The Catholic Lawyer

Volume 7 Number 4 Volume 7, Autumn 1961, Number 4 Article 4

Christian Precepts in the Common Law

John G. Hervey

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JOHN G. HERVEY*

BRING YOU THE GREETINGS of the official family of the American Bar Association and of the Section of Legal Education and Admis- sions of that Association in whose cause I have labored for almost fourteen years. Those of us who are familiar with your institution share -with you the pride in your accomplishments during the past decade. We are as thrilled as you are by your plans for even greater excellency. I come now to address myself to a subject which has intrigued me for many years. Bear in mind please that what I now have to say is strictly personal. The ideas I propose to advance today have not been submitted to the Council for consideration. It is simply that your speaker has labored in the vineyard of legal education for more than thirty years. He has certain fixations which he believes are entitled to merit and he now shares them with you. But these fixations are not intended, in any manner, to reflect the views of the Council of the Section or of the American Bar Association. Some years ago I expressed the thought that the Church-related law schools of America should be different from secular institutions - that such schools unlike those which are supported out of legislative appro- priations, in training the lawyers of the future, should consciously synthesize the Christian precepts with knowledge of the law and with professional responsibility. It has been my practice each summer to peruse the catalogues of the approved law schools and my readings disclosed no substantial differences between the programs offered in the various law schools, i.e., whether Church-related, public-related, or independent. In some of the metropolitan areas, wherein law schools of all types are operated, the catalogue statements disclosed no differences in the stated objectives of the several schools. True it is that .the words have not been the same, but the stated aims could not have been more identical if the deans of the several schools had exchanged drafts prior to publication.

t The following is the text, in part, of an address delivered at the 1961 Law Day Banquet of Saint Mary's University School of Law in San Antonio, Texas. * Dean and Professor of Law, Oklahoma City University Law School. 7 CATHOLIC LAWYER, AUTUMN 1961

There are reasons for some identity of the cynicism and moral indifferentism objectives irrespective of the type of insti- which pervade much law teaching in the tutional attachment. There is the obvious secular institutions. The faculty members time pressure with which both lawyers and can, even now, delineate and underline law schools are all too familiar. There is the Christian foundations of the common an ever-expanding range of technical sub- law which they now teach. The excuse that ject matter that must be covered within the "time does not permit" or that "bar exam time period allotted to law study. The subjects have precedence" is wholly unac- three-year program for full-time students ceptable to me. Every law teacher in every and the four-year program for part-time law school, non-secular as well as secular, evening students have become fairly stand- could, if he would exert himself, infuse the ardized throughout the law school world Christian precepts into every course pres- with a departure from standard practice in ently taught in the law schools. only a few institutions. The time limitation And now, with that off my chest, to re- and the lengthening range of materials to turn to my theme. Seven years ago I said be covered have been discussed and redis- that I believed firmly that every Church- cussed in formal meetings of law school related law school owes an obligation to people. Few schools, however, have been its sponsoring parent, to the profession, so bold as to venture forth on extended and to the public to be served, to empha- programs. size the Christian precepts which are back A concomitant of the limited time factor of the common law. The matter has been has been the specification of bar examina- taken seriously by the faculties in a few of tion subjects in the rules governing admis- the schools. In the reshaping and imple- sion to practice in the several states. Since mentation of their objectives, they have the traditional law school program is given heed to the exhortation of Saint geared to the preparation of graduates for Thomas More that "we cannot desire what immediate entrance into the practice of we do not know nor can man achieve what law, the curriculum planners, in every law he does not understand." school, have perforce had to keep in mind In the Spring, 1961 issue of The Catho- the "bar exam hurdle." lic Lawyer, published by the St. Thomas If you will indulge me an aside, I shall More Institute for Legal Research of St. return immediately to my theme. I would John's University School of Law, there is like to say that I do not acknowledge the a provocative article styled "Society Chal- validity of the argument, made by some lenges The Lawyer" by Vice Dean Theo- Church-related law school teachers, that dore H. Husted, Jr. of the University of the time limitations and the bar examina- Pennsylvania Law School which merits a tion hurdles make it virtually impossible careful reading by every law school teacher. for a Church-related law school to be dif- He states the problem thusly: ferent from a secular school. In teaching Members of our profession are largely re- the bar examination subjects within the sponsible for our political and constitu- traditional three-year and four-year pro- tional heritage based upon the existence grams, a law faculty in a Church-related of a rational order of truth and justice school, can, with the will to do it, avoid which man did not create, but which he CHRISTIAN PRECEPTS

could discover. From this tradition the the law schools have not delineated and founding fathers drew the concepts of free- underscored the relationship of our inher- dom under law, of justice, of human equal- ited legal principles and the Christian pre- The ity, of representation and of consent. cepts of justice and human worth. legal profession can be justly proud of this is much that the law schools, es- contribution, but pride in this genesis does There not excuse us from the obligation of stew- pecially the Church-related ones, can do ardship. If our profession sired our consti- about it. Each law teacher can place the tutional system, we have all the more emphasis where he pleases in each course. obligation to see to it that it works -that He can develop or ignore the Christian your nation does not lose sight of those precepts. He can present the law as the self-evident principles upon which it was founded. In carrying out our obligations product of economics or of history or of of client loyalty, we must not ignore the sociology. He also can show it to be right fact that there is a law beyond the letter of reason in an attempt to promote justice a statute, beyond the doctrine of stare de- among God's highest creations. In evalu- cisis, to which we and they are subject. If ating legal problems yet to be solved the our loyalty to our clients and our pride in our technical skills cause us to lose sight teacher can proceed cynically, casuistically of justice and social responsibility, we breed or purposively. If he proceeds purposively, contempt for law. We ask the public to his starting point can be the natural law or show respect for law and lawyers while we Freudianism, Marxism, Existentialism or depreciate our currency or peddle shoddy any of the other fads of thought. under the label of law. merchandise The highest work and most challenging Dr. John Wu, distinguished professor of task today facing any Church-related law law at Seton Hall University, has well said: faculty is to inquire and judge as to each It is no exaggeration to say that Anglo- course: What are the relationships of the American Jurisprudence - the Common chief problems of this course to Christian Law of England before the 19th and the precepts? How can the course content be Common Law of America since the 18th infused with Christian concepts? What - the spirit of century is permeated with fixed legal doctrines, to be covered in this Christianity to a greater degree than any law and ethi- other system of law except Canon Law. course, contravene the moral You will find dark spots here and there; cal values? What can be done in this course but where the Common Law is at its best, to bring the law back to the point where you feel that Christ Himself would have the Christ, if present, would smile on the smiled upon its judgments. judgments in this field? Mayhaps your reaction is: "Well, Her- Believe me when I say that the field is vey, so what? What can the law schools do ripe. The secular institutions have no mo- about it all?" And may I in turn ask nopoly on educating for the legal profes- whether the Christ would, if present today, sion. During the academic year there are smile upon the judgments of our courts or 38,158 law students enrolled in the under- give His blessing to the innumerable stat- graduate divisions of the A.B.A. approved utes on the law books? And if not, then law schools in the United States. Signifi- why not? I doubt that He would smile upon cantly, more than 29 per cent, or 11,225 the judgments or applaud the statutes. to be exact, are enrolled in the Church- And the reason therefor would be because related schools- 6,207 of the 11,225 are 7 CATHOLIC LAWYER, AUTUMN 1961 enrolled in law schools attached to Roman the field of industrial employment there is Catholic institutions of higher learning. also liability irrespective of fault on the Assuredly 29 per cent of the undergradu- part of industrial workers engaged in haz- ate law school population is sufficient to ardous tasks. But here the liability was make an imprint upon the profession in imposed initially by legislative enactment. the years ahead if there be the will on the In teaching this area of the law, the part of the teachers in the Church-related astute teacher can explore the moral justifi- institutions to be up and about the job at cation of a legal rule which requires one hand. sans moral responsibility to bear the loss Some years ago, upon receipt of a copy for the harm suffered by others who are of the earlier address to which I have re- morally responsible. And this more espe- ferred, the dean of one Church-related cially in posing hypothetical cases for dis- school wrote me that the address had been cussion respecting unsettled problems in made "required reading" for all members the field. of his faculty. He asked that I delineate in Those who now study in the law schools greater detail. With your indulgence, I will be the makers and the expounders of should like to explore specific delineations the law of tomorrow. Let us never forget in a few of the fields covered in every law that fact. The imprint which is made on school. these lawyers in embryo will carry over. Permit me to take first the "obligations Permit me to illustrate. We are rapidly imposed by law." These are commonly becoming a nation of "brand-name con- covered in the course on negligence. Moral sumers." Madison Avenue is devoted to responsibility is a Christian precept. The the task of making America brand-name Scriptures teach the accountability of indi- conscious. We seldom purchase a com- viduals for their wrongful acts. The com- modity as such - we ask for and purchase mon law follows the Christian concept that brand-name products all the way from the liability for harm occasioned by one party cradle to the grave. Should manufacturers and suffered by another should be related of brand-name products be held liable? If to the moral responsibility of the person. the consumer suffers injury as a result of But the notion that legal liability should the use of a brand-name product, should follow fault has been attacked in recent the manufacturer thereof, who is without years. The doctrine now being urged, both fault, be held liable at law on the theory in the courts and in the legislative halls, is that he can better protect himself via in- that damages for injuries suffered should surance and thus spread the costs among be borne by the party better able to bear all consumers of said product? How far them. This doctrine completely ignores the should public policy go in decreeing strict Christian precept of moral responsibility. liability without moral responsibility? There are some circumstances in which Frankly, I do not know. But the genera- the law imposes liability regardless of fault. tion of lawyers now being trained in the The liability of innkeepers and public car- law schools of the nation will have to an- riers immediately comes to mind. These swer the question when they come to sit are instances in which the common law in legislative halls and on the bench. I seri- was initially expounded by the judges. In ously question whether the training we now CHRISTIAN PRECEPTS Law at New York University, has well give them will be adequate for the tasks said: ahead. or a State Legislature in a Let me shift to another field of instruc- The Congress single session can produce more law that of criminal law and proce- tion - the field impinges on or vitally affects more people dure. The Christian precept of moral than does the average output of a Supreme responsibility is being perceptively eroded Court in a decade. criminal law field. The do-gooders in the The modern state constitutions generally certain of our sociologists and crimi- and declare that all persons have the inherent have set about consciously to nologists right to life, liberty, the pursuit of happi- the criminal law. Say they: "Soci- change ness, and the enjoyment of the gains of the individual, is responsible for ety, not their own industry. The forerunner of such the criminal acts of men." They argue that is, of course, the Great Charter of King the emphasis in the criminal law should John, the Magna Charta, granted at Run- be upon rehabilitation and not therefore, nymede on June 15, 1215, which expressly upon punishment; that punishment does provided: "We also have granted to all the deter criminals; and that thus the law not freemen of our kingdom, for us and for convict men of crimes in order should not our heirs forever, all the underwritten lib- to punish but in order to rehabilitate them. erties, to be had and holden by them and have expended millions of dollars We their heirs, of us and our heirs forever," upon rehabilitation, and crime in the United and thereinafter delineated those liberties States today is more rampant than ever. at length. It goes back also to the unani- the number of juvenile offenders is And mous Declaration of the thirteen United staggering. Why? Quite candidly, I think States of America, of July 4, 1776, com- it flows in large part from the de- that monly referred to as the Declaration of on moral responsibility - be- emphasis Independence, which, after referring to the the fear of certain punishment has cause Laws of Nature and of Nature's God which removed. I do not like it. I would been permit a people to dissolve the political shift the emphasis back to certain definitely bands which have connected them with for deliberate departures from punishment another government, expressly declared: moral conduct. righteous "We hold these truths to be self-evident, I have mentioned the possibilities for that all men are created equal; that they emphasis of Christian precepts in the fields are endowed by their Creator with certain of negligence and criminal law. The whole unalienable rights; that among these, are field of public law is ablaze with opportuni- life, liberty, and the pursuit of happiness." ties to underscore the Christian precepts. Every constitution of every modern po- This is the area of the law in which public litical organization contains its bill of policy, more than in any other field, has rights. It is to insure individual rights that been and will continue to be fixed by legis- government is instituted among men. If lative bodies in which the lawyers exert the individual rights thus guaranteed are to the greatest influence. Public policy cir- be enjoyed then perforce legislative fiats do cumscribes individual rights. As Dr. Shel- not necessarily constitute law. If a legis- den E. Elliott, Director of the Institute of lative enactment contravenes individual Judicial Administration and Professor of 7 CATHOLIC LAWYER, AUTUMN 1961

rights as delineated in the basic law, the stewardship thereof - wars also have been courts decline to follow the legislative de- fought on that score. Finally, they recog- cree. The real lawgiver is thus not the nize that, under certain circumstances, the legislature which enacts the statutes but owner's rights therein are subordinate to the judges who expound them. the claims of the "society" in which he The rights and liberties of the individual, lives. But the Christian precepts speak as we well know, are usually stated in pointedly also on the composition of the "society" general terms. For example, the due proc- which is entitled to make the ess clauses of the fifth and fourteenth claims. amendments of the Constitution of the Man is created in the image of God. United States guarantee "life, liberty, and The Christian precepts emphasize the indi- property" but do not define them. Whence vidual. Society, in which man must live, come individual rights? Are they implicit is only a means by which man may realize God's highest creation? Are they conferred the potentialities of his creation. Thus the by the sovereign? If they be inalienable, as problem of the individual versus the soci- our Founding Fathers decreed, then they ety in which he lives. As one writer has antedated the present state. The decisions said: "The problem of synthesis is difficult; repeatedly traced them back to the natural it cannot be (individual) freedom from law. society, and (as with Rousseau and the Every teacher of constitutional law Communists) the freedom of man cannot should expound the "natural law" as the be equated with the perfection of society source of human rights. He can search for - a society which is therefore justified in the fountain of right and contrast the removing the nonconformist." Stoics with Aristotle, and Locke and Rous- Lawyers need to recognize that they, seau with St. Thomas Aquinas. By a resort more than any other organized group, un- to the sources, the teacher can instill in less it be the clergy, are responsible for his students, whether they later become the kind of society in which individuals legislators or judges, respect for the natu- exercise their inalienable rights and God- ral law and Christian traditions of justice, given freedoms. Shall it be a society which enhance their respect for human dignity de-emphasizes the spiritual values of the and individual rights, and thus turn back individual and emphasizes the material the pressures of the age which would cast values of the masses? Shall it be a society all men in a common mold to a common which recognizes that mass opinion ex- end. pressed through government is only a Finally, I invite your attention to the means to an end and not the end in and field of property law. It covers generally of itself? Shall it be a society which ac- the acquisition, production, allocation, and knowledges and preserves the freedoms of distribution of rights and interests viewed the natural law? Or shall it be a society of primarily as sources of wealth. the "organization man" wherein "together- The Christian precepts decree that prop- ness" strangles the creativeness of the indi- erty should be respected - wars have been vidual? Shall it be a society which, by the fought on that score. They decree also legal process of inheritance taxes and pur- that the owners thereof acknowledge their poseful deflation of the medium of ex- CHRISTIAN PRECEPTS change, reduces man to a common level? conclusion, America will come out at pre- Shall it be a society which decrees that cisely the same point as Hitler did in Mein religion is only an opiate to hold the masses Kampf and as Hobbes did in his Leviathan. in subjection? Shall it be a society wherein What Holmes was saying, of course, is that nonconformists are extinguished or one in the judiciary is not the only agency of which conformists may be extinguished government charged with the protection of after they have served the purposes of the the liberties of the people- the identical rests equally upon the legisla- leaders? Shall it be a society which en- obligation tive bodies which enact the statutes of the dorses the annihilation of a race because land. Those are the bodies in which law- allegedly evil blood flows in its veins? yers predominate and supply the leader- These are serious questions. They cut ship, if any. across fields of the law other than prop- Thus I end, where I began, with a plea erty. Your speaker was never more serious that every law teacher in every Church- when he asked them. Remember, if than related law school restudy the Christian the late Mr. you will, the observation of precepts and that, insofar as possible, he Justice Holmes, in Noble State Bank teach course contents with emphasis on v. Haskell, when he said that the police those concepts. I acknowledge that many of power of the state, the power of govern- the old teachers are past praying for. If ment to regulate men and things, "may be left to them, the free men of Western put forth in aid of what is sanctioned by civilization will likely become the slaves of usage, or held by the prevailing morality a totalitarian state. But for the younger or strong and preponderant opinion to be law teachers in the Church-related law greatly and immediately necessary to the schools, there is time for repentance. The public welfare" - that the constitutional one last hope that Western civilization will limitations do not preclude it. Assuredly, survive with emphasis on individual free- if that preachment be carried to its logical doms and human dignity rests with them. 304 7 CATHOLIC LAWYER, AUTUMN 1961

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