In a previous blog, I wrote about the question of justice, namely, that learning the law without learning to think about what is the right thing to do is, in short, to be learning aimlessly, to be learning without sprit, to be selling our students short. It is an empty vain experience. What Does Justice Have to Do with Learning the Law? Everything!
And, as a consequence of our (my) failure to so often talk about principles of justice throughout our (my) classes, we are often creating a toxically-damaging learning environment because our students came to law school not to just memorize cases but to learn to do justice. Thus, without actively incorporating discussions of justice within our courses, our students JUSTIFIABLY feel like justice has very little to do with why they came to law school in the first place. No wonder they struggle so often to feel like they fit in. They don't.
But, it's not because they don't fit in law school. Rather, its because we don't fit in law school because we are so often not getting at the real root of the purpose of our legal education, namely, righting and healing and restoring relationships in a broken fragile world. As a consequence, we should not be surprised when our students are not jazzed about our intricate discussions and hyperactive hypotheticals that are so often devoid of heartfelt life yearings.
So, that brings me to a suggestion on how to incorporate principles of justice within the study of law.
First, be bold. Name it. Let your students know that justice is difficult, its edgy, its often amiss.
Second, provide a framework.
As a tool, it might be helpful to explore possible ways to think about what the right thing to do might be. As set out by Dr. Michael J. Sandel in his wonderful book entitled "Justice: What's the Right Thing to Do?," there are three major principles that we might look towards for guidance as to justice: (1) the welfare principle; (2) the freedom principle; and, (3) the virtue principle. http://justiceharvard.org/justice-whats-the-right-thing-to-do/ Please note: If you happen upon Amazon, you can browse the first chapter of his book to brilliantly capture the scope of the three approaches. If not, here's my own simplistic version:
1. The Welfare Principle might also be called the "Mostest-for-the-Greatest" principle (or, as philosophers call it, the utilitarian principle). In brief, the right thing to do according to this principle is what would bring the greatest benefit to the greatest number in society. We often see this play out in constitutional litigation concerning something like the "undue burden" test in dormant commerce clause cases. It's a balancing test. We balance the burden on interstate commerce against the benefit to local state interests in order to see which might maximize the greatest good or utility or benefit. In another context, we see this principle called to duty – so to speak – in tort law concerning what a reasonably prudent person might due under similar circumstances. Finally, this principle is often discussed in the course of environmental litigation as to the benefits of environment regulation versus the societal costs.
2. The Freedom Principle seems to be widely adored but rarely advocated, at least in my survey of government litigation concerning constitutional rights issues. We might label this as the "Absolutist" principle, namely, that certain rights are absolutely off-limits from government coercion or usurpation or abolition. Think of freedom speech or freedom of religion. But, as we quickly learn in constitutional law, the First Amendment freedom of speech can be heavily regulated by the government provided the government provides a sufficiently "good" reason. For example, when the government silences a particular subject, it generally must meet strict scrutiny analysis by demonstrating that the restriction is necessary to achieve a compelling government interest. So much for absolute protection! Thus, we most often see the freedom principle give way to other perhaps competing arguments as to justice, often based on the welfare principle or the virtue principle.
3. So, that brings us to the Virtue Principle. We might call this the "Honor" principle. Think of the marriage cases. The issue in the marriage cases, at its roots, centered upon what sorts of marital relationships ought to be honored, with the court holding that the purpose of marriage is fundamentally about society honoring committed loving relationships among consenting people. In contrast to the arguments of many states, marriage is not fundamentally about children. Thus, the court, seeing that states honored opposite sex marriages but not same sex marriages, reasoned that all marriages regardless of gender must be honored the same because gender is irrelevant to the issue of loving relationships. In other words, the right thing to do is to honor consistently all marital relationships that share the same fundamental marital characteristics. In short, the court found that it was unfair to honor only opposite sex marriage but not other marriages because the failure to do so is dishonorable and not virtuous. Justice requires giving honor to what is deserving honor.
Now, as we see from many of the cases covered throughout law school, the courts are often bouncing haphazardly among these various conceptions of justice (and more) without saying what they are doing. Shame on them! That's where these principles of justice can come in mighty handily in law school classes. Let's get them out in the open! It's not that these principles will necessarily determine what is the right outcome in a particular case. But, arguments about these principles are what is at root in most cases. And, as complex people with many attachments and predispositions, we will start to see that we often favor one principle of justice at the expense of another (which is to say at the expense of others). So, just reflecting on these principles with our students can help our students better understand and appreciate how they can participate – as future attorneys – in helping to make society a little bit more just for the next generation. And, that's a great thing to learn in law school! (Scott Johns).
