I am fascinated with Stephen Sheppard’s essay on Cicero and the modern American lawyer. In a sense, he is calling me back to those ideals I held so dear as an entering one-L a long time ago.
Cicero, it is not too strong to say this, is one of the reasons I went to law school. I was a Latin and classics major in college and immersed myself for whole semesters in his Philippics, his Verrines, and his treatises De Legibus and De Officiis (Latin please, not English). His stirring call to Romans to resist the tyranny of Marc Antony (so prominent in the Philippics, his last great set of political speeches) fairly echoed in my ears when I made my application (it was my last undergraduate class).
So, what has become of Cicero, the heroic lawyer? Our elite culture, our academic culture, is one that no longer appreciates the mythic dimensions of human greatness. Those grand old German theorists have assured us of that.
Max Weber wrote about the disenchantment (Entzauberung) of the West. Institutions have become faceless, soulless bureaucracies. Cicero, Virgil, and their contemporaries once stirred the hearts of Romans by appealing to their pietas — selfless devotion to the public good. Pietas — the word meant “respect,” “deference,” “sublimation.” It was the duty Roman children owed their parents, it was the obligation adult Romans owed the gods, and its scope was extended to include the res publica.
There is a recurrent impulse to translate res publica as “state.” Its most literal meaning, however, is “public affairs.” The way res publica is commonly rendered in English, without needing more evidence, is evidence of our own disenchantment.
And then there is Rudolf Bultmann and his method of “demythologization” (Entmythologisierung). A faithful Lutheran, he aimed at achieving true historical knowledge of the Gospels by dissecting them, identifying their sources, stripping away the miraculous, and seeing what survived. We now have a much clearer anatomy than we once possessed of early Christianity, but at the price of mystery.
I have made use of both Weber’s and Bultmann’s scholarship in my own scholarship. Indeed, I have written with qualified approval of Max Weber in other contexts. My appreciation for institutions is deeper, my historical knowledge enriched as a result of their work, and my soul, at least I hope, has not so far been lost.
But it is also true that such methods contribute to a hyper-critical culture that strips away the heroic aspects of the past. We have seen this with Cicero’s reputation. He was once regarded as a hero, as Stephen Sheppard points out. But scholars know now that he was a very political animal. As a senator, he served the interests of the aristocratic class. He despised the class of artisans. Watch them, fear them, he warned in his De Officiis. They are the likeliest to throw their support to demagogues — think of Tiberius Gracchus or Marius historically, or Caesar. They do not know their place. His conduct in the Catilinarian Conspiracy was not above reproach. He had five of the conspirators condemned by the Senate without a trial, and when it seemed others might gain their freedom, he instructed that they be strangled in prison.
Cicero was not always the great disinterested servant of justice. Still, he has valuable things to say to the practice of law today. I shall speak to that, but I would like first to comment briefly on the obstacles facing the Ciceronian lawyer in today’s legal profession.
Sheppard points to a number of shifts within the legal profession — the demise of the country lawyer, the rise of urban professionals, and the anonymity and pressures that come with that.
I would add to his list. The economics of the practice of law have changed. Take first the large firm. Large firms once provided partners at least, though not associates, with the time to think and reflect. I can point to books written in long ago days by partners in firms. Indeed, back in the 1990s, I wrote an introduction to the republication of one such text by the Liberty Fund — John Maxcy Zane’s The Story of Law. The economics of high-end practice gave learned lawyers the opportunity to aspire to Ciceronian greatness.
But now even the big firms are dominated by the mantra of the maximization of profits. Lawyers need books of business. They need billable hours. What senior partner in a large firm today could find the time to author a work as dense, complex, and entertaining as Zane’s history of western law? And if the relentless push for profits dominates the top end of the profession, life in the nether reaches of the law has become unbearable. It is there where we meet the contract lawyers, working from one document-review project to the next, with little security, little in the way of benefits, and large student-loan debts to service.
Still, the Ciceronian message speaks to us. It does so in two ways. First, there is his call to a life of virtue. A close inspection of the details of his life reveals that Cicero did not always attain the high ideals he set for himself and for others. But the difficulty of achieving perfection should not deter us from the quest.
And there are two virtues that Cicero celebrated, which the modern lawyer can take to heart — officium and pietas — “Duty” and “Respect” or “Sublimation.” Cicero’s De Officiis was one of those texts I read back in college that still speaks to me today. “Duty,” that was Cicero’s first principle. We must look to the needs of others first, not our own. And the duties of the lawyer engaged in public life, as Cicero was, included integrity, public service, and fair dealing. Whatever the circumstances of our existence, we should and can strive to meet these ideals. And, secondly, pietas. I find this word so rich as to be almost untranslatable. Still, I like the idea of sublimation. We must know, as lawyers, that we serve not our interests, but those of our clients. We must know that the good of justice takes priority over our petty private concerns.
But there is yet a final element of Cicero’s life that I encourage our students to emulate, and that is participation in public life. And I am proud to say that many of my students have done so. For a new law school, the University of St. Thomas has seen a pleasantly surprising number of students choose a life in the arena.
This is service to the res publica. This is what Cicero did best. He combined greatness as an orator and an advocate, with greatness in the service of the public good. And lawyers, of every rank and station, can still aspire to that.
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