Reprinted by permission of the publisher from The Lost Lawyer by Anthony T. Kronman, Cambridge, Mass.: Harvard University Press, Copyright © 1993 by the President and Fellows of Harvard College.
All rights reserved.
This book is about a crisis in the American legal profession. Its message is that the profession now stands in danger of losing its soul.
In material terms, of course, American lawyers hardly seem to be in any danger at all, let alone the serious sort that would justify an apocalyptic claim of this kind. By most outward measures they appear, in fact, to be thriving. There are now nearly a million lawyers in America. As a group, they are very well paid. And they continue to dominate our public life, at all levels of government, exactly as before. The economic downturn of the 1990s has inevitably affected lawyers along with everyone else. But the legal profession remains one of the most prosperous and powerful groups in American society; Tocqueville said, "It is at the bar or the bench that the American aristocracy is found," and judging by the wealth and influence of lawyers in contemporary America, one might conclude that his famous .dictum is as true today as when he uttered it a hundred and fifty years ago.1
To be sure, there are critics who claim the legal profession has more influence than it should. Dan Quayle and Derek Bok have recently made statements to this effect.2 And there have always been those who questioned the honesty and trustworthiness of lawyers (an issue that since Watergate has been very conspicuously in the public eye). Every year produces a fresh crop of scoundrels and renewed doubts about the ability of the profession to police itself, along with familiar complaints about the undue power of lawyers (which any democratic society is bound to regard with suspicion). These criticisms are perennial. They reflect recurrent anxieties and concerns, some of which are surely justified. But none touch the crisis that now threatens the collective soul of American lawyers.
People choose a career in the law for many reasons. Some do so for money and others for power and prestige, and a few, at least, become lawyers in order to advance their political ideals. But these are all external reasons for choosing a life in the law. They all portray the practice of law as a means to an end that lies beyond it. There is nothing wrong with any of these reasons. They are all respectable, and the last is genuinely admirable. But whatever external goals they aim to achieve through the practice of law, most lawyers also hope that their work will be a source of satisfaction in itself. Indeed, many hope that the intrinsic satisfactions it affords will be important enough to play a significant role in their fulfillment as human beings. Not everyone who becomes a lawyer looks for this kind of fulfillment in his or her work. But many do, and the professional pride of lawyers as a group has always depended on the belief that what they do has the potential to be rewarding in this way.
It is just that belief, however, which is now faltering and whose enfeeblement has caused the crisis in which the American legal profession is now caught. This crisis is, in essence, a crisis of morale. It is the product of growing doubts about the capacity of a lawyer’s life to offer fulfillment to the person who takes it up. Disguised by the material well-being of lawyers, it is a spiritual crisis that strikes at the heart of their professional pride.
This crisis has been brought about by the demise of an older set of values that until quite recently played a vital role in defining the aspirations of American lawyers. At the very center of these values was the belief that the outstanding lawyer—the one who serves as a model for the rest—is not simply an accomplished technician but a person of prudence or practical wisdom as well. It is of course rewarding to become technically proficient in the law. But earlier generations of American lawyers conceived their highest goal to be the attainment of a wisdom that lies beyond technique—a wisdom about human beings and their tangled affairs that anyone who wishes to provide real deliberative counsel must possess. They understood this wisdom to be a trait of character that one acquires only by becoming a person of good judgment, and not just an expert in the law. To those who shared this view it seemed obvious that a lawyer’s life could be deeply fulfilling. For the character-virtue of practical wisdom is a
central human excellence that has an intrinsic value of its own. So long as the cultivation and exercise of this virtue remained an important professional ideal, lawyers could therefore be confident that their work had intrinsic value too. But in the last generation this ideal has collapsed, and with it the professional self-confidence it once sustained.
I have given this ideal an old-fashioned name to stress its roots in the past and the air of obsolescence that now surrounds it. I call it the ideal of the lawyer-statesman. It is an ideal that has had distinguished representatives in every age of American law. Lincoln, for example, was one. In the years before the Civil War, as he struggled to find a way to save the Union and democracy too, Lincoln had no formula to guide him. He possessed no technical knowledge that could tell him where the solution to America’s dilemma lay. He had only his wisdom to rely on—his prudent sense of where the balance between principle and expediency must be struck.3 A century later Earl Warren needed the same wisdom as he lobbied patiently to produce a unanimous opinion in Brown v. Board of Education.4 When in the midst of the Second World War Robert Jackson reasserted the value of toleration in a case that made its conflict with the most potent forms of patriotism obvious to all, he needed Lincoln’s prudence too.5 And just yesterday we saw this virtue again in the plurality opinion in the Court’s most recent abortion decision: an opinion marked by its judicious search for a middle course and wise balancing of principle and precedent.6 In all these cases it was judgment, not expertise, that counted, and it is this quality of judgment that the ideal of the lawyer-statesman values most.
This ideal is now dying in the American legal profession. As it does, lawyers will find it harder to believe their work provides intrinsic fulfillment of any kind. Of course, the external benefits of law practice remain as obvious as before. But by themselves these are not enough to sustain the pride that lawyers have always taken in their craft; nor are the anemic new ideals that have arisen to replace the failing ideal of the lawyer-statesman. The result is a growing sense, among lawyers generally, that their yearning to be engaged in some lifelong endeavor that has value in its own right can no longer be satisfied in their professional work.
This is a catastrophe for lawyers. Beyond that, it is a disaster for the country as well. A disproportionate number of America’s political leaders have always come from the legal profession. If lawyers are especially well equipped to play a leading role in politics, however, it is not because of their technical legal expertise. It is because their training and experience promote the deliberative virtues of the lawyer-statesman ideal. As this ideal fades and these virtues come to seem less important within the profession, they will be less consciously cultivated by lawyers themselves. And as that happens, the ability of lawyers to provide sound political leadership must eventually deteriorate too. In the future, the legal relief after the more abstract discussion that precedes it. Those who are most interested in the changing character of legal education may wish to start with Chapter 4 and then work backward to the book’s beginning. Readers who are especially interested in the nature of law practice may want to follow a similar strategy, starting with Chapter 5. Those who are philosophically inclined will find it easiest to read the chapters in the order they appear, though Part Two is likely to be as challenging for them as Part One is for others. But wherever he starts, and whichever aspect of my argument he finds most congenial, any student of the legal profession who wants to understand its current crisis must combine the philosophical and sociological perspectives of the book’s two parts. Moving in one direction, he must ask what practical wisdom is, and moving in the other, how the ideal that honors this virtue has come to lose its authority in every branch of professional life. Only when these two approaches are joined, in a venture of philosophical sociology, do the scope and meaning of the crisis that has overtaken the American legal profession come fully into view and the question of its fate force itself upon us with the urgency it merits.
Regarding its fate, I have reached a gloomy conclusion. I do not think the ideal of the lawyer-statesman can be revived, at least at an institutional level. Nor do I think there are any plausible successors to it—new ideals that can provide an equally secure foundation for the lawyer’s professional pride. Individuals, perhaps, may find a way to honor this ideal in their own careers. But increasingly, I fear, they will be able to do so only by openly rejecting the announced values of their profession and by searching out the cracks and crevices in which a person devoted to the ideal of the lawyer-statesman may still make a living in the law. To these lawyers I hope my book will give encouragement and support. The continued existence of the lawyers-statesman ideal—even marginally, interstitially, contrapuntally—depends on them. They must nourish this ideal and keep it alive. For in the end, as Oakeshott observed, "nothing survives in this world which is not cared for by human beings."
1 Alexis de Tocqueville, Democracy in America, ed. J. P. Mayer, trans. George Lawrence (New York: Anchor Press, 1966), p. 268.
2 Dan Quayle, speech to the American Bar Association, reported in New York Times, 14 Aug. 1991, p. A1; Derek Bok, "Law and Its Discontents," The Record, 38 (1983): 12-33 (a publication of the Association of the Bar of the City of New York).
3 Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962), pp. 65-69; Harry V. Jaffa, Crisis of the House Divided (Chicago: University of Chicago Press, 1982), pp. 363-386.
4 Richard Kluger, Simple Justice (New York: Knopf, 1976), pp. 678-699.
5 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).
6 Planned Parenthood of Southeastern Pennsylvania v. Casey, 60 U.S.L.W. 4795 (1992).
Anthony T. Kronman was Dean of Yale Law School at the time that this book was published.