Contrasting Legal Philosophies: Morality vs. Pragmatism

 

Summary

In today's discussion, we explored the contrasting philosophies of two influential figures in American legal history: Louis Brandeis and Oliver Wendell Holmes. These two men represent the divergent views of the 19th and 20th centuries, respectively. Brandeis, known for his moral and ethical approach, believed in the intrinsic truth and morality that transcends time and culture. He argued that morality is a continuous revelation through prophets and poets, emphasizing the importance of truth in law and life. Holmes, on the other hand, is associated with a more pragmatic and power-centric view of law, famously encapsulated in his "bad man" theory, which suggests that the law is best understood from the perspective of someone seeking to exploit it.

The discussion also touched on the evolution of legal thought, highlighting the rise of critical legal studies and law and economics, both of which have gained significant influence in modern legal academia. These schools of thought focus on power dynamics and efficiency, often sidelining the moral and ethical dimensions that Brandeis championed. However, the new natural law theory, led by figures like John Finnis, seeks to revive a more holistic approach to law, emphasizing basic human goods and practical reason.

We also delved into the ethical dimensions of law, contrasting the 19th-century view of law as a moral profession with the more adversarial and power-driven approach of the 20th century. Brandeis's vision of law as a profession dedicated to serving others and upholding moral standards stands in stark contrast to the modern view, where financial success often overshadows ethical considerations.

Finally, we considered the role of institutions and individuals in promoting moral knowledge and ethical behavior. While institutions may be slow to change, there is potential for individuals and smaller groups to influence broader societal norms and values. This approach aligns with the teachings of Dallas Willard, who emphasized the importance of personal integrity and moral action in everyday life.

Key Takeaways:

1. The Tension Between Morality and Pragmatism: Louis Brandeis and Oliver Wendell Holmes represent two distinct approaches to law and morality. Brandeis believed in an unbroken flow of moral truth, while Holmes focused on the pragmatic application of law. This tension highlights the ongoing struggle between ethical ideals and practical realities in legal and personal decision-making. [02:40]

2. The Rise of Critical Legal Studies and Law and Economics: These modern schools of thought emphasize power dynamics and efficiency, often at the expense of moral and ethical considerations. While they offer valuable insights into the functioning of law, they can be reductionistic, neglecting the deeper moral questions that Brandeis and others have raised. [05:56]

3. Reviving the Moral Dimension of Law: The new natural law theory seeks to reintroduce moral reasoning into legal discourse, focusing on basic human goods and practical reason. This approach offers a counterbalance to the power-centric and efficiency-driven models that dominate contemporary legal thought. [07:06]

4. The Ethical Role of Lawyers: Historically, lawyers were seen as guardians of their clients' consciences, upholding moral standards in their practice. Today, this role is often overshadowed by adversarial tactics and financial incentives. Reviving this ethical dimension requires a commitment to serving others and prioritizing moral integrity over personal gain. [10:40]

5. Influencing Change Through Individuals and Small Groups: While institutional change may be slow, individuals and smaller groups can have a significant impact by promoting moral knowledge and ethical behavior. This approach aligns with Dallas Willard's teachings, emphasizing the importance of personal integrity and moral action in everyday life. [18:37]

Youtube Chapters:

[00:00] - Welcome
[00:10] - Introduction to Brandeis and Holmes
[01:20] - Brandeis's Influence and Legacy
[02:23] - The Moral Principles Debate
[03:41] - Holmes's Pragmatic Approach
[05:15] - Modern Legal Schools of Thought
[06:48] - Critique of Reductionistic Views
[07:27] - New Natural Law Theory
[08:07] - Legal Ethics and Professional Standards
[09:54] - The Bad Man Theory of Law
[11:00] - The Ethical Role of Lawyers
[12:26] - Risks of Higher Law Beliefs
[13:33] - Dallas Willard's Moral Philosophy
[15:00] - Human Goods and Practical Reason
[16:03] - Avoiding Religious References
[18:12] - Influencing Change Beyond Institutions

Study Guide

### Bible Study Discussion Guide

#### Bible Reading
1. Micah 6:8 - "He has shown you, O mortal, what is good. And what does the Lord require of you? To act justly and to love mercy and to walk humbly with your God."
2. Matthew 7:12 - "So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets."
3. Proverbs 21:3 - "To do what is right and just is more acceptable to the Lord than sacrifice."

#### Observation Questions
1. What are the key differences between Louis Brandeis's and Oliver Wendell Holmes's views on law and morality? [00:27]
2. How does the sermon describe the influence of critical legal studies and law and economics on modern legal thought? [05:15]
3. What role does the new natural law theory play in reviving the moral dimension of law according to the sermon? [07:06]
4. How does the sermon illustrate the ethical role of lawyers in the past compared to today? [10:40]

#### Interpretation Questions
1. How might the tension between morality and pragmatism in legal thought reflect broader societal struggles between ethical ideals and practical realities? [02:40]
2. In what ways do critical legal studies and law and economics challenge or support the moral and ethical dimensions of law? [05:56]
3. How does the new natural law theory propose to balance power-centric and efficiency-driven models in contemporary legal thought? [07:06]
4. What implications does the shift from a moral profession to a more adversarial and financially driven legal practice have on society? [10:40]

#### Application Questions
1. Reflect on a time when you faced a decision between a moral ideal and a practical reality. How did you navigate that tension, and what would you do differently now? [02:40]
2. Consider the influence of power dynamics in your workplace or community. How can you ensure that ethical considerations are not sidelined in favor of efficiency or power? [05:56]
3. How can you incorporate the principles of the new natural law theory, such as focusing on basic human goods and practical reason, into your daily decision-making? [07:06]
4. In what ways can you, as an individual or part of a small group, promote moral knowledge and ethical behavior in your community? [18:37]
5. Think about the ethical role of professionals in your field. How can you prioritize serving others and upholding moral standards over personal gain? [10:40]
6. How can you apply the teachings of Dallas Willard on personal integrity and moral action in your everyday life? [18:37]
7. Identify a specific area in your life where you can act justly, love mercy, and walk humbly with God, as described in Micah 6:8. What steps will you take this week to live out this calling?

Devotional

Day 1: The Tension Between Morality and Pragmatism
In the realm of law and life, there exists a profound tension between moral ideals and pragmatic realities. Louis Brandeis and Oliver Wendell Holmes epitomize this dichotomy. Brandeis championed the belief in an unbroken flow of moral truth, suggesting that morality is a continuous revelation that transcends time and culture. He emphasized the importance of truth in both law and life, advocating for a legal system that upholds ethical standards. In contrast, Holmes's pragmatic approach, encapsulated in his "bad man" theory, views the law through the lens of those who seek to exploit it. This perspective prioritizes the practical application of law over moral considerations, highlighting the ongoing struggle between ethical ideals and practical realities in decision-making. [02:40]

Isaiah 5:20-21 (ESV): "Woe to those who call evil good and good evil, who put darkness for light and light for darkness, who put bitter for sweet and sweet for bitter! Woe to those who are wise in their own eyes, and shrewd in their own sight!"

Reflection: Consider a recent decision you made where you prioritized practicality over morality. How might you approach a similar situation differently, with a focus on ethical integrity?


Day 2: The Rise of Critical Legal Studies and Law and Economics
Modern legal thought has seen the rise of schools like critical legal studies and law and economics, which emphasize power dynamics and efficiency. These approaches offer valuable insights into the functioning of law but often do so at the expense of moral and ethical considerations. By focusing on power and efficiency, they risk becoming reductionistic, neglecting the deeper moral questions that figures like Brandeis have raised. This shift in focus reflects a broader trend in society where ethical dimensions are often sidelined in favor of more pragmatic concerns. [05:56]

Ecclesiastes 7:29 (ESV): "See, this alone I found, that God made man upright, but they have sought out many schemes."

Reflection: Reflect on an area in your life where efficiency has overshadowed ethical considerations. How can you realign your priorities to ensure that moral values are not compromised?


Day 3: Reviving the Moral Dimension of Law
The new natural law theory seeks to reintroduce moral reasoning into legal discourse, focusing on basic human goods and practical reason. This approach offers a counterbalance to the power-centric and efficiency-driven models that dominate contemporary legal thought. By emphasizing the importance of moral reasoning, this theory seeks to revive the ethical dimensions of law, encouraging a more holistic approach that considers both practical and moral aspects. This revival is crucial in a world where ethical considerations are often overshadowed by pragmatic concerns. [07:06]

Micah 6:8 (ESV): "He has told you, O man, what is good; and what does the Lord require of you but to do justice, and to love kindness, and to walk humbly with your God?"

Reflection: Identify a decision you face this week where you can apply moral reasoning. How can you ensure that your choice aligns with both practical needs and ethical values?


Day 4: The Ethical Role of Lawyers
Historically, lawyers were seen as guardians of their clients' consciences, upholding moral standards in their practice. Today, this role is often overshadowed by adversarial tactics and financial incentives. Reviving this ethical dimension requires a commitment to serving others and prioritizing moral integrity over personal gain. Lawyers, and indeed all professionals, are called to uphold ethical standards and serve as examples of integrity in their fields. This commitment to ethics is essential in maintaining the trust and respect of those they serve. [10:40]

Proverbs 11:3 (ESV): "The integrity of the upright guides them, but the crookedness of the treacherous destroys them."

Reflection: Think about your professional or personal role. How can you act as a guardian of integrity and conscience in your interactions with others?


Day 5: Influencing Change Through Individuals and Small Groups
While institutional change may be slow, individuals and smaller groups can have a significant impact by promoting moral knowledge and ethical behavior. This approach aligns with the teachings of Dallas Willard, who emphasized the importance of personal integrity and moral action in everyday life. By focusing on personal and small group efforts, individuals can influence broader societal norms and values, fostering a culture of ethical behavior and moral integrity. This grassroots approach to change highlights the power of individual actions in shaping the world around us. [18:37]

1 Timothy 4:12 (ESV): "Let no one despise you for your youth, but set the believers an example in speech, in conduct, in love, in faith, in purity."

Reflection: Identify a small group or community you are part of. How can you lead by example in promoting ethical behavior and moral integrity within this group?

Quotes

"Morality was truth and truth had been revealed a man and an unbroken continuous and consistent flow by their great prophets and poets of all time he quoted Goethe and German and from Euripides by way of Gilbert Murray on it win an impressive almost frightening glimpse of an elemental force." [00:02:57]

"The Justice wrapped the mantle of Isiah around himself, dropped his voice of a full octave, jetted as I browse forward in a most menacing way and began to prophesy morality was truth and truth had been revealed a man and an unbroken continuous and consistent flow by their great prophets and poets of all time." [00:02:57]

"Critical legal studies group on the left, critical race theory, critical feminist theory all that flows from from that they speak very prophetically and I think powerfully about injustices within the country but their underlying their underlying theory is that all laws power and it's just a matter of gaining power." [00:05:36]

"The real purpose of law is efficiency and I by the way when as a Christian would say there's things to learn there's value in both of these but both of them are reductionistic the other school that hasn't gained nearly the influence that they have but that has given credibility I think to a more on the 19th century viewpoint is the new natural law theory." [00:06:46]

"Brandeis thought the movement should be completely in the opposite direction that business should adopt professional standards etc and when he when he describes when he defines what a profession is number one is the level of learning required number two it's an occupation which is pursued largely for others and not merely for oneself." [00:08:59]

"George charge Wood says it's the duty of counsel to be the keeper of the conscience of the client not to suffer him through the influence of his feelings or interest to do or say anything wrong David Hoffman said he wouldn't take a claim that wasn't a just claim quote the the good lawyer or the client shall never make me a partner in his knavery." [00:10:30]

"One of the risks of believing in a higher law or moral knowledge is that it can be you know a hammer for and it can be abused and Blackstone is kind of the hero of natural lawyers I mean he believed slavery was consistent with the common law now he came around interestingly by the the influence of some people associated with the Clapham sect." [00:11:34]

"If we're going to claim moral knowledge and act based on moral knowledge we need to carry with that sense of modesty which Brandeis and our friend Dallas Willard had in spades so just a couple of critiques and then then a suggestion going going forward I mentioned the new natural law Dallas at page 367 gives us his definition of of a good person." [00:13:10]

"John Finnis is the within legal education the the champ champion of the new natural law so that's kind of legal philosophy the paper I talked also about legal ethics and you see parallel developments there also in many ways epitomized by Brandeis in homes and things that they they said and I didn't we didn't we didn't plan it this way." [00:07:13]

"By contrast moral sayings are mainly focused upon the face-to-face interactions do unto others as you would have them do unto you and love your neighbor as yourself are two of the most well-known of such sayings you know that with the scare quotes and you know never a mention of Jesus or you know somebody it just seems like he's sort of running away." [00:17:12]

"Lawyers can abuse the authority that that they have I mean can be paternalistic can be authoritarian and can fail to listen to clients can fail to to really speak for for clients I love Brandeis this little quote which he used over and over and over again all this law clerks heard this one from Euripides the worldly wise are not wise claiming more than mortals know." [00:12:43]

"Individuals that are intent upon advancing the various goods of human life with which they are effectively in contact in a manner that respects the relative degrees of importance of those goods into the extent to which their actions can actually promote the existence and maintenance of of those Goods and then over on the next page down at the bottom he identifies what he means by human goods." [00:14:00]

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Transcript
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