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Legal Commentary

: LawPundit

"The Law is a Class" -- Law Schools Are the Most Powerful Part of American Universities -- And That is A Good Thing

By Andis Kaulins

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John O. McGinnis at the Wall Street Journal has a book review of Walter Olson's "Schools of Misrule" titled

"The Law Is a Class" writing inter alia:

"Our litigation-prone culture and complex legal structure?not least the matrix of overlapping state and federal powers?regularly translate questions of policy into questions of law. As a result, American law schools wield more social influence than any other part of the American university."

We would comment that it is in the nature of the history of mankind in general that lawmakers and judges have always exercised inordinate amounts of power in society, so that the modern era is no exception in this regard.

It was de Tocqueville who wrote...

in DEMOCRACY IN AMERICA about the special status of lawyers:

"Not less important, as a counterpoise to the danger of democracy, is the strong legal spirit which pervades the United States. Lawyers have great influence and authority in matters of government. But lawyers are strongly imbued with the tasks and habits of mind which are most characteristic of aristocracy; they have an instinctive liking for forms and for order, a native distaste for the will of the multitude, and a secret contempt for popular government. Of course, their own personal interest may and often does over-ride this professional bias. But lawyers will always be, on the whole, friends of order and of precedent, and enemies of change. And in America, where there are neither nobles nor able political writers, and where the people are suspicious of the wealthy, the lawyers do, in fact, form the most powerful order in politics, and the most intellectual class of society. They therefore stand to lose by any innovation, and their conservative tendency is reinforced by their interests as a class."

Whether all of that is true can be debated -- see Phil C. Neal, De Tocqueville and the Role of the Lawyer in Society, who writes, inter alia:

"Whatever its relevance to our own day, De Tocqueville's picture of the legal profession in America can hardly enable us to see its functions fully and accurately, still less to appraise its contribution to the fabric of society. For his was a narrow and partial view. To say this is not to criticize De Tocqueville nor to deny the panoramic perspective that he achieved in his work as a whole. His interest in lawyers was incidental to a larger theme. We must remember what that theme was."

The legal regulation of temporal life encompasses domains of decision which are inexorable and which of course also elevate the powers of the law schools.

Moreover, the best youngest minds in society often study law rather than other professions, which also increases the power of the legal "class".

Lastly, the study of law by virtue of the Socratic method especially adds another important element to the power equation, i.e. the ability to engage in "critical thinking", an ability of mind, for example, often sorely lacking in the humanities and related professions, where short-term stop-gap measures, peer group authority and pat recipes or prescription-like "solutions" often rule, rather than wisdom-driven long-term policies with strong and sustainable foundations and rationales.

We understand Walter Olson's critique, but it is unlikely to induce any significant change in the way that society does its most important business.

The lawyers will continue to rule, and law schools will continue to be powerful parts of the universities, and that is a good thing.

The other professions, especially the self-serving religious dogmatists, the gullible disciplines of the humanities, as also politically overpartisan partisans, blinded by their own greed and their own selfish paradigms, offer only uncritical alleged solutions to the problems of civilization and its discontents, and have no viable or sustainable solutions to the problems of mankind.

Full post as published by LawPundit on March 21, 2011 (boomark / email).