Deliberation,
Practical Wisdom, and Idealism:
The
Complex Brilliance and Profundity of

Kronman’s
LOST LAWYER, Second Essay

Michael Sean Quinn*
On November 26, 2014, I published a blog-post on a book by
Anthony T. Kronman, a law professor, a Dean of the Yale Law School, and
institution where he has spent most of his adult life, and a philosopher.   In the book THE LOST LAWYER he is formulating
ideals of the legal profession which he claims dominated the image of
excellence in American for about 150 years, maybe starting around the time of
the Revolution, or so. Public mindedness is a central feature of that ideal is
important, and for this reason he names the image of the ideal “the
lawyer-statesman.”


In that blog I was not interested in the public
mindfulness of the ideal.  I was interested in how Kronman’s main principles apply to the private practice of
law. To some extent, he had a subordinate interest in the same thing.  In summary his lawyer-statesman image and implications the ideals involves a dedication to
the use of practice wisdom as a foundation for lawyering; the idea was, in part, that practical wisdom depends heavily on certain emotions, particularly sympathy; that truly excellent lawyer’s have talent for deliberation as well as advocacy; that the excellent practice of law requires that cases be thought of on a case-by-case basis and no fundamentally on the basis or iron-clad, universalistic rules, and that all of
these run so so deep that they counts as traits of character and so important that then should be treated as virtues.




BACKGROUND



Interestingly, these ideas stretch back to Greek
philosophers, in particular Aristotle, but with Plato in the background.  Kronman studied these topics as he took his
Ph.D. in philosophy at, where else, Yale. 
Much else in the book is philosophical, in particular his discussion of
the various jurisprudential theories of the Twentieth Century, including legal
realism, formalism, economic restructuralizations built into the nature and
content of the law, legal evolution, legal reasoning, and so forth. (In
addition, he realizes what many do not and that is that jurisprudence is really
philosophy of law by another name and that the philosophy of law is a province
within the empire of philosophy.


My other interest in the Blog of 11/26 was to rebuke
his current shallow critics. They are wrong about almost everything. A great
many lawyers agree that we should not view ourselves as “mere” technicians  executing our client’s predetermined plans
(even though we owe our clients a duty of loyalty and zealous representation),
nor are our normative roles in the attorney-client relationship simply helping
the client structure the means for his achieving his ends. Many of us believe
in helping, and actually try to help, clients consider their ends. Kronman
nails this idea perfectly; his critics seem to miss it and miss justifying this
complex conception of lawyering, and its public, social, and moral dimensions.


Here,  I want to do is introduce two–and there are plenty more–of the important
ideas  philosophical ideas that have a important impact on how insightful lawyers conceive of as being lawyers. 



One of them is idea of regret, an idea that that  critics discussed. I in Part I do not discuss this matter, and it may be very  important to some of us. 


The second idea is the idea of finding meaning in life. This idea does not so much involve how to  practice of law, as it does the  impact the practice may have on  souls practicing lawyers and how one conceives the nature of being a law-professional  will pollster or undercut the idea that the nature of the legal profession can provide practicing lawyers a route to finding life’s meaning for them.




 My remarks—and that’s all they are—are a tentative, speculative, and only possible criticism.


Regret


Kronman argues that the core principles of the ideal
help understand at least one feature of personal life.  The one he emphasized is regret. This is a special problem for many lawyers, if for
no other reason than many of us regret having become lawyers at all. But there are lots of other reasons too: 
  • “Why even did become being a divorce lawyer?” 
  •  “Litigation turns out not to be my thing. . . .Well, maybe environmental law would have been OK.”
  • Corporate law is so, so boring.”
  • “I’m so sick of the client’s bitching about fees. I wish I’d never gotten into this.  What I would given for a regular salary.”
  • “I’m so sick of insurance companies never paying anything even close to on time.”
And the list goes on and on.



The main
idea of Kronman here is if one feels regret—certainly, one might say—in any significant
decision, one is left with the situation of failing to be a friend to one’s self.  This idea, or image, comes from
Aristotle, and he was certainly right about it. 
At the same time, Kronman may be pointing out that practical wisdom and
deliberation may be helpful in avoiding dreadful decisions that get regretted
later and that they may be helpful and eliminating regret if and when it comes.


Here I have a small problem. The use of practical
wisdom, according to Kronman, is a matter of character—permanent character.  If so, I guess, it should be present in the young
“versions” of whoever has it as an adult. But surely that is when some of the
most regrettable decisions get made.  At
least many boys (and girls, I guess) are not capable of using practical wisdom
at a young age.  How can teenagers be expected to exercise practical wisdom in picking life goals, professions, callings, and so forth. It is fantasy to suppose that they can do this; it is dreaming to suppose that people are born with wisdom. 


And here’s another. The most significant regrettable
events in one’s life are not exactly making a decision but the failure to do
so. (“I’ve become a lawyer. This was a bad idea. I need to bail out.  I wonder where to go and what to do. I don’t
know. Nothing looks really attractive. I guess I won’t leave.”) One may not
even realize the source of whatever one’s consciousness is telling one.  (“I’m depressed. I’ve been so for a while
now. I wonder what’s causing it.)


Significantly, Kronman’s ideas about regret are not
restricted to the legal professional. The lives of lawyers—a group which may
have as much or more regret distributed around the profession as any other—is a
good place to focus.  Then again, it would be nice to have data as to whether lawyers have more regrets than other job categories–even other professions. 




Other folks from different vocational categories have not said much to me about their vocational regrets.  Then again, maybe I the wrong sort of person to whom to mention this sort of thing.


The Meaning of Life

A theme underlying Kronman’s whole book but which becomes explicit only towards the end is this: What difference will the way lawyers conceive the nature of law practice to be make in terms of this self images where this idea is conceived at its most profound level. Surely, says Kronman, public-spiritedness has an impact on this. If the essential nature of one’s profession is conceived this way–one for which membership is conceived as involving public-spiritedness as a necessary condition–the likelihood of a member of that profession regarding himself (herself) as a member of that profession, the more likely that person is to see herself (himself) as leading a meaningful life and therefor more likely to be saved from the doldrums of an ordinary and meaningless life. 

The ideal of the lawyer-statesman leads exactly to that situation. Hence, its adoption leads to finding–or being provided with–the meaningful life, even in secular societies and in secular times. A group of lawyers sharing the lawyer-statesman idea have the same “identity”: “Here’s who I am.” Once the lawyer-statesman ideal disappears, this sense of group and therefore personal identity dies with it. Business persons do not conceive themselves as being together in this kind of profession.

Interestingly, says Kronman, the philosopher and philosophy professor, the idea that a profession might be the way to find meaning in life is a new one. It began, he says, in the seventeenth century, and it was based upon ideal and attitudes generated by the protestant reformation.  The key  that came from there was the idea of a “calling.”  This idea was that one could find identity and salvation through work. One way of the bases of the idea of a “calling” was that human beings were helping God finish  the work of creation through their own productive labor.

Of course, Kronman observes, the Enlightenment, the industrial age, commercialism and perhaps “Modernity” itself have killed off the religious aspect of this idea but the secular theme of man’s participating his his own salvation, has lived on. It does this by conceiving some other secular activities as callings. A calling must involve high and honored human values, and only a view systematic set of activities will involve such a system of values. (I am tempted to be called them “values of secular holiness” or “values of secular sacredness.”) Obviously, Kronman say, if one conceives of the legal profession as a calling, whether religious or secular, that conceptualization will transform ones personality.

It is Kronman’s view that the decline and death of the ideal of  the lawyer-statesman has made it impossible to use it as the basis of a calling. He has not given up hope, however, for the personality that was transformed by the sense of mission that goes with having adopted a “‘calling‘ philosophy.” He thinks the altruism and the self of special significance that goes with classifying one’s self as one called can be recovered by devoting ones self to the more altruistic parts of life, e.g., family, community involvement, and perhaps closer connectedness to the parts of life involving love of fellow man.

How’z this for a profound foundation for at least some of legal ethics? Or of rules of (quasi law) governing the particulars of lawyer conduct?

If there is a principal criticism of this kind of view it is to be (1) found in the lack of empirical foundations for the proposition that lawyers since the Eighteenth Century (or, for that matter, at any time) have viewed themselves in this way, and (2) is to be fund in the artistic literary literature portraying the extent to which marriages have, for at least two centuries now, often been the opposite of a relation providing secular salvation. 

Another, so far as I am concerned, marginal criticism is that the term “calling” and the concept expressed by the word may be more complicated that Kronman’s use of it. For one thing, it could be doubted that a calling to serve God would actually be the only source of believing one had a meaningful life, even in the religious age.  For example, if one perused such a mission but had other life-problems, such a person might well have problems with seeing himself/herself as actually having a meaningful life. Or one could see other activities as contributor to “meaning.” 

One can imagine this being even more true in “the secular age.” It is easy to imagine L feeling that he had a calling to and in the law, but having a miserable marriage upon which he has placed a large “bet,” as it were, and ending up seeing himself as not having a really meaning life when his wife, and perceived “soul-made,” abandons him for her physical trainer.

Callings may not be everything, when it comes to meaning, and callings are never to one simple thing. (Maybe it would be better to say that there is no such a thing as a simple calling, or perhaps it should be said, t hat it is better to have several callings at once, at least in a secular culture. Charles Taylor, a Twentieth Century philosophy, whom Kronman quotes with favor, points out–perhaps following Aristotle, a Kronman favorite–that there are multiple values several of which, at least, must be chosen and balanced, in order to feel as though on is leading a good life.  Kronman himself endorses this view, roughly speaking, once he as given up the idea other lawyers of our time, or of future secular times, can fine meaning through having a professional calling.

Michael Sean Quinn, Ph.D., J.D., Etc.

Quinn and Quinn

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Originally posted on 01/23/2015 @ 7:19 pm

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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