed institution. New College gets federal
financial aid and we get accredited. We have to deal with
public bodies and gain their legitimacy.
I just wanted to say,
on a slightly more optimistic note, that there too are
idealists and people with spiritual longings within federal
bureaucracies, within accreditation societies. They too
can be won over, as long as you do not sell yourself out
in order to seem like a standardized reflection of the
rules, but instead advocate from the integrity and authenticity
of your beliefs.
