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Evan Whitton
28 June, 2005  
Morality - missing in action

Evan Whitton is offering a cash prize for the first judge to chant a formula that might relieve some of the hypocrisy demanded by the legal system. He expects to be knocked down in the rush


The Sydney Morning Herald of March 14, 2005 said NSW legal trade schools, heaven help us, annually unleash 5,000 young herpetoids on starving lawyers and a defenceless public. Here’s a question strangely omitted from their examination papers:

“Lack of moral fibre is the pustule which most disfigures the majestic countenance of British justice.” Discuss.

imageSharpish students could write a book on that, but have been beaten to it by Professor Thane Rosenbaum (pictured), a former corporate lawyer and novelist who teaches law at Fordham, the Jesuit university in New York. His The Myth of Moral Justice: Why Our Legal System Fails to Do Whats Right (HarperCollins) came out last year.

Before increasing Professor Rosenbaum’s royalties by the equivalent of a short black or a flat white, I asked him if his book says what the Hon Russell Fox QC says: justice is fairness, fairness is truth, and the search for truth gives a justice system its necessary moral dimension.

“It follows,” I concluded, “that the adversary system is not a moral system because it does not search for the truth.” Rosenbaum replied:

“I don’t know Judge Fox or his opinions or other writings, but if that is what he is saying, than he is in complete alignment with the premises of The Myth of Moral Justice. Take good care.”

Having decently paid up, I learn that Professor Rosenbaum says in his book:

“Morality does not appear in a law school syllabus … Fact is a legal term; truth is a moral one. The legal systems notion of justice is served by merely finding legal facts without also incorporating the moral dimensions of emotional and literal truth … The public however, finds this situation intolerable, and it contributes to a kind of moral revulsion toward the legal system for its complacency about discovering truth.”

Fortunately, common lawyers, including academics and judges, can blithely ignore being morally reviled; the public amount to no more than a minuscule 99.8 percent of the population.

imageLaw professor James Elkins, of the University of West Virginia, blames a couple of Harvard types, Christopher Columbus Langdell and Oliver Wendell Holmes Jnr (seen here), for making legal immorality respectable.

Harvard is a seat of learning founded in 1737 by descendants of English Puritans as deranged as Mr George Walker Bush; they believed an inscrutable deity was the supreme civil ruler. Today, Harvards legal trade school, founded 1817, stands foursquare for artifice, chicanery and greed.

Langdell, dean of school 1875-95, invented the case – or Socratic – method of teaching law. Professor Rosenbaum says the method teaches students that thinking like a lawyer means you can argue either side, regardless of truth or morality.

Holmes (1841-1935) became a Humpty on the Supreme Court at 61, and stuck like a limpet until he was 90, not quite as long as the dread William Hubbs Rehnquist. He wrote in The Path of the Law (1897):

“For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether.”

There is a gain, but it is mainly to morally unaccountable trial lawyers’ bank balances.

The adversary system daily obliges lawyers and judges to say things they know are not true. Professor Rosenbaum suggests a formula that will at least relieve judges of the hypocrisy demanded by the system. He said there is nothing to stop them saying something like:

“I am required by law to do what I must do today, even though I realize that it will strike some, including me, as immoral … Neither can I pretend that the result is just, because I know it is not. Nonetheless, I am bound to apply the law in this way, which will paradoxically produce both the correct legal result and the wrong moral outcome.”

As a tiny step in the direction of a moral system, your correspondent is offering a small cash prize for the first judge to utter the formula. I expect to be knocked down in the rush.