08/28/2014 02:35 pm ET Updated Dec 06, 2017

Does Law Hold Life to Be an Incommensurate Value?

When not in government service, I have been turning out new lawyers for close to four decades.


More than a few people have asked me to explain myself.

In all seriousness, as I have been thinking about what to say to a new class of first year law students, I have been watching ISIS march across Iraq killing infidels (including the brutal beheading of an American journalist) who have no reason to believe they are any less worthy of eternity than their aggressors, Israel and Hamas lob missiles at each other both asserting unqualified justification, the people of Ferguson, Missouri engage in racially-driven violence against themselves, and Robin Williams take his own life.

Without indulging an overly important role for lawyers or instruction in the law to the culture at large, I think it undeniable that as one Arab state after another has not blossomed out of the "Arab Spring" that the significance, indeed blessing, of living within a rule of law has been more greatly appreciated. Our highest law, the Constitution, was said by Madison to be a sublime reflection of human nature. Yet, if that be so how is it that the United States and other western democracies have been so unsuccessful at planting the seed of human freedom and human potential in foreign lands? Some Islamic scholars posit that the values of justice, prudence, temperance, and courage which we view in formal instruction as hinge or cardinal virtues advancing human nature are given less honor by us in practice than we proclaim. Indeed, western religious and philosophical belief is assailed as hypocritical, actually honoring the material over human right.

Unfortunately, to my mind, there is some truth to this indictment. Over the past 40 years of teaching at law schools across the nation, including a stint as Dean at Catholic University in Washington, D.C., as well as an extended period of service as Director of the Center on Law and Government at the University of Notre Dame, two institutions of prominence in matters of legal philosophy and the defense of human rights, I have watched with dismay as the material has pushed aside the spiritual. Law and the way most faculties evaluate human behavior, if not life itself, has been reduced to cost-benefit analysis.

Reducing life to its material value is an ill-conceived idea; indeed, it is often quite jarring to students whose parents and faith leaders had guided their formation in reference to the pursuit of virtue; to the ready forgiveness of those who have hurt or slighted them. While few of us are really able to apply the admonition to love our enemies, we drifted in our communities from even awareness and love of neighbor.

I suspect there are a few titans of industry reading this and scoffing at my naiveté. I can hear the refrain: we live in a tough world, Ambassador; your friend Chris Stevens died at the hands of individuals who accord little or no honor to human life -- obviously not that of Ambassador Stevens or even their own given the prevalence of suicidal forms of terrorism. Get real, my friend, its money, power, influence that runs this world, and the message of love of neighbor is simply for another world.

Law school enrollments have been flagging for the last several years, including at institutions of longstanding and fine reputation. Virtually all of these law schools have a business orientation and appeal to those who see the law as the main avenue to affluence and power. Yet, in these dour economic times, there has been a quiet counter-trend away from the materialist. Of course, Law schools with enormous endowments will always power the rankings, but when one pulls back the US News cover, one finds a differently directed, more intense, indeed, innate, yearning among aspiring law students for something that cannot be the result of a marketing campaign. Indeed, this is why places that do not hide the relationship between law and religion have become especially sought after.

What institutions dominate this category?

Pepperdine University (CA), where I am presently on faculty, has thrived (a 21 perent increase in applications when nationwide, applications are down 50 percent) with its well-articulated nondenominational Christian message of "service, purpose and leadership"; so too, the University of Notre Dame (IN) and Fordham (NY) with curricula anchored in natural law jurisprudence and a sensitive understanding of how the secular and the sectarian can coexist in the 21st century are doing very well as are BYU (UT) building on the commitment of mission and family in Mormon practice and Yeshiva (NY) where Judaic concepts enliven and enrich secular subjects.

Students pursuing law often do so with altruistic motive and faculty have a fiduciary duty not to subvert the power of this altruism entering the profession. Yes, schools must be about the business of instructing students how "to think like a lawyer." It is very important for those entering the profession to write and speak well and that's only possible if one is working diligently to enhance critical thinking, analogical thinking, especially. Yet it's one thing to learn how to take a complex problem and peel off the skin of the onion and to not be overwhelmed by its complexity in finding solution; it is quite another to abandon one's virtues instilled by parents and pastors and rabbis and imams.

When I was a first-year student back in the early '70s, the fad of the day was economic analysis. Economics has always been described as a dismal science; it loses none of those qualities when its explanatory power is overstated in legal policy. It is sheer hubris that human life can be quantified, and where necessary, expended for the bottom line, and yet if we persist in training generations of lawyers in this fashion, it should not surprise when we have a generation of corporate CEOs receiving this questionable advice, yielding embarrassing and questionable decision-making.

The examples are abundant: corporate pressures to overlook the side-effects of a drug in pushing it out to market; cigarettes made to be deliberately addictive in the face of their undeniably cancerous nature; ground water contamination revealed by the sleuthing of Erin Brockevich. GM says it's sorry for undervaluing over a dozen lives sacrificed to an ignition capable of turning off unpredictably. Yet, GM continues the practice -- notifying owners of possibly defective vehicles, including me -- that it lacks parts for a fix. Of course, present manufacturing of new product goes on.

Enough already. Leaders in and out of government need to reassert that some qualities must be beyond economic measure. Thinking otherwise invites all manner of bad consequences: the devaluing of women, slavery, the Holocaust of Jews and the unborn, assaults upon gay people, the wholesale murder of non-Islamic "infidels" to ISIS, and yes, the distancing and under-valuation of the ill, the aged, and the handicapped. Could it be that this insidious idea may have even influenced a man as capable and talented and loved as Robin Williams?

Williams was a true and gifted humorist astute in the observation of human nature who could bring out laughter from that which would otherwise make us cry. I experienced the spontaneous joy of life in Robin Williams at the improv in the 1970s; a joy that could deploy humor (Good Morning Vietnam) to remind a nation at war abroad and with itself at home that Asian life is fully human life; humor revealing the gift of a mind turned on by new concepts, not the academic pecking order, (Good Will Hunting) in which Williams was as trenchantly dismissive of the haughtiness of academic prize as he was of faux blue-collar-ism that denies human potential.

Robin Williams's humor freed me from my own initial disillusionment with the law.
When I was especially dispirited by classrooms dominated by faculty busy deregulating trucking, airlines, banking with little accounting for those at the margins of society who, because of lack of money, were also implicitly denied a voice.

I wish Williams would've permitted me to return the favor. Like him, and millions of others, I am also living under the sentence of a Parkinson's diagnosis; my students are forgiving, but as a humorist who depends on quick wit, physical agility, and lightning fast repartee, Williams would surely find each attacked by the disease.

With Parkinson's, one dies on the inside in ways that are painful, frightening and challenging all at once. When the mind cannot get the voice to speak or when the simple task of buttoning a shirt eludes us, there is very little that will conceal the impact of such cumulative and advancing disability.

Those diagnosed with Parkinson's need as much empathetic wisdom as scientific knowledge. When life is just the cost to be measured, it is vulnerable, not inalienable, as described in the Declaration of Independence -- a fact overlooked by libertarians and tea-partiers. Thinking only of themselves or as disconnected from community with few natural obligations to others invites the loss of far too many remarkable -- albeit imperfect -- lives. Rand Paul and Ted Cruz may think it sport to defund or obstruct the health needs of others, and in this I'm not being partisan since I would put the same question to the incumbent president about drone usage in ways that seem unauthorized by the powers of the executive and deliberately provocative of like attack upon our own homeland at some point in the future.

In light of all this, what is the best advice for new law students? To be inquisitive and to ask with the same brash honesty of Robin Williams' humor when the material displaces all else:

"And how well is that working?"

No student, indeed no lawyer in practice should hesitate to ask the toughest questions - especially those that challenge practices that stand in denial of the incommensurate value of human life. For contrary to those who still pretend to find joy in things alone, law practice is decidely not about things. It is, as Solicitor General John W. Davis explained, "True, [that] we [lawyers] build no bridges. We raise no towers. We construct no engines. We paint no pictures--unless as amateurs for our own principal amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's burdens and by our efforts we make possible the peaceful life of men in a peaceful state."

How many in Libya or Iraq or Gaza would know the importance of anchoring law squarely upon the human person, and human right? How many Americans still grasp the importance of law to making possible the peaceful life of men in a peaceful state"?