Paul L. Caron
Dean


Sunday, July 14, 2019

Lawyers Serving Gods, Visible And Invisible

Jonathan R. Cohen (Florida), Lawyers Serving Gods, Visible and Invisible, 53 Gonz. L. Rev. 187 (2017):

Abstract. A critique of the American legal profession can be framed through the metaphor of idolatry, specifically the proclivity of lawyers to serve visible rather than invisible interests in their work. This proclivity has ramifications ranging from broad matters like lawyers' responses to deeply embedded social injustices to specific matters such as the excessive focus on pecuniary interests in ordinary legal representation and the high level of dissatisfaction that many lawyers experience in their careers. Using as a lens biblical teaching concerning idolatry, this article begins by describing "visible" as opposed to "invisible" interests in the context of legal practice. It then argues that lawyers, clients, and ultimately society could benefit from lawyers paying greater attention to invisible interests.

Introduction. Religious ideas can sometimes offer a distinctive lens or vantage point for gazing upon ordinary life. For example, seeing a person as created "in God's image" may lead one to ask a different set of questions (e.g., is that person being treated with dignity?) and assert a different set of values (e.g., that human life is precious) than one might ask or assert without that religious metaphor. One need not, of course, invoke religious language to discuss subjects like human dignity and worth, but religious teachings can lend insights into them. Here I suggest that another fundamental religious teaching, namely the biblical prohibition against idolatry, provides a useful lens for critiquing the American legal profession. Akin to worshiping a visible rather than invisible God, many lawyers have a proclivity to focus on visible rather than invisible interests in their work. This proclivity has ramifications ranging from the "small" issue of low job satisfaction among lawyers, to the broader issue of the tendency of many lawyers to focus excessively on their clients' pecuniary rather than nonpecuniary interests, to the even broader issue of the failure of many lawyers to undertake the prophetic work of confronting deeply embedded social injustices.

To develop this argument, I work in two stages. First, I describe the biblical concept of idolatry and its development within Jewish tradition and what I mean by "visible" as opposed to "invisible" interests in the context of legal practice. In taking a Jewish approach to idolatry, I do not mean to suggest that Judaism is alone in its concern about idolatry-far from it. Christianity and Islam, to name but two other religions, have long banned idolatry, and many traditions, both Abrahamic and non-Abrahamic, have stressed the importance of the invisible. Rather, I approach this subject through Jewish lenses for that is the religious tradition that I know. Second, I turn to the specific topics mentioned above. From "small" matters such as attorneys' choices in their own careers to broad issues of social injustice, the metaphor of idolatry offers a useful lens for critiquing some foundational aspects of American legal practice.

Not all readers of this paper, of course, will be members of an Abrahamic faith, and certainly not all readers of this paper will be Jewish. Whatever one's background, I hope the ideas here will be of use. The critique of the American legal profession presented here does not rest upon being a member of a particular religious community or having a particular view of the Bible. Indeed, it is possible to write a critique of lawyers serving visible rather than invisible interests in their work without reference to religious literature at all. Yet, religious teachings are what have led me to form this critique, and, for me, religious language is helpful in articulating it. ...

Conclusion. The biblical prohibition against idolatry is ancient. The relevance of that prohibition for modem lawyers is not. Here I have argued that the biblical prohibition against idolatry provides a useful lens for critiquing the American legal profession. Whether it concerns the "small" issue of low job satisfaction among lawyers, the broader issue of the tendency of many lawyers to concentrate exclusively on particular interests like money and jail time when representing clients, or the even broader issue of the role of lawyers in confronting—or more often failing to confront—deeply embedded structural injustices, too often our profession focuses on visible factors and ignores invisible ones. By no means is this to claim that lawyers who do such things actually practice idolatry. Rather it is simply to assert that this biblical teaching offers a useful lens for better understanding our profession.

It is natural to think of the biblical prohibition against idolatry in negative terms, as a ban indicating what adherents were not allowed to do. But it can also be understood positively. Through rejecting the worship of idols, adherents began their unfolding journey of worshiping and following their invisible God. I believe that a positive framing applies here, too. The goal of this paper is not simply to criticize our profession's proclivity to focus on the visible, but to suggest that opportunities for foundational growth await our profession. Through greater attention to the invisible, lawyers could become happier people, their clients could be better served, and our broader society could be made more just. I hope that our profession seizes those opportunities.

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