Values have no place in legal argument.
The system does not care what you believe. And, to the extent they can be ascertained, the system’s own values are of dubious pedigree: Nationally, our collective morality has sustained slavery, sexism, racism, anti-semitism, homophobia, xenophobia, class-based exclusionism, and virtually every form of paternalism imaginable. [Click here for an example of how even the best of intentions can exemplify the narrowness of a culture's norms.] The legacies of most of these prevail today, to a greater or lesser extent and with more or less consciousness. On those occasions when courts or judges or legislators or kings have explicitly relied as the basis of their decisions upon their own values or those they fancied the society to hold, hindsight and other cultures have not been kind. Few decisions are as embarrassing as those in which the court’s or the culture’s unsupported beliefs are the driving force behind the holding. See, e.g., Buck v. Bell, 274 US 200 (1927); Korematsu v. US, 323 US 214 (1944); Barenblatt v. US, 360 US 109 (1959).
It is, thus, frightening to imagine at the end of the 20th Century what the world would be like if the mainstream values of the mid-19th century continued to form a legitimate, even the primary, basis for authoritative legal argument. Moreover, it is sobering to think that our present values are not likely to be judged much more kindly a half a century from now. The brief shelf-life of seemingly absolute moral or social precepts makes the notion that legal argument should be founded in reason rather than belief a haven in a normative storm.
This is one of the reasons why civil procedure is an important course in the first semester of law school (even more important, perhaps, here, at a school that explicitly embraces the importance of individual values in the practice of law): Procedural justice serves as a failsafe to prevent the worst excesses of substantive injustice. And yet, procedural justice &emdash;&emdash; playing by the rules &emdash;&emdash; is not the same as real justice &emdash;&emdash; getting the outcome right. The rules themselves can be tainted, even evil, and, if they are, no amount of fair procedure will render the outcome legitimate. Still, procedural justice beats its primary alternative: leaving the decision up to the fiat of an arbitrary and absolute decision maker. Permitting decisioons based on values rather than argument is only appealing so long as the values relied on are mine. Once someone else gets a shot, that legal system is autocracy at best, tyranny at worst.
As political philosophies go, those that acknowledge that how one gets to the outcome is frequently as important as where one is headed seem safer than those that rely solely on adherence to someone’s values as the source of authority or. Good procedure can render more acceptable if not, in the litigant’s view, more just a loss on the merits notwithstanding the continuing belief that he or she was in the right (and virtually every litigated case involves at least one loser).
It’s important, then, to make three distinctions:
- Fairness is not the same as justice.
- Legal argument is not the same as legal virtue.
- What lawyers do, and how they act, is not always the same as what they believe.
Law school, by and large, exists to help you get better at legal argument, at learning the tools of your trade. And those tools, by their very nature, check their values at the door. What you argue is not the same as what you believe; and arguing well is independent of articulating those beliefs.
Indeed, to a great degree the tools of argument exist almost exclusively for the purpose of distancing and minimizing the role of our individual values (and those of the decision makers) from the allocation of social goods. One might even say that one of the central purposes of the law is to distance decisions from decision makers (and decision makers from their personal moralities), to hold decision makers accountable to an abstract standard of procedure and logic that transcends the narrow contemporary values of the judge or the society. One of the great failings of our legal system is the degree to which it fails to maintain these ramparts, the extent to which the values of the times and the decision makers inevitably affect, permeate, and determine decisions
All the more reason to insist that decision makers, and those who seek to convince them, nevertheless couch their arguments in the cloak of reason rather than belief, an alternative and more defensible source of authority than the simple appeal to the force of their (or the society’s) current views.
We, therefore, will spend virtually all of our time in Seminar focusing on the components of legal argument, the skills that argument draws upon, the ways to maintain and wield the weaponry of our craft.
It is difficult to accept participation in a system designed to neutralize one’s personal values, to seek to achieve good outcomes via value-neutral tools, to accept the validity of decisions whose moral worth one continues to challenge. And yet, when you applied to law school you anted up to the law. If you don’t trust the dealer, you have to be stupid or crazy to join the game.
When you become a lawyer you enter a relationship as profound as any you will engage in in your life. And, as in any intense relationship, there are two ways to doom things from the outset: If you believe your partner &emdash;&emdash;the law &emdash;&emdash; to be perfect, the law will inevitably break your heart. If you expect that hard work, intense commitment, and the rightness of your vision will cause your partner to change, to become the law you believe it should be, the law you wish it were rather than the law as it was when the relationship began, you will find yourself increasingly alienated from your work with each passing day.
The law is a demanding lover; to feel fulfilled as a lawyer, you can’t demand that it change; you have to accept the law, unjust outcomes and all. Change does happen &emdash;&emdash; just behind revolution and civil disobedience (not typically the tools of lawyers, even when they are engaged in by lawyers), working within the law is the most powerful tool there is to affect social change &emdash;&emdash; and you may have some impact on making it happen. But if you predicate your relationship with the law on the necessity of any particular change you will surely diminish your effectiveness and generate little but bitterness and gall.
In this course, and perhaps in others as well, the lawyer’s role may seem Machiavellian, manipulative, ends-justified, and devoid of moral compass. We will try to learn how to argue for things we don’t necessarily believe (or, perhaps more dispiriting, to learn to believe in the things we argue for). We will look for loopholes. We will try to drape our pleadings in the prejudices of the decision maker. We will seek to dominate through submissiveness, prevail by yielding, run roughshod over those who get in our way.
In this course I will not spend much time asking you whether you think the law we study is good or evil. I won’t much care whether you can articulate arguments sounding in social policy. It does not matter to me, in the context of this course, what your personal values are or how they make you feel about your client or your work. As lawyers, no matter what our politics, no matter how marginalized we feel, we are part of a system and our actions within that system can only be judged by the outcomes we generate. A losing argument partakes of less nobility than a winning one, no matter what its moral lineage. A losing client loses no less permanently or poignantly when the argument with which we lost sounded self-righteous.
It doesn’t take much courage to bet on long shots when you’re playing with someone else’s chips. Our strategic choices affect the client’s outcomes, not our own. That imposes a special obligation on us not to sacrifice the client’s goals on the altar of our values.
So this is fair warning that, in my classroom, the justness of your argument is not a sufficient foundation on which to build its pedigree. When I ask for the source of your authority, I expect a statute or a case (and I expect its exact words and the capacity to take me to those words in print), not a reference to truth, justice, God, or the American Way.
When we get done four months from now, I hope that you will be able to argue well and passionately externally, while remaining calculating and coolly dispassionate internally. I hope that you will learn to wield passion as a weapon, to use values as tools, to think strategically rather than morally, to be able to articulate the other side’s view with the same neutral clarity and precision that you can articulate your own. Only by learning to inhabit the skin of your adversary, no matter how repugnant his or her views, can you adequately serve your client and your vision of the good.
Enough hired gun exhortation. The claim that values have no place in legal argument is stark, and perhaps controversial (despite the centrality of that claim to the pedagogy of much of modern legal education).
BUT WAIT! THERE’S MORE!
It is urgent that you also recognize that this claim &emdash;&emdash; that your values should be kept out of your argument &emdash;&emdash; is a far cry from the suggestion that values and morality have no role in your relation to the law or your work. [The capacity to recognize a subtle linguistic distinction like this one is but one example of the importance of dispassionate analysis in legal argument: you must clear the cultural wax from your ears, you must pull the normative gag from your mouth. Otherwise you’ll miss crucial nuance. If you don’t follow this distinction between keeping your values out of your argument and keeping them out of your work, stop right here and think about it, talk with colleagues about it, raise your questions in class, don’t just let it slide by.]
I would argue that the more radical the disjunction between one’s values and one’s tools, the more vital the link between those values and the choices one makes in the exercise of those tools (for those reading Hart and Fuller in tandem with this memo, that puts me pretty squarely in Hart’s camp, I suppose). It is a subtle corner to turn, and the grand tradition of the past fifty years of legal education has been to strand students at this intersection without pointing out that YIELD does not mean GIVE UP. Students and lawyers have come to feel that moral relativism is supposed to be their natural habitat, that the hostility of legal argument to values renders norms anathema to law itself. Although nothing could be further from the truth, there are good reasons why this happens:
Perhaps it is simply that, after three years of rigorously rooting values out of one’s speech and analysis and thought, it becomes habit: in the process of training oneself to avoid linking argument to belief one develops an aversion to the sound of belief in any context. But we teachers are more culpable than that. The flat message of the first section of this memo, unleavened by this latter homily, is that lawyers value valuelessness.. We are telling you to value cynicism, valuelessness, relativism, and neutrality in your argument. Why should you not conclude that teachers want (and the profession wants) all those qualities in your soul as well?
More, the most pervasive reason why law school frequently renders its victims emotional paraplegics is that there is a profound and troubling effect of becoming expert at legal argument. That effect is so devastating in fact that many people struggle, consciously or not, against acquiring the tools of argument lest they be dragged along in this bitter spiritual undertow.
We have all grown up linking advocacy to the things we believe in, arguing for that which we believe to be right and true and good. We have names for people who don’t develop that linkage (psychopaths, sociopaths, somewhat more kindly, perhaps, casuists or lawyers). Argument is linked to rightness; justified by it, legitimated through it, redeemed by virtue of the connection between the two.
When I tell you that your values have no place in your argument, then, I appear to be asking you to sever that link. And the absence of such a connection constitutes a sort of moral free fall. If values do not legitimate argument, if they are not themselves ratified by the power of our advocacy, if advocacy is free to be used neutrally, relativistically, arbitrarily, how can I assert the primacy of my values over another’s?
And if I cannot assert the primacy of my values, aren’t those values simply one arbitrary choice among many? If argument does not support morality, all that is left is blind faith. Lawyers often seem to freeze right there like rabbits facing oncoming headlights, to become immobilized by the transition from faith to truth. And yet, it is possible to believe deeply, and to found one’s actions on one’s beliefs, without being able to prove one’s beliefs or in the neutral logical arena of legal argument.
So just as much as I am warning you that your argument needs to be founded on a source of authority more objective than your own views and beliefs, I am urging no less strongly that the choices you make about when and how to use those tools must be guided by your moral compass. Anything less will leave you reeling, dizzy, without anchor.
Argument may not support morality, but morality must undergird argument. The more potent the tool, the more urgent that it be wielded responsibly. We in class will focus on the soundness of your argument; you yourself must retain responsibility for its legitimacy and the soundness of your choices.
So, ultimately, I am suggesting that the very moral neutrality of legal argument demands and vivifies the need for ongoing grounding and belief, faith, in one’s moral bedrock. It’s all there is, the justification for what we do, the foundation for each and every one of our decisions.
But that bedrock does not provide or determine the tools to effectuate our decisions, and law school exists to focus on and nurture your skill at selecting and using those tools.
You must be able to face your clients’ questions about the quality, professionalism, and effectiveness of your representation of their cause, and this course seeks to make that easier to do. But you must also be able to face yourself in the mirror each morning, and respect the image of the person you see there. This course will thrust you up against that daily challenge, but it won’t do much to help you meet it. That part is up to you.