It is curious thing that, even as undergraduate liberal arts programs continue to take a beating, law schools designed to train professionals now offer more humanistic (sometimes called perspective) courses than ever. What may be even more curious is that the presence of these courses in the curriculum is justified on instrumental grounds. Courses in jurisprudence, legal history, and comparative law (as well as others taking their cue from the social sciences) provide, it is argued, a context for the understanding (and later exercise) of practical wisdom.  The Hessian effect — the sense that the law teacher is there simply to train practically-minded mercenaries, see Thomas Bergin, The Law Teacher: A Man Divided Against Himself, 54 Va. L. Rev. 637 (1968) — remains present in legal education, but the definition of the training of lawyers has broadened to encompass such courses as integral to one’s legal education.

Part of this transformation results from the greater employment of legal academics who hold joint degrees in law and other disciplines, many of whom had little experience in practice. Part was a reaction against dogged resistance to “big ideas” about law in mid-twentieth century legal education, and part, I think, is due to a hunger in students for something more from their education than technocratic training. 

I recall sitting in Property and suddenly realizing, all I’m learning is how to protect someone’s money from somebody else. On entering law school, I had thought (naively) I would learn how lawyers protect individual rights from government oppression, and I was now trapped in the prosaic world of material goods. I now have a much healthier attitude toward the value of lawyers who protect the material goods of their clients (I have more to lose now than I did then), as well as a greater appreciation in the value of the prosaic in making a life. But what I missed in law school was why we lawyers did what we did, and how it had meaning. I wanted to learn how the legal system had come to be as it was, how law shifted over time (ideas about legal formalism and legal realism were not discussed in the classes I took), what happened to natural law/natural rights ideas, how the common law system differed from other legal systems, and what legal ethics really meant.

No course on legal history (American or English) then existed at Marquette. I vaguely recall a modest course titled something like Theories of Law (I still have the books from that course), and an adjunct who moved from England to Milwaukee taught a Comparative Law course. I also took Theology of the Law, taught by a Jesuit from the School of Philosophy (at least, I don’t think he was from Theology), all of which helped, but not as much as I’d have liked. What the wonderful state of Wisconsin did in providing for the diploma privilege was free me from the view that I needed to take “bar” courses during my third year of law school. A year later we moved to Washington, D.C., and I had to learn family law and a host of other subjects I’d avoided in law school, and the good news was that it was too late to worry about not having taken courses in particular subjects.

I somewhat sated my desire for theory by taking a number of such courses when studying for my LL.M. I began teaching with the hope of adding either Jurisprudence or American Legal History to my teaching load. My timing was fortuitous, for the ABA had just inspected the law school and told it to expand its curriculum. The faculty agreed to add a “perspective” requirement that required a student take a course in American or English Legal History, Jurisprudence or Law and Philosophy, or Comparative Law. The result is that I’ve taught American Legal History for twenty years (and occasionally Jurisprudence). I’ve been fortunate to teach this course to about 1,500 students, and I know I’ve learned an extraordinary amount (and continue to do so) during this time.

I divide the course into three components: first, a chronological history of law in America (about half the course); second, a survey of some doctrine (property, torts, contracts, criminal law, and evidence) and the legal profession (including the history of legal education); and third, a history of American legal thought, from Grand Theory to Legal Formalism to Sociological Jurisprudence to Legal Realism to Post-Realist Thought (Reasoned Elaboration, Law and Economics, Critical Legal Studies and Feminist Legal Thought).

The hard part is concluding the course. Using Santayana was too easy. I quoted from the end of Arthur Allan Leff’s Unspeakable Ethics, Unnatural Law, 1979 Duke L.J. 1229:

As things now stand, everything is up for grabs. Nevertheless: Napalming babies is bad. Starving the poor is wicked. Buying and selling each other is depraved. Those who stood up to and died resisting Hitler, Stalin, Amin, and Pol Pot — and General Custer too — have earned salvation. Those who acquiesced deserve to be damned. There is in the world such a thing as evil. [All together now:] Sez who? God help us.

I used W.H. Auden’s edit of his poem “September 1, 1939” which initially ended, “We must love one another or die,” and which he later changed to “We must love one another and die.” I used a quote from the English legal historian Frederic W. Maitland: “The only direct utility of legal history . . . lies in the lesson that each generation has an enormous power of shaping its own law.” And most recently I ended with a quote from the late philosopher Leszek Kolakowski, “We learn history not in order to know how to behave or how to succeed, but to know who we are.”

The question is, how does one bring meaning to what we do, whatever we do. That is the instrumental value in teaching any jurisprudence-type course. Teaching legal history gives me an opportunity to offer some thoughts on one’s purposes in practicing law, both soaring and prosaic (indeed often banal) thoughts, and I’m luckier (blessed?) for it.