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19-2-353-Anastaplo-Pdfa.Pdf (10.64Mb) Lawyers, First Principles, and Contemporary Challenges: Explorations GEORGE ANASTAPLO* Introduction .......................... ................... 354 1. Character, Fitness, and the Illinois Bar Revisited ............... 355 Addendum: Prof Who Took Costly Stand 45. Years Ago Sees Rewarding Dividend in its Consequences ... 370 2. Be Not Afeared: The Isle is Full of Noises .................... 375 3. Character and Honor: A Bicentennial Review ................ 383 4. Major Challenges for the Legal Profession in the United States ... 390 Addendum: On the Proper Shaping of Hearts and Minds ... 396 5. The Illinois Bar Exams ................................... 400 A. Bar Examinations and a Proper Legal Education ....... 400 B. The Bar Exam Examined ......................... 404 6. The Pursuit of Happiness and the Practice of Law .............. 406 7. Professional Ethics and the Bible ........................... 415 8. The Obligations of Victims: On the Melian Dialogue ........... 420 9. Aristotle on How the Soul Possesses Truth ................... 424 10. Thomas Aquinas and the Law of Laws ...................... 431 11. Death and Art in Cervantes's Don Quixote .................. 437 12. On Identity ........................................... 452 13. "The Law's Delay" Across the Centuries .................... 462 14. Serial Killings, the Mass Media, and Public Policies ........... 475 15. Technology and Community: Lessons From and For the Unabomber ................................ 481 Addendum: A Memorandum on the Matter of William H eirens ...................................... 495 16. Martin Luther King and His Letter from Birmingham Jail ...... 498 Addendum: Martin Luther King and the Soul of America .. 511 17. The Abuse and Proper Use of Power ....................... 514 A. A Return to the Air Force, by way of Littleton, Colorado ................................... 514 B. American Constitutional Law and the Attempted Rescue of Kosovo ............................ 523 * Professor of Law, Loyola University of Chicago School of Law; Professor Emeritus of Political Science and of Philosophy, Dominican University; and Lecturer in the Liberal Arts, The University of Chicago; A.B., 1948, J.D., 1951, Ph.D., 1964, The University of Chicago. (No e-mail reception. See www.cygneis.com/anastaplo.) NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 Addenda: I. The Columbine High Massacre in the World Press ...................................... 531 II. The Kosovo Campaign in the World Press .... 533 Conclusion .......................................... .... 538 INTRODUCTION The greatest trust between man and man is the trust of giving counsel. For in other confidences men commit the parts of life; their lands, their goods, their child, their credit, some particular affair; but to such as they make their counsellors, they commit the whole; by how much the more they are obliged [bound] to all faith and integrity. The wisest princes need not think it any diminution to their greatness, or derogation of their sufficiency to rely upon counsel. God himself is not without, but hath made it one of the great names of his blessed Son: The Counselor [Isaiah 9:6]. -Francis Bacon' The preparation of this Collection chanced to be stimulated by a current Illinois bar admission controversy which has reminded observers of my own bar admission controversy of the 1950s.2 My April 15, 1999 talk at Northern Illinois University, prompted by these reminders, has served as the point of departure in response to an invitation to bring together in this law review various (mostly previously unpublished) talks and papers of mine about lawyers and the law. There may be found, in the opening third of this Collection, several discussions of the legal profession at this time. These include, after reflec- tions upon bar admission controversies (in Parts 1, 2, and 3), examinations of lawyers and lawyering. We move thereafter from how the bar can look to prospective law students (Part 4), through how lawyers are trained and certified (Part 5), to how the bar looks to lawyers themselves (Part 6). Greater emphasis is placed, in the middle third of this Collection, upon the fundamentals which provide the grounding both for professional ethics and for the standards by which to judge what lawyers now do, are, and have. An intermingling of principles and practice may be seen throughout this Collection, which is perhaps inevitable whenever the affairs of one's day are 1. Francis Bacon, Of Counsel, in SELECrEDWRMriNGS OFFRANCIS BACON 55 (1955). This passage from Bacon continues in the text at infra note 470. 2. See, e.g., infra notes 8,9,13,472, 476. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 355 studied properly, especially since each part of a collection such as this was, when originally prepared, designed to stand alone, at least for the time being. The Bible and the Greek Classics are drawn upon as human nature and the basis for both morality and understanding are investigated (Parts 7, 8, and 9). The very nature of law is then considered (Part 10), before we delve into that awareness of mortality so vital for morality and, in modem times, for the issue of identity (Parts 1 .and 12). An application of the principles that have been surveyed, however tentatively, may be seen in the closing third of this Collection. After a recognition of the limits of law, glimpses are provided of a variety of legal systems (Part 13). Attempts are then made to provide useful commentary (political and "sociological," as well as legal) upon various contemporary events of a somewhat notorious character. These include, in turn, serial killings (Part 14), the perils of technology (Part 15), racial discord (Part 16), and extraordinary recourses to force both at home and abroad (Part 17). We return, in the Conclusion of this Collection, to the bar admission controversies with which we began. These controversies provide, therefore, the frame within which these discussions are displayed. This should remind us again of how much practical affairs (including ministering to troubled souls) do depend, both for their emergence and for their understanding and governance, upon chance 4 1. CHARACTER, FITNESS, AND THE ILLINOIS BAR REVISITED So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any contro- versy. -Publius' 3. See, e.g., Sections III, IV and VII of Part 3 of this Collection. Compare infra notes 236,243,354. 4. A talk given in the Honors Program, Northern Illinois University, DeKalb, Illinois, April 15, 1999. 5. THE FEDERAUST No. 1. See also infra note 241. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 I. It has been almost two decades since the semester during which I came out to this campus, fortnightly, to conduct a seminar on Xenophon. One critical lesson taught us by Xenophon might well be noticed on this occasion, and that is the importance of prudence in both public and private affairs. One suggestion I have made about Xenophon over the years can help illuminate our inquiry this evening. If Xenophon had been in Athens when Socrates' enemies undertook to indict him, Socrates would probably not have met the fate that he did. Xenophon was the kind of man who would have made it clear to Socrates' enemies that it was not in their personal interest to proceed with an indictment. He could be remarkably persuasive even with those who were not known for their reasonableness, a persuasiveness that was enhanced by his evident toughness, if not even by the hint of a latent ruthlessness. 6 I would regularly be picked up at the train stop in Naperville, during our Xenophon semester, by a young man who was quite interested in local politics. One subject to which we returned many times that semester was the Jeanine Nicarico murder case, which was frequently in the papers that year. My principal contribution to those conversations was my insistence that the official account of the matter, as reported in the press, somehow did not "feel" right to me. I will say more about the Nicarico case before I close, for it can shed light upon the issues I will be addressing on this occasion. It does chance to be a time, on this return trip by me to this campus, that that case is back in the news.7 The immediate cause of my remarks tonight is the Matthew Hale bar admission controversy which is very much in the news over in Will County. Here is how that case was recently described in the Chicago Daily Law Bulletin by Molly McDonough, a Law Bulletin staff writer who has been following the case closely: Avowed white supremacist and anti-Semite Matthew F. Hale has hired a veteran free-speech lawyer to help him obtain an Illinois law license. 6. On the trial of Socrates, see GEORGE ANASTAPLO, HUMAN BEING AND CrIZEN: ESSAYS ON VIRTUE, FREEDOM, AND THE COMMON GOOD 8 (1975). See also Section IV of Part 16 of this Collection. 7. See, e.g., Eric Zorn, DuPage 7 Trial Could Bring Out the 'Awful' Truth, CII. TRm., Apr. 8, 1999, § 2, at 1; Dan Rozek & Alex Rodriquez, Defense: Cruz Tried a Frameup, CI. SUN-TIMES, April 8, 1999, at 14; Ted Gregory & Maurice Possley, First Phase of DuPage 7 Trial Ends Bitterly, Ci. TRIB., Apr. 9, 1999, § 1, at 1; Eric Zorn, DuPage 7 Defendant Faces a Different Test of Character,CHII. TRIB., Apr. 17, 1999, § 2, at 1. See also infra note 34. 1999) LAWYERS, FIRST PRINCIPLES AND CONTEMPORARY CHALLENGES St. Louis attorney Robert Herman-whose clients include the Ku Klux Klan and a woman fighting to have "Aryan 1" appear on her Missouri license plate-agreed this week to represent Hale at his next character and fitness hearing, set for April.
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