This will be my last post as a guest blogger. Many thanks to Mark and Marc for allowing me this opportunity to share some thoughts and to the many readers who contributed comments, e-mailed me offline, or just read. I’m now back to my day job saving monopolists not from their sins but from treble damage judgments.
Since I haven’t been able to stir up any controversy by asking how Jesus would rule on same-sex marriage or why evangelicals are underrepresented at elite law schools, I thought I might go out with a bang by asking whether skeptics—atheists, agnostics, and others skeptical about religious devotion and belief—generally make better lawyers than do people of faith. And, in case the reader assumes that any post on a law and religion blog must necessary answer this question with a self-righteous snort, please be assured that I mean it quite seriously.
The question has lingered uncomfortably in my mind for a long time. Back in June of 2005, when I was an untenured faculty member at Cardozo Law School (which is part of Yeshiva University, an Orthodox Jewish institution), my then dean, David Rudenstine, gave a provocative address to group of 200 undergraduate counselors from northeastern universities in which he seemingly questioned whether people of faith could make good law students or lawyers. David argued: “Faith challenges the underpinnings of legal education . . . . Faith is a willingness to accept belief in things for which we have no evidence, or which runs counter to evidence we have. Faith does not tolerate opposing views, does not acknowledge inconvenient facts. Law schools stand in fundamental opposition to this.”
That story is old and was widely discussed at the time, and I don’t mean to use this as an occasion to pick on David Rudenstine, whom I have always known to be fair-minded, ethical, and generous. It’s just that I’ve often wondered whether David had at least half a point.
In an earlier post. I mentioned an online survey of students at an elite law school that suggested that evangelical Protestants might be underrepresented compared to their national demographic figures. The same survey (and please see all caveats from last time about its informality) suggested that atheists and agnostics might be very significantly overrepresented compared to their national demographic figures. According to Pew Forum data, people who identify as atheist or agnostic account for about 4% of all respondents nationally and about 7% of respondents in the 18-29 age cohort. Skeptics are well educated overall, claiming 8% of all post-graduate diplomas (basically doubling their base 4% share). In the law student survey, they accounted for a whopping 28% of all respondents, more than all Protestant categories (evangelical, mainline, and traditionally African-American) combined.
The case that skeptics have the edge in the legal profession seems easy to make. Lawyers are trained to be skeptical, to question everything and believe nothing, to assert that all positions are tentative and relative. A lawyer must be ready to argue either side of any dispute, suspending her personal views to advance the interests of her client. This sort of fluid intellectual role-playing is hard to square with a dogged conviction in a single vision of the truth.
This is not to say that anyone who identifies with a religion is necessarily disadvantaged in the legal profession. But it does suggest that the legal profession will select for the religious traditions that are most open to skepticism and for religious adherents who are the most iconoclastic within their respective traditions. Jewish law students far outperformed their national market share in the law student survey (2% nationally compared to 10% in the survey), and it’s my sense that Judaism has a long history of encouraging internal debate.
So far so good for the claim that skeptics, or at least skepticism, makes for lawyerly success. But, being a skeptical lawyer myself and hence necessarily seeing both sides of every issue, I need to ask whether there isn’t also a sense in which religious skeptics might face some disadvantages in the study and practice of law. They might.
One of the things that has most amused me in my years as a law professor is how so many of my colleagues and students seem mystified at the persistence of various ritualistic and formalistic aspects of law. They just can’t understand why the legal system continues to employ all manner of fictions, incantations, rites, dogmas, and formalities that serve only to hinder the scientific pursuit of human wellbeing. What my skeptical students and colleagues are missing is that these legal rituals are bound up in the same impulses that undergird religion. The legal system exhibits aspects of human psychology, emotion, and experience that are bound up in metaphysical yearnings for the divine and the transcendent. This will continue so long as law is produced by men and not computers. A successful lawyer must not only understand these impulses but channel them.
Take, for example, the ongoing debates over textualist and “plain meaning” approaches to interpreting written instruments—constitutions, statutes, regulations, contracts, wills, etc. Years ago the legal realists showed—or thought they showed—that texts do not have an objective meaning and, hence, that textualist searches for an objective meaning were inherently misguided. Yet textualism is arguably more entrenched as an interpretive methodology today than it was at the heyday of legal realism. One of the contributing factors is an abiding cultural reverence for the inherent—some would say primitive—power of written texts. Whether this reverence is caused historically by the primacy of written texts in Western religious traditions or instead emanates from some deeper aspect of human psychology that creates a demand for textualism in both law and religion is an open question. But it does seem that those who begin law school connected to textual reverence and related exegetical methods may have a leg up.
There are many other ways in which religion—not just intellectual knowledge about religious history and dogmas but a religious mindset—could prove useful in the study and practice of law. Think, for example, of legal skills as far flung as mastering jury psychology, crafting the poetic cadences of a sensational appellate brief, and inducing several hundred egotistical lawyers to sacrifice for the good of a law firm partnership. A religious persuasion isn’t essential to these skills, but it could often come in useful.
In conclusion, I remain convinced that my old dean had half a point—but only half a point. Skeptics are naturally drawn to law and enjoy some clear advantages. It’s just that the law naturally attracts certain religious personalities as well and offers them their own advantages. In the end . . . well, why do I have to commit myself to anything? I’m a lawyer, after all.