August 10, 2004

Legal and Christian Ethics

by PG

University of Houston grad Amanda Strasser describes what she wants from her law school education:

I am leaving in August for a school that starts every class with ten minutes of Bible Study or worship. They teach in the classroom that Christian lawyers need to try to keep our Christian brothers from suing each other in court (1 Corinthians 6:1-8). The classes seriously explore in what manner and to what extent principles of Biblican Dispute Resolution (Matthew 18:15-17) can be applied to lawsuits brought by non-christians. None of that ever crossed my mind until I was reading through materials Regent sent me with my acceptance letter.

I want to be challenged intellectually and spiritually. I want to study law in a vibrant, but encouraging, atmosphere - rather than being surrounded by cutthroats. God gave me these desires, and He has shown me the way to go.

While I would find the Christianity-specific aspects of Regent discomforting, the idea of infusing ethics into legal education is highly appealing. Law schools, like business and medical schools, divide ethics from the rest of the curriculum, into the ghetto of a single "Professional Responsibility" course that most students regard as a joke. This isn't even peculiar to graduate study; a friend in Michigan's undergraduate business school frequently complained that she was taught how to manipulate numbers and consumers, but not whether such manipulation was desirable.

However, apparently the only way to get an ethically-integrated legal education is to attend sectarian law schools. Unfortunately, I don't see the Bible -- or Torah, or Koran -- as a persuasive authority, so such schools will have little place for me.

Even the specifics cited by Strasser look implausible and unrealistic to me. I am strongly in favor of alternatives to litigation, so much so that I may specialize in mediation, and agree that lawsuits themselves represent a failure in defendant and/or plaintiff to come to an agreement. Yet even people who call themselves Christians wrong and defraud one another, and when they do and refuse to admit guilt or pay restitution, the victims must be able to seek justice in the courts. Lawyers ought to be trained to prefer resolving disputes outside courts, not because St. Paul demands it, but because doing so minimizes costs to society and to the parties involved. But they also have to know how to win a case in court if that becomes necessary.

Biblican Dispute Resolution strikes me as more likely to induce further ill-will than to resolve actual disputes, depending as it does upon a small community in which shaming might be an effective tactic. It seems well-nigh useless for the impersonal litigation between individuals and large institutions, or among the large institutions themselves, that constitutes the majority of civil cases. If shame were effective, Jeffrey Skilling would not be in court; he would have admitted his wrongdoing and tried to help those hurt in Enron's crash.

There are some cases, such as divorce suits, in which the parties just need to be nudged into a more amicable frame of mind and reminded of their duties to one another. In such situations, people have gone to law more out of anger and spite than out of real need. In many others, however, a real disagreement exists.

For example, how would one settle the argument between thousands of same-sex couples who wish to get married, and the states that refuse to recognize their unions, without resorting to the courts? (I realize that Regent University probably wouldn't see this as worthy of being a case, but that's another reason why I wouldn't fit in there.) Same-sex couples believe that they should be granted the same rights and privileges accorded opposite-sex couples. States disagree. How to resolve this dispute?

Paul asks, "Is it so, that there is not a wise man among you? no, not one that shall be able to judge between his brethren?" Yet judges, our secular equivalent of the church elder, are scorned as undemocratic and out of touch. We resign our fates to twelve of our peers in the idealistic hope that these "least esteemed in the church," or in society (is there a Christian duty not to wiggle out of jury service?), will decide in accordance with our community's beliefs about justice.

No, a sectarian law school is not for me. At the same time, I envy Amanda's eagerness for law school. I look forward to it as well, but I don't assume, as she seems to do, that it will make me a better person. A more educated, knowledgeable, skilled person, certainly, but not necessarily improved in my ability to decide whether I ought to take a client's case or not.

August 10, 2004 09:11 PM | TrackBack
Comments

Religious dispute resolution is great for people who both submit to it. As in ADR, its been going on since at least Soloman.

Some call it cutthroat, I call it zealous advocacy.

Nevertheless, I am sure that she is just as curious how she will answer the questions you pose.

Posted by: expatlse at August 11, 2004 04:28 AM

"Mediate not, lest ye be mediated." How would an Evangelical Christian mediator handle a dispute between a Catholic and a Lutheran, or a Mormon? Would constitutional issues be tempered by the Old or New Testament?

Posted by: Shag from Brookline at August 11, 2004 08:09 AM

As in ADR, its been going on since at least Soloman.

Some call it cutthroat, I call it zealous advocacy.

Expatise, I'm trying to decide if that was intentional or not. Certainly Solomonic ADR would be cut-baby?

Posted by: A. Rickey at August 11, 2004 08:32 AM

After attending a public law school and then teaching at one, I am now teaching at a Jesuit law school. The difference is hard to describe. Ethics permeates most courses and most discussions, and professors are urged to treat all students as persons - "cura personalis." The atmosphere in a Jesuit institution is very inclusive, with much of the religiosity exhibiting itself in a sense of social justice. I'm sure that for devout Catholics, the result is too watered-down, but I think for the student body as a whole, the result is very balanced. As for ADR, you may want to look at schools that have restorative justice programs, which focuses on parties being made whole in non-economic ways.

Posted by: Christine at August 11, 2004 09:40 AM

I would add to what Christine says and reccomend that the woman check out Pepperdine. It is a Christian law school, but has an ADR program rivaling Harvard's. Moreover, it provides a much more thorough legal education, and is above the barely getting ABA certification level that Regent is. Lastly, its in Malibu.

I did not go to Pepperdine (disclaimer).

Posted by: expatlse at August 11, 2004 10:44 AM

A little sarcasm: With regard to Biblican Dispute Resolution: Matthew 18:15 says, "15: Moreover if thy brother shall trespass against thee, go and tell him his fault between thee and him alone: if he shall hear thee, thou hast gained thy brother."

I would amend it to read: 15: Moreover if thy brother shall trespass against thee, go and tell him his fault between thee and him alone: if he shall hear thee, thou hast gained thy brother. If not prayest he not shoot thee where thee stand.

Posted by: Fool at August 11, 2004 11:44 AM

So, I'm gonna have to get trackback enabled so I know who's talking about me.

Not till after I get moved though.

Couple observations:

1) I don't necessarily advocate the "going to your brother" approach outside the context of Christian brothers who profess to be bound by the Scriptures. I agree that going to you, for instance, with a Bible Verse or something wouldn't necessarily be useful - also, as Fool mentioned, it just might get you shot.

2) I'm not trotting off to Regent with the intent of becoming "a better person." I'm not that glib. I'm convinced that personal virtue is a result of Christ working in me, not some course of study or drills(like the torture of law school) I can come up with. Like yourself, I want to be trained. I am convinced that what a person believes determines the way he or she acts. What excites me about Regent is that I want to be trained to think harder about what I believe and why.

I have spent the last four years at a totally secular school. I have had every argument from every religious and non-religious perspective (and a nice dose of random bizarreness) thrown at me - and it has been great training. I understand people so much better than before I started college. Now I want more specifics for my future in law. But forgive me, I'm rambling.

My question for you would go something like this: if you don't find any religious authority compelling, how would you envision a "non-sectarian" law school incorporating ethics into classes? It sounds good, but I can't imagine what would be cited as an authority. Majority rule has been proven historically disastrous.

Also, the excitement you envy still lingers - even mixed with the last-minute fear. You see, I'm going to do something I love and believe in. I know most of the world doesn't buy the set of absolutes I've chosen to guide my life. But it's all good. It's where the joy comes from.

Glad you came by. if you don't mind - how did you end up that far back in the archives?

Posted by: Amanda at August 11, 2004 05:37 PM

Amanda,

While I am not an aetheist, I can easily envision codes of ethics without religion involved. Applying the Golden Rule for one thing.

The social contract theories do not all require a divine force.

Posted by: expatlse at August 11, 2004 05:55 PM

Yeah, my half of my undergrad was in political theory. I do know social contract theory.

I just don't see any reason in all that to apply "ethics" in law school. Lawyers are at the top of the food chain. They tend to be the best and brightest. If they can "scam" people without getting caught (demonstrably breaking some aspect of the social contract), there is no glib answer why they should behave any other way.

They are doing what is best for themselves. Self-interest drives a free market, and even tends to benefit the whole. Telling people they should take care of those who can't do them any harm or any good (when no government can enforce that mandate) requires something larger than mere social contract.

Posted by: Amanda at August 11, 2004 10:08 PM

Not necesarily so, Amanada:

There is always doing good for selfish reasons. For example, one can work in soup kitchens because they feel good about themselves afterwards. Do not discount the power of altruism when it comes to ego. lastly there is always Alexis de Tocqueville's conception of self-interest properly understood. That is, we do good around us in our community at large, because it has a positive impact on us. (e.g. helping homeless people get jobs, gets more people employed, lowers crime rates, makes our economy better, yada yada).

Posted by: expatlse at August 11, 2004 10:58 PM

There are also utilitarian theories to explain as well.

Lastly, there is also the all powerful: just bein' friendly.

Posted by: expatlse at August 12, 2004 08:29 AM

No, I totally agree with you there. The virtue of selfishness is a powerful force.

I'm just wondering about an underlying reason to be "nice" to people - when it's hard to do so. For example, an attorney absolutely can take advantage of all kinds of situations. Why not do so when everyone benefits except the client? Why take a bullet if you don't have to? The eventual goal of "a better society" can be far off when pain is up-close.

Posted by: Amanda at August 12, 2004 11:33 AM

I guess we can all take advantages of situations, but we do not. Many athletes do not take steriods that are untraceable, because it is just plain wrong.

I won't take advantage of people, because it is wrong. Call it the philosophy of "It ain't coolism."

Nevertheless, have wonderful three years of law school, and a great career as an attorney. You may want to check into some Christian dispute resolution services, which are the same as arbitrations, but the parties agree to have biblical principles decide the issues. Some neighbor disputes and small fender bender disputes have been settled this way.

Posted by: expatlse at August 12, 2004 12:03 PM

if you don't mind - how did you end up that far back in the archives?

I was checking in at Courreges and noticed that you'd mentioned going to Virginia for law school in a comment there. Curious as to whether you were going to UVA, I searched your archives for "Virginia" and found out that you were going to Regent, and I found your post on the school very interesting, particularly in contrast to the reasons people were giving me to choose one school over another.
No one has advocated Georgetown on the basis of its being a Jesuit school. (And the only thing I know about the Jesuits' influence on GT is a negative fact: that GT does not provide partner benefits for its employees. Then again, neither does UVA. Jesuits, VA legislature, what's the difference?)

My question for you would go something like this: if you don't find any religious authority compelling, how would you envision a "non-sectarian" law school incorporating ethics into classes? It sounds good, but I can't imagine what would be cited as an authority. Majority rule has been proven historically disastrous.

I don't think that one needs a single religious authority to teach ethics effectively. The ethics classes that do exist for professional schools rarely incorporate religion specifically.
I majored in bioethics as an undergrad, and while the intersection of religion and ethics was a large component of my studies, no religion was advocated as having the Right Answer to all dilemmas. Instead, students were encouraged to draw on multiple ethical traditions, including secular theories of liberalism, feminism, communitarianism etc., to form and defend our opinions.
Honestly, relying entirely on a single religious authority as the basis for teaching ethics strikes me as dangerous, because what if someone loses faith? Where will he find his moral compass?

I envision a secular law school's incorporating ethics into all classes by making the question "What is the ethical choice?" as common as "What is the legally permissible choice?" I would like to see students' debating the ethics of a particular line of argument just as they debate its constitutionality. I realize that the former discussion is less likely to yield a single Right Answer than the latter, but part of an education is realizing that not everyone will have the same answer to a question, and that an answer can be right for one person while being wrong for someone else.

I suspect that the lack of such discussion is what leads to the superiority that law school grads feel toward each other's careers. As I've noted before, some feel contempt for the plaintiffs' bar. Some despise those who work for large corporations. Frank and frequent law school conversation about ethics might avert this problem of post-graduation "you've made an immoral choice" attitudes.

Posted by: PG at August 12, 2004 04:24 PM

On the subject of legal ethics, see the August 11, 2004 ON EDUCATION column by Samuel G. Freedman in the NYTimes "Challenging Ethical Training of Lawyers", which focuses upon Thane Rosenbaum who recently "collaborated on a jeremiad against the legal profession titled 'The Myth of Moral Justice'". Hopefully this will restart a meaningful conversation on legal ethics.

Posted by: Shag from Brookline at August 14, 2004 08:26 AM

It's encouraging to see a discussion of religious topics conducted so thoughtfully and congenially. That's certainly the exception around the Internet.

As for a system of ethics that is not based on religious belief, I would point out that that is what the Model Rules of Professional Conduct and their predecessors have aspired to be.

Posted by: Tom T. at August 17, 2004 09:27 PM
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