Anyone with an interest in preserving a just legal system should pause for a moment and consider this absurdity. The vast majority of American law students devote three arduous years preparing for a legal career without ever being prompted by a professor to consider what justice is. I do not mean that students are not exposed to legal doctrines or the structure of American law. They are, and in overwhelming abundance. Students read hundreds of case opinions before finishing their first year and many of those opinions are from our nation’s most prestigious judges. No, what I mean is that law students are not actually asked to consider what justice is, and therefore, why we even have a legal system in the first place. From whence comes this enigma? How can we exhaust so much time, energy, and painstaking devotion to minting new lawyers and judges without truly understanding why we’re doing it?
Aristotle’s “principle of finality” may help us answer this question. In short, the principle states that every action, or set of sequential actions, is undertaken for the sake of an end.[1] This end gives shape and content to those actions and guides their development. In the tradition of classical legal education, which has been dormant in America since the emergence of the Harvard Case Method, students were taught that the end that the judiciary aimed at was justice.
So, the question becomes: for what objective does our modern legal academy act? Since the reign of legal positivism began, most professors in American law schools are hesitant even to define justice. Skeptical of our ability to affirm nonempirical truths, today’s jurists settle for proxy definitions of justice. This skepticism is in turn handed on to students, our future judges and lawyers, who fill the moral vacuum with the common run of the day’s ideologies. Examples from the left-of-center include salient, but relativistic, cultural values such as progress or equality. For “conservatives” justice has often been replaced with wealth-maximization, especially for those trained in Law & Economics.[2] Unable to articulate a direct definition of justice qua justice, the academy avoids the question altogether, filling the resultant vacuum with values that are “here today and gone tomorrow.”
It has not always been this way. The education received by medieval law students trained in the ius commune provides a stark contrast to our modern curriculum. Instead of being thrown into the minutiae of torts or contracts during their first year, students were first imbued with the gravity of their vocation. They began their studies reading Justinian’s Institutes, the first of the Roman emperor’s four-part Corpus Juris Civilis. The Institutes is an introductory textbook for law students and its first two sentences begin appropriately by providing two crucial definitions. The first is justice, which is “the set and constant purpose which gives to every man his due.”[3] The second is for jurisprudence, which is “is the knowledge of things divine and human, the science of the just and the unjust.”[4] By grounding students in the purpose of law before the law’s content, the early European law schools trained generations of natural law jurists who went on to serve as the backbone of Christendom. We would do well to heed Justinian’s advice when he cautions against “burdening the [beginning] student’s memory, as yet weak and untrained, with a multitude and variety of matters”[5] before grounding the students in the dignity of their vocation as guardians of justice.
While English lawyers did not receive the same intensive study in Roman law as did their continental counterparts, their knowledge of natural law and the judiciary’s purpose was nonetheless communicated through their unique education system. English jurists received their formation in legal and moral reasoning under the tutelage of practicing lawyers at the Inns of Court, or in the private libraries of their tutors, where they had access to the works of both English and continental natural law jurists.
Early American jurists inherited the English model of legal education, which was centered on apprenticeship, but by the time the United States obtained its independence Blackstone had written his marvelous Commentaries on the Laws of England. Much like the medieval continental lawyers who treated the Roman Law as an authoritative source and the perfection of legal reasoning, American jurists at the time of the Revolution rooted their entire legal formation in Blackstone’s Commentaries. The Commentaries are a comprehensive synthesis of all English common law up to their time of publication and are infused throughout with natural law reasoning. This is to say nothing of its lengthy introduction, which is an impeccable treatise on the natural law and its relation to human law, formulated in complete harmony with philosophers Hooker and Aquinas, but in the sweet prose so characteristic of an English gentleman.
How we traveled from then to now is a long and disappointing story, but it is worth noting here just a few crucial turning points. As the 19th century proceeded, American jurisprudence began ossifying into classical jurisprudence’s evil twin, legal formalism. This opened it to the attacks of metaphysical skeptics who undermined the epistemological basis of natural law-rooted common law. Two successive blows wiped out classical legal education and created the situation that more or less persists to this day: first, the introduction of the Case Method at Harvard[6], and second, the rise of “legal realism”[7] as a jurisprudential philosophy. The Case Method has persisted in unmodified form since its introduction, while legal realism has morphed into every conceivable form of legal reasoning, from Living Constitutionalism to Law and Economics.
So where do we go from here? As things currently stand, law schools are churning out highly paid technicians, but certainly not lawyers in the fullest sense.[8] The overreliance on reading cases without any prior grounding in moral philosophy leads to a form of rigid textualism. Legal reasoning in opinions and briefs is now entirely dependent on “proof texting” with little room for moral reasoning, as the marker of success is who can compile the most case authority. A situation has emerged not too dissimilar from one’s hearing opponents scream isolated bible verses at each other during a “young earth creation” debate. Unable to understand how legal doctrines fit into an organic and interconnected whole that is governed by the common good, students instead are taught to pile up citations upon citations, backed by more citations to case precedent. I call it the tyranny of stare decisis, which, although a noble principle in itself, can serve as an excuse for lawyers to turn off their brains.
What we need is a legal education that understands the “order of the sciences.”[9] The lawyers and judges of earlier eras understood that truth presents itself to the human mind in an ordered hierarchy. This means that certain fields of human knowledge are subordinate to other fields of human knowledge. In the case of jurisprudence, a practical science, it is subordinate to the higher science of politics, which in turn is subordinate to moral philosophy, also known as ethics. The order of this hierarchy becomes apparent when we consider that the goodness of human law is measured by its alignment with the natural law. In other words, human law itself is not the source of its own goodness, and we cannot judge the goodness of a particular human law just by reference to other human laws. Rather, we must resort to the principles of a higher science to make that determination, which is where the natural law, belonging to the domain of moral philosophy, steps in. Jurisprudence must also borrow principles from the science of politics, since it is to that science which the determination of the common good belongs, knowledge of which is crucial to the administration of justice.
The legal tradition of Christendom has also historically recognized theology as the highest science, which being divinely revealed by God, has the right to purify those sciences below it in the hierarchy. The classical jurist could not deny the utility of having the Ten Commandments as his basis for moral as well as legal reasoning, since the two were inextricably bound together. Moral principles do not originate in the science of jurisprudence but are nevertheless essential to the judiciary’s work of attaining its end, which as we have stated, is justice. With this hierarchy of truth in mind, we can more fully appreciate Justinian’s definition of jurisprudence, which, to restate, “is the knowledge of things divine and human, the science of the just and the unjust.”
After surveying the landscape of the current legal academy, it is difficult to see a way forward. The ABA essentially has a stranglehold over each school’s curriculum and departing from it means losing accreditation and plummeting in the US News rankings. But all hope is not lost. While a wholesale reform of legal education, such as one notable proposal made recently by Professor Brian McCall[10], would be ideal, we will need to start with slightly humbler ambitions. First, students who detect a legal vocation in their undergraduate years should focus their education on moral philosophy. A liberal arts degree from one of our many great classical schools is an ideal preparation and reflects what the medieval students received before commencing their legal studies.
Law schools themselves should follow Notre Dame’s lead in mandating a course in jurisprudence. The readings should center on Aquinas’s Treatise on Law and follow the development of jurisprudence to our present day, giving pride of place to the natural law and our common law tradition. In this same course students should gain familiarity with the legal maxims derived from Justinian’s Digest, which played a vital role in organizing the common law into a rational whole. Next, students should have a deep grounding in British and American legal history, including the Founding documents. The absence of a required or recommended legal history course is perhaps what most contributes to our historical amnesia about what jurisprudence really is. To understand our constitutional system and the values that drove its formulation, studying the history of English constitutionalism is indispensable.
Lastly, and perhaps most importantly, is that students need to read Blackstone. He is the great master of the common law, and along with our readings in torts, contracts, and property, we should be reading his works to help guide our thinking on these matters. Many will object that British common law is not American law, or at least it is too dated to be of use. The objection is well intended but entirely misguided. No where in Europe was the Roman law in effect when the medieval jurists began to study it. That is not why they studied it! Instead, they looked to the masters of Western legal education to understand the principles of free and virtuous republics and transposed those principles into their own time. This is the work of sophisticated jurists who are conservative in the truest sense. Along with Blackstone we should read James Wilson’s Lectures on Law, which to this day is unmatched in articulating the natural law basis of America’s founding and interpreting the common law tradition in American terms. Ideally, reading Wilson should be paired with our courses in constitutional law. I know heads are already spinning at how we can possible read James Wilson alongside all the assigned cases! My answer is that that is precisely the point: read less cases, read more jurisprudence.
To conclude, I will pose the central question for legal educators today: Do we want a profession full of legal technicians, replaceable by “Judge.AI,” or one full of sophisticated jurists, capable of moral and juridical reasoning? The purpose of the law and gravity of our vocation as lawyers is too exalted to leave it on the plane of what can be replaced by robots. Law is inherently tied up with the transcendent meaning of man – the right ordering of relationships and the right ordering of creation. If we ignore that in legal education, we have missed the entire point.
[1] See Aristotle, Physics II.8
[2] Richard A. Posner, The Concept of Corrective Justice in Recent Theories of Tort Law, 10 J. Legal Stud. 187, 201-06 (1981).
[3] Justinian, Institutes § 1, (trans. Alan Watson).
[4] Id.
[5] Id.
[6] See Brian M. McCall, Beyond the Narrow Harvard Model of Legal Education: Restoring Legal Education according to the Proposals of Valentine Tomberg, 48 U. Dayton L. Rev. 1, 9-14 (2022); Ralph M. Stein, The Path of Legal Education from Edward I to Langdell: A History of Insular Reaction, 57 Chi.-Kent L. Rev. 429, 450-53 (1981).
[7] See Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935); Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
[8] The paradigmatic view of lawyers as guardians of the common good in American democracy comes from Alexis de Tocqueville, Democracy in America Part I Ch. XVI. “In visiting the Americans and in studying their laws we perceive that the authority they have entrusted to members of the legal profession, and the influence which these individuals exercise in the Government, is the most powerful existing security against the excesses of democracy. . . . Lawyers belong to the people by birth and interest, to the aristocracy by habit and by taste, and they may be looked upon as the natural bond and connecting link of the two great classes of society.”
[9] See Rafael de Arizaga, Jurisprudence as a Subaltern Science, Ius & Iustitium (Sep. 7, 2020), https://iusetiustitium.com/jurisprudence-as-a-subaltern-science/.
[10] See McCall, supra note 6.
