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moral uplift of the individual members of society, and in which the use of legal compulsion is worse than futile.
Nevertheless, many who are enthused with the new ideas are prone to look askance upon what they call the individualistic system and are quite willing to do away with the constitutional restraints and the teachings and influence of the common law upon which such a system must rest. Relying upon the willingness of an inflamed majority to possess themselves of advantages over a minority, or the individual, they advocate remedies that tend toward confiscation.
Attempts made to carry out such ideas have, of course, startled the owners of property and capital to measures of defense and leading members of the Bar have ranged themselves in support of these measures. Indeed in the enormous material development, the services of the profession have been invoked and often to protect methods that were indefensible. The profession has suffered from not having that independence of clients, that the English barristers enjoy, in which the relation between the two is temporary and but for a single cause. Such a relation does not produce that widespread, popular impression of complete identity of the professional advocate and adviser with the client, especially the corporate client and all its interests and plans. For these reasons our profession at present is under suspicion of being subsidized by our relation to the property of our clients, and of not being able to discuss without prejudice the betterment of present conditions in society. Those who are advocating these reforms propose, therefore, in the future largely to dispense with lawyers, largely to dispense with constitutional restraints and to place their whole confidence in the direct action of the people, not only in the enactment of laws, not only in their execution and enforcement, but also in the judicial function of determining justice in individual cases. This hostility to our profession, while it is natural and can be explained, is unjust. We are as intelligent, generous, patriotic, self-sacrificing and sympathetic a class as there is in society. We are not opposed to progress, real progress. Moreover, we know how to do things, and in the end no successful legal step forward will be made
without our aid and shaping. We are far from lacking in a desire to improve social conditions. We recognize the inequalities existing between social classes in our communities, and agree to the necessity of new legal conceptions of their duties toward each other. But we have been driven by circumstances into an attitude of opposition. The proposals made for progress have been so radical, so entirely a departure from all the lessons of the past and so dangerous to what we regard as essential in preserving the inestimable social advances we have made since the Christian era, that we have been forced to protest. The result is that at present the militant social reformers and the lawyers are far apart. We don't talk exactly the same language. It is enough to answer our expressed opinions for them to say that we think and talk as lawyers.
What then is it necessary for us to do in this coming crisis; for it is a crisis in the life of courts and administration of justice. Many of the social reformers are oblivious of the lessons to be derived from experience in enforcement and operation of laws upon society. They do not realize the necessity for making the many different rules of law fit a system that shall work. They bring to the repair of a mechanism of interlocking parts, rude and unsuitable instruments. Nothing could more reflect upon their crude conception of judicial procedure than the proposition of a recall of judicial decisions. Social changes are not to be successfully made by a cataclysm, unless present conditions are as oppressive as those which caused the French Revolution. To be valuable they must come slowly and with deliberation. They are to be brought about by discriminating legislation proceeding on practical lines and construed by courts having an attitude of favor to the object in view.
I have spoken little to my purpose if I have not made clear the necessity for broadening much the qualification of the general body of our judiciary to meet the important and responsible requirements that the present crisis in our community has thrust upon them. Their coming duties call for a basic knowledge of general and sociological jurisprudence, an intimate familiarity with the law as a science, and with its history, an ability to
distinguish in it the fundamental from the casual, and constructive talent to enable them to reconcile the practical aspirations of social reformers with the priceless lessons of experience from the history of government and of law in practical operation. How can this be brought about? Only by broadening the knowledge and studies of the members of the legal profession. It is they who make the judges, who contribute to their education, and who help them to just, broad and safe conclusions.
What we lawyers need now is to rouse our profession to speak out. We must be heard in defense of the good there is in our present society and in pointing out the social injury which a retrograde step may involve. But we must also put ourselves more in touch with the present thinking of the people who are being led in foolish paths. We must study sociological jurisprudence. We must be able to understand the attitude of the sociological reformer. We must show our sympathy with every sincere effort to better things. What the people need in respect to this matter is light, and the profession engaged in administering law, and in promoting just judicial conclusions, must contribute their valuable assistance in giving it. In so far as the conditions in society are new, in so far as its needs are different from what they seemed to be at the time of the adoption of the constitution, or as they were recognized under the common law, embodied in a century of our judicial decisions, they should be studied by the profession. We should seek to know exactly what are the conditions that are sought to be remedied. We should be willing to meet them in seeking to remedy every condition that possible to remedy consistently with the maintenance of those principles that are essential to the pursuit of material progress and the consequent attainment of spiritual progress in society and to permanent popular and peaceful government of law.
The working of the problem presented is not the task of a year. It may require a generation or more. We must prepare our successors, the future American Bar, to meet the demand.
Every law school should require those who are to be admittedto its halls to have a general education furnishing a sufficiently broad foundation upon which to base a thorough legal education.
That general education ought to include a study of economics and a study of sociology and the curriculum of every law school should include a close study of the science of general and sociological jurisprudence as a basis for the study of the various branches of our law; and this raising of law school standards should meet a sympathetic response from Supreme Courts in requirements for admission to the Bar. Then the members of the Bar will come to the discussion of social remedies in courts, in the halls of Congress and in legislatures, and in appeals to the people, properly equipped, and will bring the controversy down to a practical issue and the fight can be fought out on a common ground. The valuable lessons of the past will be given proper weight and real and enduring social progress will be attained. We shall avoid, then, radical and impractical changes in law and government by which we might easily lose what we have gained in the struggle of mankind for better things.
LAW SCHOOLS AND BAR EXAMINATIONS.
EZRA R. THAYER,
DEAN OF HARVARD LAW SCHOOL, CAMBRIDGE, MASS.
I am supposed to speak to you today about Bar examinations and law schools. If in doing so I seem to exalt the function of the law school, or in any way to undervalue the practitioner, I hope you will believe that this is not due to unfamiliarity with practice. I have been trying to teach law for three years, and I have been learning chiefly the difficulty of the task and my own inadequacy to it. If any one says I do not know how to teach law I must humbly concede that he is very likely right. But I do know something about practice. I practised law nearly twenty years, in a general practice that took all my time and more; I was constantly occupied with litigation and was much in court; and what I say will at least not be based upon ignorance of that side of the profession.
I make no apology for the fact that my remarks will sound like an echo of what you have just heard. For it is a choice between echoing the last speaker's views and saying something less sound and pointed. We must have all been deeply impressed by what Mr. Taft said about the special need of a well educated Bar at the present time. We are now passing through something of a crisis. This is a time when there is no institution that is not called upon to justify itself. All that we can ask today for our most cherished principles is an opportunity to justify them. How can the Bar best meet this great task? Roscoe Pound has truly said that in these days when so much is said of conservation there is no conservation more important than the conservation of legal and political institutions. But the question at once comes up, Which are to be preserved? It is the