Denver labor bulletin., 1917-08-11
THE LIVING LAW
By LOUIS D. BRANDEIS.

business and Worklngmen instead OF
lawyers. Aud business men have been
active in devising other means of es-
cape from the domain of the courts,
as is evidenced by the widespread ten
dency to arbitrate controversies thru
committees of business organizations.
The remedy so sought is not ade-
quate, and may prove mischievous
one. What we need is not to displace
the courts; not to displace the lawyer,
but to fit him for his official or judicial
task. And, indeed, the task of fitting
the lawyer and the judge to perform
adequately the functions of harmonic
ing law with life is a task far easier
of accomplishment, with the necessary
qualifications.
| The training of the practising law
yer is that best adapted to develop
men not only for the exercise of strict
| ly judicial functions, but also for the
exercise of administrative functions,
quasi-judicial in character. 1t breeds
certain virile, compelling quality,
which tends to make the possessor
proof against the influence of either
fear or favor. 1t is this quality to
which the prevailing high standard of
honesty among our judges is due. And
it is certainly a noteworthy fact that
in spite of the abundant criticism of
our judicial system, the suggestion of
dishonesty is rare; and instances of
established dishonesty are extremely
few.
The pursuit of the legal profession
involves a happy combination of the
intellectual with the practical life.
The intellectual tends to breadth of
view; the practical to that realization
of limitations which are essential to
the wise conduct of life. Formerly the
lawyer secured breadth of view largely
thru wide professional experience. Be-
ing a general practitioner, he was
brought into contact with all phases
of contemporary life. His education
was not legal only; because his diver
sified clientage brought him, by the
mere practice of his profession, an
economic and social education. The
tended to make his practice diversified
not only in the character of matters
dealt with, but also in the character or
standing of his clients. For the same
lawyer was apt to serve at one time
or another both rich and poor, both
employer and employe. Furthermore
nearly every lawyer of ability took
some part in political life. Our great
est judges, Marshall, Kent, Story,
Shaw, had secured this training. Oil
yer, in his study of Alexander Hamil-
ton, pictured the value of such train
ing in public affairs: "In the vigor of
hope, he brought to the study of the
law character already trained and
tested by the realities of life, formed
by success, experienced in the facts
and disorders with which the law has
to deal. Before he began a study of
the remedies he had wide knowledge
of the conditions of human society.
With him the law was a reality, quick,
human, buxom and jolly, and not a
formula, pinched, stiff, banded and
dusty like royal mummy of Egypt"
Hamilton was an apostle of the living
law.
The last fifty years have wrought a
great change in professional life. In
dustrial development and the conse-
quent growth of cities have led to a
high degree of specialization-spec |
ization not only in the nature and class
of questions dealt with, but also spec
ialization in the character of clientage.
The term Corporation lawyer" is sig
nificant in this connection. The grow
ing intensity of professional life tend
ed also to discourage participation in |
public affairs, and thus the broadening
of view which comes from political
life was lost. The deepening of knowl-
edge in certain subjects was purchased
at the cost of vast areas of ignorance
and grave danger of resultant distor-
ton of judgment
The effect of this contraction of the
lawyers intimate relation to contem-
porary life was doubly serious; be-
cause it came at a time when the |
rapidity of our economic and social
transformation made accurate and
broad knowledge of present day prob
lens essential to the administration of
justice. "Lack of recent information"
says Matthew Arnold, ais responsible |
for more mistakes of judgment than
erroneous reasoning"
The judge came to the bench un-
equipped with the necessary knowl-
edge of economic and social science,
and his judgment suffered likewise
thru lack of equipment in the law
yers who presented the cases to him.
For judge rarely performs his func-
tions adequately unless the case before
him is adequately presented. Thus
were the blind led by the blind. 1t is
not surprising that under such condi-
tions the laws as administered failed
social demands.
We are powerless to restore the gen
eral practitioner and general partici-
patton in public life. Intense special
ization must continue. But we can
correct its distorting effects by broad
er education-by study undertaken
preparatory to practice-and continued
by lawyer and Judge thruout life;
study of economies and sociology and
politics which embody the facts and
present the problems of today. Every
beneficent change in legislation" Pro-
fessor Henderson said, "comes from
fresh study of social conditions and
social ends. and from such rejection of