MARX NOT MADISON: THE CRISIS OF AMERICAN LEGAL EDUCATION by Martha Rice Martini. Lanham: University Press of America, 1997. 172 pp. 

Reviewed by Daniel Hoffman, Department of Political Science, Johnson C. Smith University
 

This brief (95 pages of text) and remarkable book has its virtues. In style, it is well written and, except for the metaphysical passages, clear and straightforward. In substance, the historical portions, dealing with legal education and with jurisprudential thought respectively, are carefully researched and very informative.

Beneath its scholastic trappings, however, the major thrust of the book is an extremely passionate critique of contemporary legal education in this country. Martha Rice Martini argues that law schools are largely responsible, both normatively and empirically, for shaping the values and character of America's governing elites.

Disastrously, the current system of legal education imparts only technical skills and Marxist and/or nihilist values, rather than those upon which this country was founded. The result is a national drift toward socialism and/or chaos. The solution to this crisis is a return to the Founders' principles of natural law, respect for a social hierarchy based on moral virtue, and the sort of classics-centered legal training that the Founders advocated.

Martini gives far more space and care to the normative than to the empirical aspects of her case. The latter consists partly of an account of her own experience at Boston College Law School, augmented by interviews elsewhere (though interviewees are not quoted to any extent), and partly of an overview of some writings of the Critical Legal Studies movement.

Some of Martini's disappointments and frustrations with law school remind me strongly of my own. In particular, her claim that law schools implicitly teach that "winning is everything," while using ridicule to effectively suppress inquiry into foundational philosophical and political questions, is perfectly consistent with my own experience. Thus, even though her evidence is essentially anecdotal, I have no quarrel with Martini's claims that law school training can be brutal, corrupting, and also in a sense profoundly doctrinaire despite frequent professions of political and philosophical neutrality. (In my day, conservative decisions were "craftsmanlike" and liberal ones "result-oriented.")

For her assertions that law teaching is profoundly influential on the students' thinking and, what is more, on the subsequent governance of our society, however, Martini provides no direct evidence whatever. In fact, Martini makes it perfectly clear that she, for one, was only offended and not the least bit persuaded by the indoctrination her law professors inflicted upon her.

Stories are one thing and interpretations another. Martini is sorely mistaken in her assessment of what law teachers teach and why they teach it. Remarkably, she appears not to have noticed any significant differences among her teachers in either guiding values or teaching style. Her thesis that Marxists have taken over the academy and socialists in turn the country is downright remarkable. It is as if George McGovern were our President, Thurgood Marshall were the Court's most conservative jurist, and "liberal" had not become a dirty word.

Not only has Martini failed to notice what actually goes on in Washington these days, she has misunderstood much of what she has read and experienced. It would seem that, before entering law school, Martini was already captive to an ideology that successfully immunized her to its baleful influences. Thus she 1) failed to notice how few law professors are engaged in the Critical Legal Studies movement and how little [especially lasting] influence they have; 2) failed to appreciate the diversity of CLS thought and the subordinate place of Marxist ideas therein--let alone in the "real world;" 3) failed to appreciate that it is CLS, almost alone in the legal academy, that shares her moral earnestness and urgency; and 4) failed to notice the confusions and contradictions involved in her labelings and analysis of the ostensibly regnant ideology. (It has no values; it has evil values. It fails to be neutral and tolerant; it is hideously neutral and tolerant. CLS radically critiques the regnant ideology; it is essentially the same.)

A far more plausible analysis is that today's law school (and this has been true for a long, long time) is organized, staffed, funded, and used for recruitment by the world of business. Its materialist agenda is economic, not metaphysical, and by no means Marxist. "Don't think; study the regs!" as my wonderful Dean put it. Help us make money, and you'll make money. Help us keep power, and you'll get power. And that's all you need to know.

If Martini's ideology has distorted her perceptions of the world, it has even more powerfully shaped her normative critique. Her premise is that the search for goodness and justice depends on access to absolute, objective Truth (i.e., natural law). Without knowledge of the Good, we cannot grasp what law is: the idea of good law, she claims, is logically prior to that of law itself. Hence any approach that denies or evades this premise (or advocates the wrong conception of the Good) is evil. In abandoning natural law and Reason for relativism and passion, we lose everything worth living for.

Martini does not notice that, by declaring the idea of unjust law illogical a priori, she succumbs to the very positivism she wished to refute. CLS "nihilism," in contrast, somehow retains a critical thrust that her approach lacks.

So thorough, it appears, is Martini's hatred for modernity ("the Enlightenment") that she sees no major difference between its warring offshoots. The gigantic political and military struggles of our century were seemingly all in vain, because no party was in possession of the objective truths of natural law. On the spiritual plane, totalitarianism is but another form of chaos: either we have the Truth, or we do not. Both liberals and totalitarians were unforgivably skeptical, nihilistic, unprincipled; they indulged in passions rather than Reason. They did not rigorously adhere to the only path to a decent, sane human existence--namely, the original meaning of the Ten Commandments! We have lost our roots. To escape our modern plight, we must read the Constitution and study the Framers' intent, not just modern (re)interpretations. We must follow Aristotle, Washington, Madison, and Jefferson, reclaiming our true human nature and our People's genuine, original will. (What matter that all of these men condoned slavery? What matter that the original meaning of the adultery clause of the Ten Commandments was death for adulterous women, no punishment for adulterous men? The original intent is the only stable, reliable intent.) Martini claims familiarity with the debates on originalism as an interpretive method. Her references, however, do not go much beyond opposing fragments by Brennan and Bork.

Martini emphatically rejects the modern, cynical jurisprudence of Holmes in favor of Blackstone's traditionalist approach. (She sees Holmes as the Antichrist. In my law school, though, his opinions were never mentioned except to trash them.) Of the newfangled "radical" egalitarianisms of Hobbes and Rawls she has nothing good to say. Her only serious hesitation is between Aristotle's and Aquinas's approaches to natural law. Leery for some reason of Aquinas's "supernatural" beliefs, she tentatively opts instead for Aristotle's "purer" approach to "a substance eternal and immovable and separate from sensible things." (To more recent investigations of "moral realism," Martini pays no attention.)

Since Martini is explicitly relying on the Ten Commandments for inspiration, one wonders about her squeamishness here. Her acknowledgments, moreover, refer to the "warm support of Justice Antonin Scalia." Since there in fact may well be a majority on the current Supreme Court who believe that our Constitution is that of a "Christian country," she might as well have rested her argument on the theories of Aquinas (who is as close to Madison as Hobbes is to Rawls).

In short, this book is worth reading as a case study if one wishes to see how the Right can be at once both ascendant and paranoid, dogmatic and incoherent; or how law school can disturb someone who craves truth and justice rather than money and power. As critique and manifesto, however, it embarrasses.

Altman, CRITICAL LEGAL STUDIES: A LIBERAL CRITIQUE

Barber, THE CONSTITUTION OF JUDICIAL POWER

Dworkin, LAW'S EMPIRE

Kahlenberg, BROKEN CONTRACT

Sunstein, THE PARTIAL CONSTITU-TION