The Jurist

The Jurist (1566), Giuseppe Arcimboldo

‍Hatred for lawyers is the perennial bigotry that everyone talks about. Everyone knows Dick the Butcher’s line from Henry VI even if they can’t name the play or character. There’s a whole Wikipedia entry dedicated to “Lawyer joke” and Shakespeare’s is the first one. Jokes about eradicating lawyers—whether by driving a bus off a cliff or some other means—are at least as old as the sixteenth century. It is hard to find a time in history where lawyers were beloved even by themselves. Matthew Hale himself thought the whole profession was barbarous and said as much.

Predictably, Martin Luther, who, like several of the Reformers, abandoned a career in law, had plenty of entertaining things to say about lawyers. Luther’s most notorious and pithy quips on the topic including, “Of the Gospel, jurists know nothing, and therefore they are justly excluded from the circuit of divinity.” And “Every jurist is either a good-for-nothing or a know-nothing.” Or, terser still: “Jurists are bad Christians.” But, as with his critique of Aristotle, Luther’s seemingly sweeping comments contained a narrower intent. In John Witte’s Law and Protestantism, it becomes clear that Luther’s real target was canon lawyers and those members of the law faculty at Wittenberg who still taught papal pronouncements. Luther’s more general complaint was what most people complained of: sophistical jurisprudence and huckster attorneys.

The Renaissance was the golden age of this favorite pastime of criticizing and lampooning lawyers (the most famous satirist being Boccaccio). As humanists rediscovered images and texts of antiquity (Cicero, Ulpian, etc.), the contrast between the ancient, virtuous jurisconsul and modern lawyers was too stark to ignore, especially when so many of the ills of a crumbling Christendom could be laid at their feet. The basic complaint was that while legal resolutions were attainable, true justice and equity were not, and this by design of corrupt lawyers, most of them bought and paid for and lacking all sense of public spiritedness or civic virtue. Petrarch’s description of the utter state of the law profession is worth quoting in full. Whereas in ages past, law had been a house of eloquence, excellence, and public good, now it was a den of thieves and pimps.

“[The lawyer’s of our day] either do not understand or distort the laws recorded by our ancestors with such seriousness of mind or agility of intellect, and they dishonor justice, cultivated by our ancestors with so much passion. What a marketable piece of merchandise they have made of it [i.e. law]. Their tongue, their hand and mind and breath and glory and honor, their time and pledge of friendship, finally absolutely everything is for sale, and at no more cost than is fair. What a disproportion between the old and the new times or manners! The men of old armed justice with sacred laws while these men prostitute it, disarmed and stripped bare; truth was valued among the men of old, but fraud among the moderns; the men of old gave trusty and unshakable replies to the nations, the moderns nourish their lawsuits with tricks and petty cheating, and long to become immortal by the very tricks they are called upon to demolish with the spearhead of the law. Need I waste more words on this subject?”

‍Petrarch goes on to lament that anyone who attempted to be a pure, true jurist within this dark profession would be ridiculed and would otherwise, being thus considered too naive, would find little success. Plus, who would train such a jurist? Legal education had become little more than “talkative ignorance.”

‍Summarizing Petrarch’s assessment, James Hankins adds that “The deeper problem was that contemporary life was too dependent on an impoverished notion of legality, on mere observance of rules.” True fairness (ius) suffered as a result of a formalism that could be easily twisted by corrupt lawyers and rulers alike. There is something idolatrous about rigid formalism; it pretends to divinity. The pure righteousness and justice of God, the eternal law, is universal and immutable. It is unresponsive to any urging outside the divine essence; it is not vulnerable to circumstance or necessity. But human law and human justice are not like this. Albeit, human justice must reflect and agree to higher law, it is responsive to changing circumstances—differences of time, place, and manner. The pursuit of equity does not permit rigidity. The formalism complained of by Petrarch—the impoverished, slavish notion of legality—not only precluded fairness in many circumstances but also facilitated corruption. It is easier for wicked men to manipulate rules when mere legality is the sole aim of a legal regime. The same maneuver is much harder where a proper sense of ius undergirds and governs the received rules.    

‍ Lawyer jokes, at least for men like Petrarch, were a form of gallows humor. Laugh or else despair. Lawyers (and former lawyers) of humanist persuasion and learning joined in to pacify their own shame. But not all of them were as depressed as Petrarch who longed for solitude and escape from society. Again, bemoaning the legal profession goes back even to antiquity. Cicero, the favorite of humanists, had little nice to say. And yet, within the same period, a vision of the perfect jurist was elevated.

‍ As much bad as he had to say about modern lawyer, Petrarch considered the ancient jurists to be among the founders of the humanities. They were a sacred order and exemplary orators. Indeed, as Donald Kelly notes, Renaissance men began to refer to jurisprudence as true philosophy. The ideal type was in the mode of Justinian. The perfect jurist was a pious Christian and a virtuous patriot.

‍ But he was also a true humanist—a scholar, a generalist. Jurisprudence, after all, must comprehend all of human life. More important, perhaps, to the humanist ideal was that the perfect jurist was the fullest version of political man, an active man. He was the philosopher in action embarking on the search for justice (and the public good) like the philosopher but in real time. To paraphrase Philip Melanchthon, the true philosopher is the one that makes knowledge useful to others and most especially to the commonwealth.

‍And thus, we get in the sixteenth and seventeenth centuries, mirror for lawyers literature, just as there had been mirrors for magistrates and courtiers or knights (and merchants) books. That is, instruction manuals on how to think about law properly, but also on how to comport oneself as a lawyer. The humanist emphasis was always on the quality of the man, the reformation of morals. Indeed, humanism in its civic aspect can be understood as a movement to reinject political elites with virtue and, by extension, rejuvenate society.

‍The character of the jurist is virtuous, and his highest vocation is that of interpreter of law, a doctor and priest of the law. He is an exegete. These titles indicate his approach to interpretation itself. Interpreters are never passive; they always make decisions guided by other motives. The recent dust up over modern translations of Homer illustrates the point. There are degrees of faithfulness to the text but, as even with Biblical translation and exegesis, translators and interpreters exercise judgment.

‍In the divide between restrictive and extensive interpretation, Kelly explains, the perfect jurist always sought to draw out the life-giving spirit of the law rather than dole out the deadening letter. At bottom, the latter is what Petrarch and other humanists hated. Justice, equity, fairness can only be found in the spirit (or reason) behind or within, but also beyond, the letter. This was often expressed in Aristotelian causality. If the efficient cause of the law was the source of authority (i.e., the lawgiver), the formal cause was society, the material cause was the life of the citizens, and the final cause was the public good.

‍Hence, the maxim that the good of the people is the supreme law. The north star of true interpretation is fairness and the public good, but the course of the perfect jurist must be responsive to rough seas, shifting winds, and dangerous shoals. A cloistered reader of the rules cannot captain this voyage; only an experienced public man, the public philosopher, the perfect jurist can. All lawyers, regardless of their practice or client base, are public persons. They cannot remain in the arena of pure reason constructing rules and regulations in the abstract. They have to make practical judgments about real life. They live in the realm of prudence. However they navigate established procedural standards and precedents, their aim should not be formal legality as such but true jurisprudence.