Do Lawyers Know Anything?
posted by Nate Oman
I recently completed a short essay that will be included in collection of papers by a group of political philosophers. My topic was the relationship between religious thought and markets. I had originally thought that I would try to write a philosophical piece myself, starting with theological and economic first principles and then relating them to one another. As I thought some more about it, however, I decided this was not such a good idea. Although I like to play at philosopher (or historian or economist…) from time to time, at the end of the day I am just a lawyer. I am slowly coming to realize that there is no intellectual shame in this.
So rather than starting with first principles, I started with two concrete disputes over property and contract and used the arguments and resolution of those cases as a way of building upward toward more generalized claims. I wrote:
Often, discussions of capitalism proceed at a very high level of generality, speaking of entire social systems. Looking at the issue through the lens of the law, however, allows us to approach it from the opposite direction, denaturing the question of capitalism into the concrete legal institutions that make markets possible. Most people including those who think deeply about economics have a tendency to assume that property and contract are static, simple institutions . . . . The reality, of course, is that what we mean by property and contract changes from place to place and epoch to epoch.
Hardly the most startling insight in the world, but it does raise the question of what it is that one knows when one knows the law. As a young man, Oliver Wendell Holmes, Jr. fell for Emerson and the transcendentalists in college and considered himself a philosopher. The Civil War beat the transcendentalism out of him and returning from the battlefields of Virginia he enrolled in law school. I don’t think that he ever gave up his ambition to be a philosopher, however, and a few years after graduating from law school he sent a copy of one of his first law review articles to a very aged Emerson with a letter. The letter said something to the effect that if one went far enough into the law one found one’s self doing philosophy.
Last December the First Things blog had a rambling post about whether or not lawyers are intellectuals. Although the post ultimately petered off into a random discussion of the Volokh Conspiracy, literary theory, and science fiction it raised an interesting question. After noting that engineers and journalist, while smart (at least the engineers), are not intellectuals, the post said:
Still, I’ve always imagined that the law so closely parallels intellectuals’ activity — the work of philosophers, theologians, and literary critics — that there is an intellectual tendency that exists in the legal mind by its very nature.
There is something to this, I think, but it misses the point. Philosophers and theologians (who knows what literary critics do) start with generalities and theories and only gradually — if at all — descend to the particular and the concrete. Lawyers — at least common lawyers — start with cases, the particular and the concrete and only gradually ascend the ladder of abstraction to rules, doctrine, and — perhaps — theory. As Holmes noted, one may end up in roughly the same place as the philosophers but the road travelled to that place will be different. The question is whether or not the particular route taken matters, and if so how.
In the mean time, I take solace in the fact that law profs are paid better than philosophers. The absence of intellectual respectability has its compensations.