A Vision for Legal Education
In order to discover the rules of society best suited to nations, a superior intelligence beholding all passions of men without experiencing any of them would be needed. This intelligence would have to be wholly unrelated to our nature, while knowing it through and through; its happiness would have to be independent of us, and yet ready to occupy itself with ours; and lastly, it would have, in the march of time, to look forward to a distant glory, and, working in one century, to be able to enjoy in the next. It would take gods to give man laws. [Jean Jacques Rousseau (1712-1778), Social Contract, Book 2, Chap. 7.]
God, “gods,” or man – who is the ultimate source of law? The answer most law professors give today is “man” and “man alone.” To other educators, the question itself is meaningless because they do not believe they are studying law so much as the political/legal use and abuse of power. However, many people still believe that law is real and that its real purpose is to render justice to all people.
It is ironic that as our culture becomes more dominated by legal regulation, legal counsel which is competent, affordable and truly lawful or just in its perspective becomes less available. Many view the legal profession to be in a state of moral decline that is accelerating a moral decline in the culture. The individuals within the legal profession in turn have been greatly influenced by their teachers – the law schools of America. Yet, modern legal education has little moral guidance to offer future students other than more of the same positivistic, relativistic and humanistic ideals which many believe lie at the heart of the problem.
As a voice crying out in the wilderness, lonang based legal education seeks to understand and explain the truth that God is the ultimate source of law. It further declares that to believe otherwise will inevitably destroy the life, liberty and prosperity of Western culture, if not that culture itself.
Questions about justice are fundamentally religious. This is naturally denied by those who think that the separation of church and state is a doctrine providing them with the means to structure the political order to the exclusion of Christian belief. But there is no such thing as law that does not assume a particular configuration to reality, which does not at least pretend to tell what kind of values are to be considered ultimate. That is why the establishment of justice as the aim of biblical world view must encompass the changing of the political system. [Herbert Schlossberg, Idols for Destruction (1984).]
There are over 700,000 licensed lawyers in the United States, or one lawyer for every 430 Americans. Altogether, there are about 210 schools of law in the United States (174 accredited by the American Bar Association), graduating about 40,000 attorneys per year. Never before has America been more law-oriented, yet skeptical of law, or more in need of justice, yet doubtful of its attainment.
One might think with the great number of lawyers we have in America that the legal profession is exerting a positive influence to change society for the better. Sadly, this is not the case. According to recent polls, Americans rate being a lawyer as one of the “sleaziest ways to make a living.” Recent Gallup polls also indicate that most Americans think America lacks moral leadership, everyone is becoming a “law” unto themselves, and that the country is headed in the wrong direction. Many lawyers, judges, law students, law professors, and government officials, regardless of their philosophy, share this discontent, They are wondering what has happened to the “soul” of the legal industry as it tries to help society, but is perceived as only contributing to the problem.
With the official tolerance of public pornography, abortion, gay rights, divorce on demand and growing taxation, and intolerance of religious and other liberties, it is no wonder that the institutions of society, especially the family, are in a state of accelerating breakdown. What were once accepted social norms and honored traditions are now viewed by lawmakers as outdated stigmas of the Dark Ages. Public officials commonly decry the breakdown of society, but the fact is too few even know what a “whole” society would look like. Many officials simply want to reshape society according to their own ideals without regard for any objective standards. Their desire is understandable in an educational system that has taught them there are no absolute standards they can rely on except themselves.
As if these social ills weren’t enough, public officials, many of whom have been legally trained, are experiencing varied crises of personal and professional integrity. Political candidates for the nation’s highest offices admit to having extramarital affairs. Officials of all kinds are reported to be selling votes for sexual favors. The keeping of professional ethics standards is at an all-time low. Lawyers of every kind are reported to be having difficulty enforcing or obeying legal ethical standards. It is popularly perceived that an unprincipled lawyer will do whatever serves his or her momentary self-interest just to be competitive in the legal marketplace. This is moral corruption in the highest degree, and its impact on the way people legislate, enforce and judge laws is very real. Consequently, lawyers are to a large degree perceived to be contributing to the problems of society, rather than solving them.
Of the 30 or so American law schools operated by organizations with a religious mission (mostly Roman Catholic), none are known to actually integrate lonang principles into their formal curricula and institutional character. Indeed, two of the schools most loudly proclaiming their commitment to historic legal principles and a religious perspective both ejected their most lonang-oriented faculty members in 1993-94. The Ave Maria law school in Ann Arbor, Michigan is perhaps the most conservative law school in America, but it does not actually attempt to integrate lonang principles into its curriculum.
Reform of the legal industry is long overdue. Such reform must necessarily include, if not begin with, legal education.
[M]any leading thinkers contributed to the erosion of the American legal foundation, among them Rousseau . . . Comte . . . Darwin . . . Spencer, Langdell and others who applied evolutionary and positivistic thought to the legal system. As a result, the American legal system is floundering on a sea of evolutionary positivism which regards law as man-made and ever-changing rather than based upon any absolute and unchanging principles of the law of God. As a consequence, human rights are insecure, human responsibilities are downplayed, laws do not carry respect, and there is no check against tyranny since there is no longer any agreement upon or observance of the higher laws of God by which man’s laws are to be judged. [John A. Eidsmoe, doctoral field study, June 1985.]
From America’s beginnings in the 17th century to its establishment in the late 18th century, many of its leaders sought to found the nation’s legal and political systems upon lonang principles which they believed to have been given by God to man to order his social relations. In their colonial charters, the settlers often relied upon religious injunctions to justify under international law their intrusion into the New World. In 1776, the Declaration of Independence cited the “laws of nature and of nature’s God” as the legal authority for the new nation. The form of state and federal constitutions were “social compacts” patterned after the divine covenants revealed in the Bible. And, the founders intentionally adopted the English common law, in some measure patterned after God’s law, to govern the daily affairs of the people. It was the codification of these common laws that formed the bases for the first statutory laws in the United States.
Not surprisingly, America’s earliest efforts to educate its people for leadership in law and politics focused upon the laws of God. America’s lawyers were educated by reading Sir William Blackstone’s Commentaries on the Laws of England and Chancellor James Kent’s Commentaries on American Law. Blackstone explained that Man, as a creature of God, is entirely subject to the laws of the Creator, and that he should always conform to his Maker’s will, also called “the law of nature.” Human laws which violated this law of nature were not valid.
Not only did students study legal treatises based on a lonang understanding of law, but they studied the Bible itself as a source book of the foundational rules of property, torts, contracts and crimes. The question was not whether biblically-based legal education was needed, but why anyone would want to approach legal studies any other way. It was commonly accepted that the true nature of America’s legal and political system could not be understood except by studying its biblical roots.
A watershed year in American legal education came in 1870 when C.C. Langdell became dean of the Harvard Law School and introduced the case method, which revolutionized the study of law throughout the United States. The importance of this change is that it introduced students to a new faith about law, namely, that man could engineer law to suit his needs as they changed from time to time. As a result, the belief in evolution (not creation) and in man (not God) as the source of law has come to dominate legal education in America. This belief about law, called “positivism,” holds that social engineering through law is the key to the salvation of society.
This belief has caused considerable problems for legal scholars, educators and judges. While attempting to prove to society that law was something fixed and settled, whose authority was therefore beyond question, these same people must allow for the law to undergo constant readjustments and occasional radical changes. It is for this reason law school catalogs today have almost completely dropped any promise that the student will learn the law after several years of study. The new goal is usually stated in terms of training students to “think like a lawyer.”
Along with positivism, the case method spawned a form of legal relativism which views law as being constantly in flux and capable of being changed at will. It rejected the prevailing opinion that although facts change, the basic legal principles are fixed, uniform and universal. Rather than learning a framework of legal rules, law students were encouraged to glean the “true” legal principles by a process of inductive reasoning after the study of many appellate cases. Cases were no longer viewed as a reflection of the law by its application in a given situation, but were seen as the primary source of law. The judge was no longer the law’s discoverer, but its creator.
Having eliminated God’s perspective from the typical law school curriculum, educators are left with no guiding principle for legal instruction apart from a weak consensus of their peers or their own personal desires for reform. This prevailing wind of humanism has weakened, rather than strengthened, the ability of graduates to function as lawyers in society. Business lawyers are often unable to advise their clients how to plan for the future because the laws may change at any time. Trial lawyers are often unable to distinguish relevant case precedent from irrelevant and aberrational cases. Public officials have no basis upon which to distinguish constitutional law from the rulings of the U.S. Supreme Court.
The effects of this system of legal education has spilled over into all of society. Law and order have rapidly deteriorated in the United States because its citizens have been taught that man is the measure of all things and that laws are merely a way for some people to get other people to do what they want. Since people and laws are subject to no higher law than what the people in power want, it is no wonder that a contempt for courts and social order results.
No generation can bequeath to its successor what it has not got . . .. If we are skeptical, we shall teach only skepticism to our pupils, if fools only folly, if vulgar only vulgarity, if saints sanctity, if heros heroism . . .. We shall admit that a man who knows no Greek himself cannot teach Greek . . . but it is equally certain that a man whose mind was formed in a period of cynicism and disillusion, cannot teach hope or fortitude. [C.S. Lewis, God in the Dock (1946).]
In contradistinction to a pragmatic or instrumental approach to determining whether law works, a lonang-based law school would teach its students to know the laws of nature and nature’s God and to apply these principles with the daily study and practice of law. A lonang-based law school would restore the framework of law based on biblical principles as a means of opposing modern positivism.
Such a law school will seek to propagate God’s perspective of law, justice and liberty to its students and around the world as the ways and means are provided to do so. To fulfill this purpose, a lonang-based law school must not capitulate to the modern conventions and methodology of legal education in America. It must offer distinctives in the areas of instruction, advocacy and perspective.
The goal is to fully integrate a lonang perspective into the legal curriculum. This will not be done merely by adding theology courses to the curriculum, by praying or giving personal devotions during class time, or by making chapel services available on campus. Rather, historical treatises consistent with lonang will be used, such as Blackstone’s Commentaries and Kent’s Commentaries, as will the Bible itself, to supplement available textbooks. The use of casebooks will still be employed, but not for the purpose of inculcating the evolutionary presuppositions of the casebook method. Rather, casebooks will be used primarily to compare actual decisions with lonang principles of law and to familiarize students with legal trends in the nation.
A logical and eventual product of a fully integrated curriculum will be the production of new and complete textbooks for each course subject from a lonang perspective. Once published, these texts can be distributed nationwide for the purpose of presenting a law text alternative where none presently exists in the hope of influencing other educators to reconsider their teaching materials. Other materials and resources will flow from the development of these textbooks, such as legal study outlines, a full law review, and treatises on various legal topics. The goal is to create and disseminate information to be used in various forms by other law schools, professors at other law schools, and lawyers who never had formal training in a lonang view of law.
In addition, the lonang-based law school purposes to rediscover the legal roots of America and the unique place American law has had in the history of nations. Among but a handful of nations, such as England and Israel, the United States is a covenant people, a free society governed by the consent of that people in national covenant. The American legal system cannot be fully understood except by a thorough examination of its legal roots in the origin of the English constitution and common law, the colonial charters and compacts, the rights and liberties of Englishmen, the documentary road to Independence, various state constitutions, the Declaration of Independence and the Constitution of the United States, among other historical documents.
These documents follow a pattern consistent with the principles and rules of the laws of nature and of nature’s God, and explicitly acknowledge their permanent and unchanging nature.