College of Law, West Virginia University
First, some etymology work. Clever: showing skill or resourcefulness; marked by wit or ingenuity; deftness, or great aptitude; adroit, implying a skillful use of expedients to achieve one's purpose in spite of difficulties; cunning, implying great skill in constructing or creating; ingenious, suggesting the power to invent or discover new ways of accomplishing something. When my wife, who is from Thailand and not a native English speaker, uses the word clever, she means smart, a person with "street smarts" who uses what they know in ingenious ways to survive in a difficult world. Law, as much as any honorable discipline, is a place where one can make good use of cleverness.
I admire cleverness, when deployed on behalf of those who might otherwise succumb to the powerful, as a way to deal with restrictive conventional thinking. I need every bit of cleverness I have at my command (some of it indeed acquired by way of legal education and my work as a lawyer) and admire those with great cleverness, who use it to deflate arrogance and wrong-headed ways (as Socrates did). Cleverness is, of course, more than a matter of being smart and savvy; it has something to do with wisdom.
Socrates was concerned about Hippocrates becoming a sophist. The word sophist comes from the Greek — sophos — which means wisdom. Sophists like Protagoras were viewed with suspicion because they taught rhetoric, the art of persuasion in matters of which the speaker had no real knowledge (that is, no training, no insider expertise). Of course, there may be times when one needs exactly what sophists taught — the ability to argue with insiders using general knowledge rather than specialist, insider knowledge. Socrates may have been too hard on the sophists, as he too, was known to use sophist methods. Protagoras, although identified by Socrates as a sophist, holds forth in an admirable manner in Plato's rendition of the dialogue named for the famous orator. There was, one suspects, a difference between sophists. Some better, more admirable, than others. Protagoras, for example, was certainly superior in character to Gorgias, another famous sophist of the day. (Gorgias is also the title for another of Plato's dialogues that features Socrates.)
Students may be attracted to law, like Hippocrates was attracted to Protagoras, because of the possibilities open to one who can engage in clever speaking. But the attraction may not be an unmitigated disaster at all. Protagoras was not an evil man and while Socrates may have been right to question his teaching, Protagoras does not fare badly in his dialogue with Socrates. Some sophists, Protagoras in particular, were interested in wisdom, and had in mind teaching it. Socrates was, of course, dubious about such teaching, but, paradoxically, in a fashion not always different from the sophists he held in disdain, does exactly what he claims cannot be done — he teaches wisdom while saying he is not wise and cannot teach others to be. Law, too, holds out the promise of wisdom while lawyers deny that it is justice that lies at the heart of their practices. Law is all about the business of wisdom, and we in legal education must deal with dismissive talk about justice as irrelevant to "real" law (law that looks to the bottom-line, law that focus on the "bad-man" theory of jurisprudence). But whatever the rhetoric, there is much to be said in defense of the law as a way of wisdom; we are left with a sense that without law we are lost, that hope without law is a delusion.
How It Leads to Confusion
D.T. Jones, the protagonist in Stephen Greenleaf's novel, The Ditto List, says of his ambitions as a law student that he had believed himself to be "a fermenting mix of Perry Mason and Clarence Darrow, a nascent champion of lost causes, reviver of trampled liberties, master of the sine qua non of the trial lawyer's art — convincing anyone of anything." [Stephen Greenleaf, The Ditto List 20 (New York: Ballantine Books, 1986)]. Socrates might ask: how do such ideals, high-flying grandiose ones like those of D.T. Jones, and more modest, grounded ones, survive the acquisition of a Legal Mind? How do our ideals get us to the pinnacle of our educational lives, and then, so often suspended, devalued, and seemingly forgotten, during the course of legal education?
D.T. Jones is explicit about his desire to be a sophist, a master of clever speaking, "convincing anyone of anything." But like so many of us who find our way into law, D.T.'s desire to be a sophist conflicts with other images he holds of himself as a lawyer. Yes, he wants to be a sophist but he also imagines himself a champion of "lost causes" and "trampled liberties". The ideals associated with the clever speaking sophist and the champion of lost causes may be woven into an integrated life, but they seem more likely to lead to conflict and cognitive dissonance. The dissonance between images — clever sophist and man of justice — may lead into the labyrinths of self-deception. The practice of law, in ways both endearing and cruel, holds forth law as a shining ideal and permits and excuses our putting aside the ideals that might call into question our paid sophistry.
I will not, here, try to describe in detail the ideals of those who enter law school. But there is an aspect of their idealism that is relevant. We come to a discipline with Hope, faint or untutored, studies and committed, undisciplined, like Icarus flying with fragile wings toward the sun. D.T. Jones is not so unusual in believing he can do good as a lawyer, champion "lost causes," and right the wrongs to "trampled liberties." Even when things turn out differently in his life — he has become a divorce lawyer who pays his bills by handling routine non-contested divorce cases — he maintains an ability to articulate and bring his early idealism into his practice. Notwithstanding the ill-fated lives of his divorce clients (and his own dreams), D.T. Jones:
Our ideals tag-along with the reality of law work. They even accompany lawyers whose work seems virtually devoid of ideals.
One reason the first year of law school is so exciting and full of energy is our ideals seem within grasp, hope made real by putting law to use. It would be odd, distressing, and out of character to hear a student of law say: "I have come to this discipline but have no hope for it, no hope for what I might do in life with this profession."
Thomas Shaffer and Stanley Hauerwas have argued that Hope is an important skill for a lawyer. Optimism, according to Shaffer and Hauerwas, is little more than unskilled hope. In the case of Sir Thomas More, at least the More portrayed in Robert Bolt's wonderful play and film, "A Man for All Seasons," Shaffer and Hauerwas find a lawyer whose hope was founded on skill and whose skill gave him hope. I think we see something of a similar sort in Harper Lee's portrayal of Atticus Finch in To Kill a Mockingbird.
No surprise follows the news, that law students, like Hippocrates, pursue an education that develops their cleverness. It might take a more sustained argument to convince the world that we often hold a conflicting desire to live a life of wisdom. We students and teachers and practitioners of law secretly want to be wise as well as clever. Like D.T. Jones, we care more about "lost causes" and "trampled liberties" than we are sometimes willing to confess. The problem for the student, and for their teachers, and for legal education as an institution, is that we are more engaged (and adept) in teaching cleverness than in thinking, talking, and teaching wisdom.
We know that cleverness can get the best of us. When it does, we forget that the moral justification for cleverness in lawyering is survival (using our street smarts) and wisdom. Cleverness divorced from wisdom is not a pretty thing to behold. The vulnerability of cleverness absent wisdom is revealed when a student of law is asked to address the moral worthiness of a professional life in which their services are put to use by the highest bidder, serving those who can best pay for the employment of cleverness. The student says, without hesitation, but with assurance that their rhetoric has institutional support: "I will do whatever the client wants so long as it is legal and does not violate the rules of professional ethics. So long as it is legal, my conscience is clear." One might wonder whether this handy, convenient, moral prescription — I do for clients whatever the law allows — is not an instance of one who has, in becoming a lawyer, learned to be clever rather than wise.
The law student knows well that neither law nor rules of professional ethics provide authoritative moral guidance on whether a lawyer should (or can) be held morally accountable for the havoc that a client can visit upon a community. The law student knows that while law reflects morality it is not a substitute for it. Law may promote social order, and there can be no social order that does not, of itself, prescribe a moral order, but no law student, given a moment's reflection, will argue that law provides the moral ballast necessary for wise social policy or individual action.
Law students, like Hippocrates in seeking out Protagoras, eagerly take up the arts of clever speaking. The problem, as Socrates brings Hippocrates around to see it, is that Hippocrates hasn't given the first thought to the teacher or the teaching he so willing entrusts his mind. When a young man or woman like Hippocrates goes off to law school there is little thought to what might happen to a mind fed a constant diet of legal-shaped cleverness.
There was a saying in Kentucky told me as a child: "Don't get too clever for your own good." Like most virtues, cleverness is always in danger of turning on itself, of undoing itself as a virtuous street "smartness" that helps one to navigate a difficult world. If in the rush to lawyering and clever speaking, we let a virtue like cleverness get split off from wisdom, this professional virtue becomes a vice.
<1> Robert Pirsig, in Zen and the Art of Motorcycle Maintenance (New York: William Morrow & Company, 1974) argues that we should rethink our view of the sophists.
<2> If anyone requests my services in devising a canon of required reading for law students (a remote possibility), I nominate Plato's Protagoras and Gorgias, two ancient texts still worthy of attention and careful reading.
<3> Socrates and his doubt about the teaching of virtue is still the subject of debate in legal education legal circles although we are unlikely to identify the historical antecedents of the debate.
<4> The Hauerwas and Shaffer exploration of Sir Thomas More and the source of his hope can be found in, Stanley Hauerwas and Thomas Shaffer, Hope in the Life of Sir Thomas More, 54 Notre Dame Law. 569 (1979). The basic text for their commentary was Robert Bolt's magnificent play, A Man for All Seasons (New York: Vintage Books, 1962).
<5> The great American fictional lawyer, Atticus Finch is the protagonist in Harper Lee's To Kill a Mockingbird (New York: Popular Library, 1962). See generally, Thomas L. Shaffer, The Moral Theology of Atticus Finch, 42 U. Pitts. L. Rev. 181 (1981). Legal educators are now beginning to pay attention to To Kill a Mockingbird and the story of Atticus Finch. See, Symposium: To Kill a Mockingbird, 45 Ala. L. Rev. 389-584 (1994). And yes, there are naysayers, see, Monroe Freedman, "Atticus Finch, Esq., R.I.P.," Legal Times, February 24, 1992; Monroe Freedman, "Finch: The Lawyer Mythologized," Legal Times, May 18, 1992; Monroe Freedman, Atticus Finch — Right and Wrong, 45 Ala. L. Rev. 473 (1994).
<6> For an exploration of the proposition that
lawyers misunderstand the requirements of "zealousness" in
their representation of clients, see James R. Elkins, The Moral Labyrinth
of Zealous Advocacy, 21 Cap. U. L. Rev. 735 (1992).