Tuesday, June 6, 2017
Of course Rob is right just below to put serious questions to the view that we are resolutely not to judge when it comes to professional and other cultural values, and not to "impose" "our" values on law students as we acculturate them into the legal profession.
He is right because law is all about values and their imposition on others. Law may not be command pure and simple, but much of it is command. And even the part that is not command presupposes and incorporates moral views and dispositions at every level, to include evaluations of the proper scope of moral disagreement within the profession and the culture at large. If you are not interested in good (i.e., moral) governance, law is not for you. There is no line between the values that a law instantiates that are "moral" and those that are not. They are all moral.
The trouble is that anti-legal moralism dies very hard, dating all the way in our own tradition from the fight between Stephen and Mill and right on through to the present, a fight that the legal moralists have been widely proclaimed to have lost. Many students, in particular, have been raised on a soft and not well thought-through moral libertarianism that forces and reinforces all kinds of morality onto and into students--but does so sub silentio with the pretense of not being a morality at all. That ostensible moral libertarianism in law--itself a legal moralism--infuses much of the law, including, very much, the doctrines of the First Amendment (but many others too), and much of the instruction in law school. It's time we stopped talking about moral neutrality--in law and in law school--and started talking about the way the law, and the way that law schools, do, and should (two different sets of discussion), privilege certain moral positions and downgrade others.
But that will require a good deal more than forcing clinic and other offerings--most of which do, in fact, reflect very specific ideological commitments and which are, as John McGinnis has put it, "enterprises of political action"--down the throats of students pro bono publico. It will require, first, turning a highly critical eye on the existing frameworks, and, second, forging a shared sense of pro bono publico from the fragments one can see adumbrated in the disagreement between Rob and his interlocutor.