by Justice Evelyn Keyes and Angela Spoede
This article is on a much deeper topic than the ones Angela and I usually write about. But I think it is one that is important to all of us—more than we commonly realize—and one we seldom think and talk about. Why, as lawyers and judges and future lawyers and judges, should we study the humanities? What do they offer us that we need in our daily personal and professional lives?
First of all, the legal system is a structured value system. The positive law—the public laws we write in our legislatures, incorporate in our law codes, and enforce in our legal decisions—can be defined as those values that we as a society have determined to promulgate, to publish, and to enforce as rules of conduct equally applicable to all (affirming equal protection of the law and due process). The law is the embodiment of the ordered rights and liberties that we and our fellow citizens mutually perceive to be essential to advance our common good. If you think about it, each operative concept expressed here—equality, rights, liberty, the common good—is a value concept, indeed a moralconcept. Law reflects what we as citizens of a republic founded on constitutional principles (fundamental value concepts) agree should be the common rules of conduct enforced equally by a government of all upon all and on behalf of all for our mutual safety and happiness (our common good). And when we determine that the law is not fair or just or does not produce good results (value concepts) we change it, using the tools of representative government—government grounded in respect for the equal dignity and worth of every person (the essence of value).
But what does that have to do with the humanities?
The humanities teach values and the means of analyzing and applying values—analysis, interpretation, logic, and evaluation. They give us the tools for making sound laws and sound legal arguments and judgments. Lawyers work every day with both the substantive values and the analytical tools given them by the humanistic study of “the best which has been thought and said in the world.”
Law takes values seriously. It does not treat them as historical artifacts to be examined with an entomologist’s microscope or an anthropologist’s critical legal theory. It treats values as things that matter to us and make us what we are.
What values do the humanities teach us that lawyers use? What tools do the humanities give us to apply our values to practical ends? Think about it.
English literature teaches us what it is to be fully human and how to think metaphorically and analogically, appealing to our emotions as well as our minds. It teaches us to interpret what the words on a page really mean and how those words, their context, and the artist’s tools work to shape meaning. It teaches us to look for what matters—what the author is ultimately trying to say and the tools he uses to say it. These are tools that a lawyer or judge can and should use to help his audience see what he sees from where he is in the context of where we are.
History teaches us what mattered to people in the past, what caused them to act as they did, what happened when they acted as they did, and which outcomes turned out to be better over the long term. This is all information invaluable to us in making our own decisions about what we as a society should value and how we should act (moral concepts) in present circumstances. The study of history gives a broader context to the specific conflicts and legal concepts that the bench and bar consider every day.
Philosophy offers us the tools of logical argument, complete with the thinking of the greatest minds of the past on the most profound questions of the present: What is justice? What are the good and the right? Does natural science or natural law or divine law or history have an essential arc that leads to an ineluctable end, or do we construct our own existences and are we responsible for our own destinies? How do we justify our lives? Does an ideal social contract or a set of objectively just fundamental principles underlie a truly just society, and if so, how? In seeking to answer these questions, the study of philosophy provides attorneys and judges with the vocabulary and language to consider such weighty concepts as rights, justice, and law. Though the concepts are abstract, their impact on the day-to-day functioning of a court is undisputedly concrete—it goes to the very heart of what courts do. The study of philosophy helps us learn to bridge the gap between abstract concept and concrete reality.
And the study of religion addresses the spirit and clarifies the moral codes for organizing our personal and social lives. Along with civil law (the Code of Hammurabi), religious law (the Ten Commandments) underlies most fundamentally the rule of law.
Think about how legal opinions (and briefs) are constructed and what they do. The first part of an opinion sets out the issues, the material facts of the case, and the governing law—what matters factually and legally, what is material to the decision. The judge then applies the law to the facts through logical argument from legal principles and the material facts, hopefully leading to a logical conclusion. When no clear answer flows from the black letter law as applied to the facts of the case, the judge applies principles of equity or soundness in considering the consequences of one judgment versus another. How well do the opinion and judgment accommodate the relevant principles and facts? What will be the effect of the decision on the law and on the parties? The judge evaluates the potential outcomes and reaches a judgment—a value judgment—that the judge objectively believes best accommodates all these considerations. And that decision is always subject to correction.
The entire process requires applying the values we as a society have determined to live by when there is a legal issue—an issue requiring resolution by the rules we have set down in our constitution and laws for the governance of all.
I end with this consideration. In one recent week, four of the five cases submitted to our panel for review and decision involved sexual assaults—sexual assault of an adult, sexual assault of a minor, sexual assault of a disabled person, and sex trafficking of a minor. Why is sexual assault a crime when love and sexual relations in the right context are at the core of our being and valued above all else? The key word is “right.” Doing what is “right” is the operative procedural word for enforcing moral values and laws. It lies at the core of how we construct a just society that advances the common good. It determines the behavior we penalize as crimes and wrongs, or torts, and the behavior we regulate in a society of ordered liberties.
Humanistic studies are studies of value, and they impart both substantive knowledge and the tools of analysis, interpretation, logic, and evaluation. We should continue to study, to think about, and to debate the substance the humanities impart to us, and to use the tools they give us to make informed decisions about what is best for all of us, as people, as citizens, and as guardians of the law.