We Hold These Truths

The mission of a Catholic law school

As the dean of a law school, I spend much time meeting our graduates. They have many stories about the colorful characters who taught them. The most popular story by far is about what one late legendary professor would say to his first-year students at the beginning of each school year. "You want justice?" he would bark, "then go across the street!" and he would point through the window at what was then a seminary.

Of course, there is more than one way to interpret this story. Law school is supposed to strip students of their unexamined assumptions, over-generalizations, lazy prejudices, and foggy sympathies about maddeningly imprecise and philosophically difficult terms like "truth" and "justice." As law professors, we strive to clear minds of "mush," as John Houseman’s Professor Kingsfield put it in the movie The Paper Chase, and I suspect that this is what our legendary professor was trying to do. As a committed Catholic and deeply moral individual, he may also have been challenging students to come back at him with the argument that there is in fact a place for justice in law school, and that he should help them learn to find it.

Unfortunately, none of the graduates who tell the story ever reports that a student contradicted that professor, or that the question of justice ever surfaced again. Instead, they relate the story with a certain pride. It encapsulates for them their first lesson in what it means to be a lawyer: someone tough-minded, unsentimental, skeptical, unconcerned with something as sloppy as justice. Justice is for priests. This was the message reinforced throughout their legal educations, and it became part of their professional ideology. We cleared the mush from their minds, but did we replace it with anything meaningful or sustaining? And that raises another urgent question: Is it possible to be both a good Catholic and a good lawyer?

At one time, of course, Catholic law schools did not have to spend much time worrying about what it means to be "Catholic." With faculties and student bodies overwhelmingly Catholic, with a strong clerical presence, and with a sense of separation from the larger social and academic mainstream that was ambivalent about-if not hostile to-a largely immigrant church, it was difficult not to feel Catholic. But with the waning of immigrant identity (at least for Catholics of European descent), the diminished presence of the clergy, and the successful integration of Catholic institutions into the academic mainstream, that easy sense of identity has notoriously waned. Today we must ask again how a Catholic law school can both educate its students and serve God. In my view, a conception of service to God and the church through open inquiry in an ecumenical community is the best way to educate good lawyers who are also faithful Catholics. In particular, I think such a setting embodies the best of the Catholic tradition of service to God in the world. Let me explain.

As my anecdote about the law professor indicates, there is a widespread perception that the profession of law has detached itself from a commitment to truth and justice. Yet a good Catholic must be committed to truth (including the Truth) and to justice. This assumes that truth and justice in fact exist and are knowable, and that one must live one’s life (including one’s professional life) ethically. If this is the case, a legal profession skeptical about the value of justice is in conflict with an essential part of the Catholic worldview.

The image of the lawyer as a zealous or even blind advocate, committed to furthering the client’s interests regardless of considerations of truth or justice, is pervasive today. Similarly, the client-centeredness of law practice conveys the impression that lawyers must act without fundamental ethical commitments. Lawyers are seen as "service providers," whose tasks are defined by their clients’ needs alone. More pejoratively, lawyers are likened to "hired guns," unconcerned with truth and justice. These are caricatures, of course. Many lawyers reconcile their professional obligations with their deepest moral or even religious commitments through their choice of clients or causes. Nevertheless, there are enough hired guns out there to raise a serious question about the compatibility of lawyerly and religious values.

Underlying the popular images of the blind advocate and the hired gun is something more disquieting, particularly to lawyers themselves. It emerges most starkly when lawyers come to believe that what is most valued in their field is the exercise of legal technique, or, worse, that their billable hours are what really matter. This leads to the demoralizing sense that one is but a highly educated cog in a huge, inhuman pseudo-justice machine, whether it be in the criminal justice system, a regulatory bureaucracy, or in the mill of civil litigation. This sense of alienation frequently flows from the tendency of law and lawyering to become detached from a rigorous concern for values, to insist that lawyering is primarily concerned with advocacy and craft, and that the only truly suitable stance for a lawyer is to operate as though value questions are irrelevant.

I think there is a way to combat this growing sense of alienation and meaninglessness, and many of those involved in contemporary legal education are trying to do that by making values and a commitment to justice an integral part of professional training. Catholic law schools are among the leaders in this movement, attempting to find in their Catholic heritage a key to educating lawyers who can successfully integrate their professional identity with their deepest moral and religious convictions.

To accomplish this, however, Catholic law schools must develop a clearer sense of what it means to be Catholic, and of how being Catholic influences the way we educate lawyers. What "being Catholic" means in any context is controversial, and there are certainly competing conceptions of "Catholicism" in the legal academy. Catholic law schools try to understand how "being Catholic" fits into the American tradition of academic freedom, critical inquiry, intellectual excellence, and democratic diversity. These questions must be answered, furthermore, in institutions where "being Catholic" historically has not been expressly important, and where the legal education offered has been entirely secular. The transition to a more Catholic identity is thus filled with a range of practical difficulties. Unsurprisingly, different answers are emerging in different institutions. I would argue, however, that the best model for a Catholic law school is one based on an inclusive vision.

That vision was crystallized in A Statement on the Nature of the Contemporary Catholic University, the famous 1967 statement known as the Land O’ Lakes Statement. While castigated by some as the source of Catholic higher education’s drift from the church, the statement actually contains the key to reinvigorating Catholic higher education’s mission. It emphasizes that while any university must "serve as the critical reflective intelligence of its society," the Catholic university "has the added obligation of performing this same service for the church." A Catholic university is where the church confronts the world’s different truth claims in creative dialogue. If this is true for the Catholic university, it should be equally true for the Catholic law school.

A Catholic campus should be an arena for unrestricted engagement among believers of all traditions-for their benefit, for that of the church itself, and as a service to God. It should be a place where disagreement is understood to be essential to learning and understanding. To foster creative disagreement not only is consistent with the secular tradition of academic freedom, but serves the Catholic law school’s mission of providing a privileged space in which to explore the meaning of faith in the broadest possible context. In this sense, the Catholic law school is most genuinely Catholic when it is ecumenical, that is, willing to contemplate, as Catholic legal philosopher Michael Perry has put it, "the possibility and indeed...the reality of grace and truth...in non-Catholic religious traditions, non-Christian as well as Christian, and in nonreligious traditions of thought."

Ecumenical inclusion promotes another Catholic mission. A Catholic law school can serve God by instilling in a variety of people, especially those who do not conceive of themselves as "confessional" Catholics, values that reflect the institution’s Catholic and, more broadly, theistic traditions. As a light in a dark and hostile world, the inclusive Catholic school serves a prophetic mission.

How, specifically, does the inclusive Catholic law school serve as such a light? The first essential characteristic is that the school is unapologetic about its Catholic identity. Catholic identity should not be downplayed because some members (or potential members) of the community may find its expression uncomfortable. There should be no reservations, for example, about the use of Catholic symbols, about prayer at school functions, the observance of Christian holidays, or the flourishing of liturgical life. Of course, there should never be a message that nonbelievers are unwelcome, that belief is to be compelled, that indoctrination in the Catholic faith is necessary, or that expressions of different or dissenting views or beliefs are anything other than entirely appropriate. Nevertheless, the Catholic law school should never pretend that it is somehow neutral about Catholic beliefs and values.

This underlies a second important characteristic: the Catholic law school must create a space for religious discourse about the law. While scholars with religious orientations teach in secular institutions, religious discourse is often devalued or regarded with suspicion. Few scholars commit themselves to encouraging, as opposed to tolerating, inquiry into the meanings of religious beliefs and values and how they relate to the law. Such inquiry should be central to the Catholic law school. Consequently, institutional support for faculty whose scholarship and teaching express a religious perspective is crucial. A serious effort should be made to develop courses that reflect Catholic and other religious perspectives.

An intellectual preoccupation with values and ethics is equally essential. Law must be studied in the context of ethics. The tension between law and morality has always been a fundamental concern for a church that has never regarded the demands of the state as absolute, and has always required legal obligation to be viewed through the lens of a Christian conscience. Of course, there is nothing exclusively Catholic about this principle of conscience. Secular ideologies and non-Catholic faith traditions hold similar beliefs. However, the important point is that it would be distinctly un-Catholic not to insist upon the ethical dimension of legal practice and an awareness of the potential conflict between law and Christian morality.

This means that unlike its secular counterparts, a Catholic law school cannot take a "grocery store" approach to values, where a strict value neutrality is maintained and a wide variety of "values" are laid out haphazardly for students to browse. While that approach may reflect a principled doubt that the institution should attempt to embody and transmit particular values, it may simply be the result of the academic tendency to avoid hard choices. Still, value neutrality cannot be the institutional style of a Catholic law school. Rather, an understanding of human dignity and the purpose of human life must provide students with the ability not just to recognize ethical dilemmas, but to resolve them in a principled way.

That commitment to human dignity requires that a Catholic law school devote substantial resources to clinical legal education and pro-bono service for the poor. We have an obligation to instill in our students-Catholic and non-Catholic alike-an awareness of their ethical and spiritual obligation as lawyers to serve the poor. The Catholic law school must commit to such service precisely because it is Catholic. Persuading students that as lawyers they should serve the poor is an essential part of the law school’s ministry.

Finally, the Catholic law school must bring together a critical mass of Catholics. This goal does not conflict with the inclusive character of the institution. Rather, we should invite people from all perspectives to become members of our community and to share our commitment to unfettered inquiry, asking only that non-Catholic members be respectful of our Catholic mission, and that in good faith they seek to find their own ways to contribute to it. Nevertheless, without this "critical mass"-a phrase often used in discussing the implications of Ex corde ecclesiae for faculty hiring-it is hard to see how the institution can remain Catholic.

It is crucial, however, to specify what such a "critical mass" means. It does not mean that a law school should hire only Catholic faculty, or that the majority of faculty, or that even a certain fixed percentage, should be Catholic. It does not require any religious litmus test for faculty hiring, and would not compel strict statements of orthodoxy from Catholics themselves. Nor does it require "affirmative action." There should never be any desire (or need) to compromise standards in order to recruit more Catholics. It does mean that there should be an attempt to recruit outstanding Catholic scholars, particularly in those subjects where the expression of a Catholic perspective is most relevant. In other words, "hiring towards mission" is not just legitimate, it is indispensable.

The values that should animate a Catholic law school are clear; they derive from a Christ-centered ethos. They include a profound respect for the dignity of the individual, the core principle of incarnational humanism, which creates a moral imperative to focus on the consequences of legal decisions for individuals and implicitly rejects any view of the law in which human beings can be treated instrumentally. These values also include a commitment to communion with the "other," because the Catholic faith requires us to see the face of Christ in all people. A commitment to communion demands a principled consideration of the legal issues that spring from poverty, inequality, and discrimination. Similarly, a set of values centered on the spiritual welfare of the human soul requires a law school to communicate to its students, regardless of their faith, the falseness and soul-destroying traits of much of what currently drives the law world: lust for material wealth, pursuit of personal ambition at the expense of others, perfection of craft with indifference to the consequences, and a cynical belief in the irrelevance of justice or the importance of truth. Justice, in other words, should not be relegated to the seminary across the street.

Ideally, one of the most important fruits of a Catholic legal education will be a critical understanding of the false idols that currently afflict the legal profession. Those idols should be replaced by devotion to justice and to the truth; without it, achieving true justice will be impossible. For Catholics, such devotion flows from a faith-based conception of human dignity. Too often, as a student is immersed in law craft, a vision of that human dignity gets lost. It is our duty to find ways to reawaken the hunger and thirst for justice. [end]

Published in the 2003-04-25 issue: 
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