More Art Than Science

RECENTLY I had the pleasure of interviewing a number of law students at both the Harvard and Yale law schools for the position of law clerk to a State Supreme Court. The interviews made it apparent that over the past several years there has been a trend toward subordinating the study of life through books to the study of life through projects, the practical work. As I rejected a number of job applicants on the basis of an inadequate undergraduate education, I thought that it might be helpful to undergraduates preparing for a career in law to share with them some of the insights I have had into the proper education of a lawyer.

When a person in government hires a lawyer to assist him, he is usually more concerned with the lawyer's undergraduate education than he is with his class standing in law school, because a policy maker relies upon him to help make social policy. The basis of policy comes from fields other than law; law is merely a mechanism for implementing a particular policy once it has been formulated.

In today's quest for relevance undergraduate students who plan to enter law are so impatient to make a contribution that they are missing their greatest, if not their only, opportunity to acquire the tools necessary to serve effectively in either a governmental or private executive capacity. In proportion to the number of inhabitants of this country, important policy decisions are made by very few people. There is little spreading of responsibility, and while many people comment on policy, teach proper policy, or criticize policy, the policy itself is made by a limited group, who are over-worked.

It may appear incredible to an undergraduate that issues of substantial importance are decided in a matter of minutes, but that is indeed the case. Time does not permit the type of investigation which a decision maker should ideally undertake. Therefore, one must take to the decision making function as much general knowledge as possible. If the traditional liberal arts education has a practical function, it is to refine one's "gut reactions." No rule ever determines its own application, and the areas for human discretion are far broader than I would like to have them.

For this reason, I feel a strong regret that so few law students are conversant with literature, classics, and philosophy. In proper perspective, and mixed with a knowledge of the vocabularies and basic principles of the social and natural sciences, nothing can be more practical to the practicing lawyer than history, literature, and philosophy because policy decisions and lawyer-client decisions are far more often made through deductive rather than inductive logic.

It requires some candor to admit that policy decisions are usually not made through application of the scientific method, in which facts are gathered, and integrating theory is developed, the theory is tested, and finally the policy which that theory dictates is put into practice. Regretfully, a policy maker seldom has sufficient facts at his disposal to use the scientific method fruitfully. Facts are expensive to gather; policy makers lack sufficient time to digest all the facts, even if they are gathered; and, the accuracy of supposed facts is always subject to question. Most importantly, the press of time is always present.

Consequently, there is often more art than science to important policy decisions, and the twentieth century policy maker still looks more like Aristotle than he does like Newton. The policy maker has come personal theory of how people behave in general, and from that he deduces how people will behave under certain particular circumstances.

Government policy making is not the only area of the legal profession which requires the type of broad experience with human problems which can only be learned from books. If a lawyer seeks to advise people, he must have some insight into how all parties concerned in any given transaction will operate under differing human, rather than legal conditions.

A lawyer who practices estate law needs to know the latest tax decisions, but he will only serve his client adequately if he also knows about King Lear. When a lawyer advises a client to give part of his property to his children, the lawyer needs to temper his knowledge of the tax advantages of such a transfer with knowledge of how children behave towards parents from whom they have nothing more to expect materially. I suspect that a reading of Dickens' Bleak House will teach a lawyer more about the pitfalls of complicated trusts than an advanced seminar on the subject, because Bleak House deals with the inter-action of people with the law, rather than a sterile analysis of the law itself.

While talking to law students in the interviews I discovered that the quest for relevance has led to a rejection of literary material written before 1900. The quality of literature written in earlier times is certainly not inherently better than material being turned out today; however, earlier literature is a known quantity, while more recent material has yet to be evaluated. Fully 95 per cent of all human problems which confront the practicing lawyer are not unique to the twentieth century. The great beauty of English literature between 1550 and 1900, and the Greek and Latin classics, is its limited quantity.

This limited quantity of critically acclaimed literature provides a common language for communication in a well educated community. If there is a body of basic literature which everyone has read, then communication is facilitated by inclusion by reference of highly complex ideas. One is capable, for example, of explaining a highly complicated interpersonal relationship by the simple statement: "It is like the relationship between Swann and Odette."

In a community in which most people have read Swann's Way, the statement is concise. If the analogy between the real and fictional situations is accurate, the statement quickly explains a complex relationship far more accurately than detailed discussion.

As I interviewed a succession of concerned and dedicated law students, who had done everything but read nothing, I was horrified by their similarity to their arch-enemies, the technocrats.

Both the concerned student and the army colonel have in common an abhorrence of abstract thought and extraneous knowledge. Both are concerned with relevance. Yet all decisions require two inputs, the first is knowledge and the second is judgment. Judgment is the quality which is to be gained from literature, philosophy, and history. Extensive exposure through books to man's collective experience should give a lawyer's decisions the quality of vision.

In this country's history, the men who have been most noted for their vision, have also been the men most conversant with history and literature. The people around Kennedy and Roosevelt were remarkable because of their renaissance aspirations; the people around Nixon are remarkable because of their lack of such aspirations.

The greatest modern lawyers and jurists, from Clarence Darrow to Oliver Wendell Holmes and Earl Warren, have been men noted for their humane reactions and good common sense, rather than their technical legal craftsmanship.

I think that a condition precedent to lawyers' maintaining their traditional position of leadership is a continuing interest in the liberal arts. A truly liberal education requires that men pass a considerable time as undergraduates learning a common language by which they can communicate with each other. If successful, the liberal education will develop a lawyer's view of life, his tolerance for other people and other life styles, and his sense of where this world should be going. To know wither we are going, it is essential to know where we have been.

Richard Neely is a Virginia Supreme Court of Appeals Judge.