To Beginning Law Students. (Opinion)
Brennan, Patrick McKinley, First Things: A Monthly Journal of Religion and Public Life
Regardless of what each of you has come to law school to do, allow me to suggest a complementary or perhaps an alternative aspiration: take these three years to learn how to do law well; even more, learn that the point of doing law well is to do good; still more, learn that doing good through law is about using power to achieve love's ends. "The central problem of the legal enterprise," Judge John Noonan has suggested, "is the relation of love to power." Rather than of love, we could talk today about this or that, just as we can use the power of law for this or that, for good or for evil, for life or for death. Let us, rather, talk and think about what place law has in love and love has in law.
The typical method by which American law schools invite their students to begin (as we say) "thinking like lawyers" is the reading of appellate court opinions. You will read dozens, perhaps hundreds, of appellate decisions during your first year, and one of the questions you will be asked of them is: What is the law? What is the law of this case? Another is: Does the court claim to base its decision, its holding, in discernible legal materials, or was this, in the court's eyes, a case of "first impression" in which there was, in effect, no law at all?
Law, it seems, is not always there when you look for it. Sometimes, even in the judicial opinions of self-styled conservative jurists, law must be made. The result is that you will soon find yourself admitting under professorial cross-examination that the court based its decision not on law (because there was none "on point") but instead on something else. That something is called "policy grounds." The habit of mind of a large segment of the modern legal academy is, I regret to report, to treat the apex of your education in law as the realization that what looks like "law" is instead "law and policy." It is against this tendency that I would like to inoculate you. I doubt I shall succeed, but there is too much at stake to allow the possibility of failure to dissuade me.
What legislatures and courts proffer in the name of the law is so plentiful today that we easily forget that the quantity of law has nothing to do with its quality. However clever a statute or "policy," the mere fact that a law has been enacted is no guarantee that it will make any contribution to our leading good lives. Law almost by definition succeeds in ordering our living, but order is not all there is and may not be for the good. As the late Yale Professor Grant Gilmore put it: "In hell there will be nothing but law and due process will be meticulously observed."
But if law is not just a system of ordering indifferent to what goods we pursue in life, then, as lawyers, we need to determine what is truly good. There is, of course, a long history of disagreement on the issue. So much disagreement, in fact, that in the name of avoiding discord we have been asked, or rather ordered, by much of modern political and legal theory to leave our aspirations for the good at the threshold of law and politics. In its place, we are instructed to let policy, that trusty tool of the objective experts, get the job done uncomplicatedly and uncontroversially.
Yet when a person is denied a seat at the front of the bus based on the color of her skin, when a pregnant woman is deported without consideration to where she is being returned, when an executioner puts an innocent person to death in the name of justice and the people--we know that this is the antithesis of the good, and we know this because with our pre-theoretical intelligence we grasp what is good.
Now you will not hear much about the good in your law school classes, and to some extent this is as it should be. But you will hear a lot about the importance of doing work pro bono publico--that is, "for the public good." This is something the American Bar Association (ABA) tells every American lawyer he should perform, and this law school is committed, as it should be, to encouraging such work as well. …