A Summary Reflection on Legal Education
| Author | Robert A. Pascal |
| Position | Professor of Law Emeritus, Louisiana State University |
| Pages | 125-138 |
Page 125
A Summary Reflection on Legal Education is the fruit1 of decades of reflection by a very unique scholar whose life covered most of the twentieth century and who is still active in the twenty-first. Professor Emeritus Robert A. Pascal started his academic career at the time of Roscoe Pound, whom he witnessed inaugurating the LSU Law Building in 1938.2 He then was a law student at the Loyola Law School in New Orleans and served during the summer as a Research Assistant at LSU. He published his first article in the first issue of the Louisiana Law Review, also seventy years ago.3Robert Pascal conversed with some of the great pioneers of comparative legal studies, such as Ernst Rabel, John P. Dawson, and Hessel Yntema in Ann Arbor, Max Rheinstein in Chicago, Gino Gorla in Rome, and René David in Paris. He is far too modest to accept being portrayed as a living legend but may accept being referred to as a living memory: few law schools having reached their centennial, like LSU in 2006, can claim to have within their walls a faculty member who has been on Earth nearly as long as the law school. In addition, he started working with the Louisiana State Law Institute during the first year of its creation, working on the Compiled Edition of the Louisiana Civil Codes. He later became a consultant on trust law revision, an area of jurisprudence where his thoughts are at the forefront.4 He also taught and producedPage 126 significant work on conflict of laws,5 family law,6 matrimonial regimes,7 civil and Anglo-American legal science,8 and philosophy of law.9
In 1940, he was the first person ever to be awarded a Master's degree in Civil Law at LSU. He practiced law in New Orleans for one year, and in 1942, added an LL.M. from the University of Michigan Law School. During World War II, he was commissioned in the United States Coast Guard Reserve for anti-submarine warfare, but most of his service was as Coast Guard District Legal Officer for the 10th Naval District (the Caribbean). At the end of the war, he joined the LSU law faculty. In spring 1951, he taught trusts law at the University of Chicago. In 1951-1952 and in 1963-1964, he was a Fulbright lecturer and taught U.S. private law and comparative law at the University of Rome, in Italian.10 In 1955, hePage 127 was made full professor at LSU and never left the Law School even after his retirement in 1980, keeping offices as a Professor Emeritus. In this year of the Bicentennial of the Louisiana Civil Code, many remember his tournament11 with a professor from Tulane, Professor Pascal rightly insisting that the Digest of 180812 was Spanish in substance and French in form-a "Spanish girl in French dress," as he later commented in his Tucker Lecture at LSU.13
The author of this Foreword has the privilege of meeting and exchanging views with Professor Pascal on a daily basis. He read this Summary Reflection more than two years before publication, as it was still in the making. He quickly decided to offer it to his first year law students at LSU as an opening to the Legal Traditions class. In his Summary Reflection, Professor Pascal makes his vision of the law very clear. He sees the law as legal order, mankind as a community of men under God, with the ontological (moral) obligation to respect and cooperate with one another. His comment on the secularization of law and science in the past five hundred years is connected to the evolution of religious thought, and while this may be found disturbing by some, it reflects the findings of philosophers, theologians, and historians of western societies.14
His strong preference for the civil law and its codification comes from the fact that it gives a comprehensive vision of what the law is and makes it accessible and predictable to lawyers, judges, and laymen. The writer of this Foreword, also a civilian by training, certainly agrees, yet remains a great admirer of the basic tenet of the English common law--"law is right reason"--and its ability to discover the law in a constant search of consistency through the facts of cases, always accepting, though reluctantly, that what was wrongly declared may later be overruled. The traditional approach of the common law, often to be distinguished from modern American and sometimes English practice, does not questionPage 128 Professor Pascal's recognition of fundamental principles, nor his belief that the law cannot be limited to what is termed positive law.
Some students who have read and discussed this Summary Reflection in the fall semesters of 2006 and 2007 reacted to the negative outlook that Professor Pascal projects on the present state of the legal profession. It comes as a salutary shock to prospective students at both ends of the spectrum, whether they view legal practice as a good money maker or come to law school with the ideal of serving the community and their fellow citizens.
With clear and precise strokes, Robert Pascal depicts the huge, often neglected impact legal education has on the shaping of a legal system and the way it operates showing how the case method, if made the exclusive tool of legal education, drifts the thoughts away from principles and prevents students from developing an overall view of what the law is or ought to be. Robert Pascal believes that one should not be allowed to become a lawyer without a solid liberal education.15 A study of what the purpose of the law is and its moral foundations, whether one calls it legal theory, philosophy, or jurisprudence, ought to have its place before or at the beginning of the legal curriculum, so that future practitioners are made aware that the law is much more than an artifact serving sometimes purely materialistic interests. Rights may not be considered without a careful analysis of corresponding obligations. Throughout his teaching career, Professor Pascal reminded his students, citing Ulpian and Justinian, that legal professionals are "priests of right order."
Whether one agrees or not to this basic tenet and to other points made in the Summary Reflection, it triggers discussion and reflection and, most importantly, invites one to put the essential (by nature the less visible) at the front door of legal studies, hoping it will inspire legal practice and law making.16 It comes at a time when the topic of legal education moves to the forefront of legal scholarship, at a moment when the law school that has led America into the case method revises its curriculum. May this publication prove that what some describe as voices of the past are most useful beacons of human progress: this is a future oriented reflection.
Page 129
Disrespect for the legal order has become endemic. In general, both its professionals and the public at large manifest it. Lawyers often seek to manipulate the law to serve clients' purposes, whether or not the result is consistent with the order it projects, regarding their practice more as a power service for those who can pay their exorbitant fees than as a profession at the service of good order. Indeed, for many in the public at large and for many professionals, the very notion of law as a plan of order to be respected, honored, and obeyed is considered an infringement on individual freedom (and, recently, privacy). Clients demand lawyer delinquency for selfish reasons and, at the same time, knowing their champions to be willing delinquents, distrust them. Elected judges are suspected of being inclined to favor persons represented by attorneys who have contributed to their campaigns for election. Appointed judges are expected to interpret and apply the law in terms of the political, economic, religious, and philosophical views of those who control their appointments. Legislators are believed to be influenced unduly by the generous offerings of lobbyists and to vote their benefactors' or constituents' wishes even if they know them to be contrary to the common good. Practicing lawyers serving as members of law reform groups have been known to sponsor their clients' selfish interests rather than the general good.
For most persons, lawyers, judges, legislators, and the public, law is the instrument of power par excellence. Justice, equality, fairness, and the common good often are ignored, though the rhetoric in use pretends they are of concern. The degree of selfishness dominating the practice of law can be judged by the enormity of the fees charged, the relatively little attention given those unable to pay them, and the manner in which established law firms mistreat their young associates, requiring so many hours of effort from them that often they must leave home before their children awake and return home after they have fallen asleep.
Shamefully, legal education in the United States has contributed, and continues to contribute, to this societal disaster. Law schools have not demanded that the would-be law student have an education in which he has been asked to ponder what it means to be...
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