How Can You Defend Those People? And Other Questions of Humanity, Humility, and the Humanities

[Music] good evening good evening ladies and gentlemen welcome distinguished guests I'm Ginny Morgan I'm the Dean of the law school while the university engages in an international search for a new dean and it's a pleasure to welcome you all to the 2017 Peter Bratt Memorial Lecture I would particularly like to acknowledge the presence of the Brett family and welcome our distinguished guests and of course our guest speaker Dean Strang I'd also like to acknowledge professor Jack Anderson who will be chairing the running the question time at the end of the lecture I'd like to remind us that we meet today on the traditional lands of the Rowan jury people of the Kulin nation and pay my respects to their elders past and present tonight's event as you can tell from the title forms part of the Peter Brett lecture series peter brash was appointed senior lecturer at the law school in 1955 reader in 1961 and honed professor of law at the university of melbourne from 1963 to 64 and professor of jurisprudence from 1964 until his death he was distinguished both by scholarship in criminal law and in legal philosophy and his determination to contest injustice in the courts so it's particularly apt our particular speaker tonight and I just want to say a few words about him before I invite him to give this evenings lecture many of you may know Dean Strang from the documentary series making a murderer and I just want to make the comment that this is probably the first time I've prepped for one of these public lectures that I'm introducing because I was told you know it's it's the making a murderer so I watched making a murderer and I told Dean this and he said well that's a lot of time I didn't go on to say that was absolutely gripped by it and it was by evenings entertainment so I highly I do highly recommend the documentary to you and Netflix is not paying me so you you'll know him from that many of you what you may not know is that he practices law in Madison Wisconsin in Strang a firm called Strang Bradley he was Wisconsin's first federal defender and has argued in the United States Supreme Court v federal circuit courts in the Wisconsin Supreme Court he's a lecturer on the adjunct faculty at the University of Virginia School of Law and has been an adjunct professor at both the University of Wisconsin law school and Marquette University Law School he also lectures in legal history for the University of Wisconsin his first book was worse than the devil and anarchists Clarence Darrow and justice in a time of terror and his second book about the mass trial of IWW members in Chicago federal court in 1918 will be published in 2018 so you can see he's got an historical bent as well we're very grateful to Dean Strang for kindly agreeing to deliver this lecture and share his wealth of knowledge so over to the lecture how can you defend these people and other questions of humanity humility and the humanities thanks T [Applause] well thank all of you and Dean Morgan the Brett family as you know it's it's commonplace to talk about what an honor it is to to offer a talk or a lecture so I fear I couldn't I couldn't give this sincerity that I actually feel about this opportunity tonight that Austin and Carolyn Evans and Jenny Morgan were kind enough to invite me down to Melbourne and all of you to attend in the mean I think that my comments tonight turned out to be a something of a meditation on the opening premises the foundations of a talk that a former Chief Justice of the Australian High Court gave just over six years ago now his talk went on to become quite descriptive of the history of legal education mine instead I think will be very lightly prescriptive toward the end of the future possibly that we might consider for legal education but speaking on the 4th of July 2011 to a conference of law professors about the balance between skills training doctrine and justice that he saw as necessary in legal education recently retired Chief Justice Robert French as you probably know as a companion and in the Order of Australia and was Chief Justice of the High Court observed toward the beginning of his remarks as follows and I want to quote him at some length the complexities of the question what is justice are illustrated by the simple example of the infamous dinner Ardi inquiry how can you lawyers represent somebody you know is guilty any answer to that question requires explanation of competing principles at work in the administration of criminal justice that the guilty should not go unpunished that nobody should be found guilty on the basis of an official assertion of guilt expressed in the laying of a charge that the lawyer is engaged to represent and not to judge the explanations were utterly satisfied the interrogator particularly if the respondent lawyer is representing somebody obnoxious any legal education worthy of its name should prepare the law student to answer that inquiry not just to deal with the tedious interrogatories at dinner parties but also to enable him or her to have a better understanding of law in society and as I say mr. Chief Justice French went on from there I want to pick up the challenge tonight the Chief Justice French offered at both a specific and a more general level i want to consider first the question that that he used as his example how can you represent those people criminal defense lawyers at least where I'm from hear this often enough that we simply refer to it as the question so I want to consider that question specifically as a lawyer of more than three decades experience now mostly in criminal defense not to offer my own answer but to offer any help that I might to law students younger lawyers and people who pursue other callings in life so that they might confront the question anew afresh and perhaps in a more structured way and then I want to turn more generally this evening to the connections between the question and the practice and study of law so in the Oh in the hope of offering help in coming to an answer to the question and then addressing the broader pedagogical issue the Chief Justice French raised I'm going to start by Framing four considerations embedded in that question I then will turn into the broader implications for legal education and for our lives as lawyers the question really begs us to consider both our humanity broadly as lawyers and as a nation and a culture to which law is intrinsic and the specific quality of humility that the truly humane inevitably possess I think both humanity as a broad quality and humility as one trait or manifestation of human virtue lead us to consider the linkage and the importance of the humanities in legal education addressing initially then the question that Chief Justice French called the mind I offer four considerations one why is the question important to why must we respect those who asked it three what will our answers reveal of us whether as law students lawyers or as they say people and other pursuits and four will we implement and live in our answers so first why is the question important I think it's important because it reveals so much about the questioner and because it is such a common question therefore it reveals a great deal about many of us and about our culture consider the question slowly how can you represent those people it's never framed as my people never even our people or one of us alienation a need to assign the accused as the other is embedded prominently in the question and implicitly but unmistakeably the question rests on the belief that both questioner and you being interrogated are above are superior to that other above superior to those people you and the questioner are the unstated we having a side conversation on the sly out of the earshot of those people the question wouldn't be put to us if you or I were one of them in the eyes of the questioner so the question is important in part because it lays bare the widely shared supposition that we do not commit crimes they do that we therefore are in a sense better than they and that you implicitly are committing something like class betrayal by coming to their aid because after all we need protection from them the question really denies implicitly but completely a nearly universal truth at least in a in a nation you know highly developed laws like yours and mine and then highly you know that nearly universal truth is that we all are criminals with all our criminals you are I am the difference between we and they mostly is that we haven't been caught or if we were caught we had the good fortune to receive some lenient treatment that didn't stymie our life prospects or deflect downward the arc of our possibilities when I say we're all criminals I don't want to show of hands I don't but an awful lot of people in this room I suspect have smoked pot have tried cocaine other illicit drugs have driven drunk at some point maybe you've had sexual contact in their youth with somebody who was too intoxicated effectively to consent we vandalized playgrounds or an opposing school's property we've bootleg music music from the internet for many of us for some of us at least worse than all of that parenthetically if you're interested in pursuing that idea of near-universal criminality I would commend to you the work of a former Minnesota public defender named Emily Baxter who runs a nonprofit organization in the states called we are all criminals org and which has a pretty good website and Emily Emily speaks widely and she's got a quite a quite lovely coffee table book or book of photography out addressing this in both text and picture but that in any event I think is why the question is important we live in a culture of near-universal criminality but who gets prosecuted who actually gets prosecuted or apprehended and prosecuted and why remain the really lively questions not who are they but who do we imagine the culturally is included in that alienated group of those people and why do we treat them as alien the second consideration I think embedded in the question is that regardless what you think it reveals of the questioner I think we need to ask why the questioner must have our respect and for me the the core reason is they must have our respect because any one of us might have asked the question ourselves at some point many of us probably did certainly some of the people we love do ask that question the questioner almost certainly is unaware of the assumptions embedded in the question let alone how unsound they are the questioner may assume rightly that she never would commit a serious crime she doesn't necessarily know or realize that there can be no guarantee that she will not be accused of a crime falsely or mistakenly he doesn't know that he or someone he loves one day suddenly may well become one of those people he doesn't realize that someday he or someone close to him will need a lawyer and lawyers we lawyers may not realize that we also will need the questioner we will need the questioner as a juror someday someone we must reach and persuade rather than scoff at and dismiss will need the questioner as a judge as someone who holds our clients immediate future and maybe long-term future in her hands we'll need the questioner simply as our friend or ally we cannot cure after all the alienation inherent in the question by treating the questioner as alien to us or our values we cannot address the implicit sense of superiority in the question by treating the questioner as morally or intellectually inferior to ourselves this is why I think we really must respect the questioner have the humility to do that third what will our answers to the question reveal of us do we crave the status quo the stability of the world as it is the way I think many prosecutors and many judges do or do we take our chances with change even chaos on the belief that our world today is only a rough penciled sketch of what it could be and what it should be if we all lived a greater commitment to the humanity of everyone and to assuring the stake of everyone in our shared earth do we think that police violations of fundamental law are regrettable but small price to pay for social order and for safety from those people or do we think that the lawlessness of those acting with the vast power of the sovereign is a greater threat to liberty and our security than any crime by the poor or by the individual ever will be do we look at the racial ethnic and class disparities surrounding us in courthouses courtrooms an entire criminal justice system and do we say how you know sympathetically how unfortunate all of those disparities are or do we repel against them urge action against them even when that will threaten the status quo are we willing to take action ourselves to address those disparities our answers to these subsidiary questions and others all wrapped up in answering the question fundamentally determine who we are and who we will be as lawyers this is what our answers reveal of us forth and finally revealed this way by our answers to the world to our families our friends our adversaries judges colleagues employers will we live with and in our answer will we befriend the friendless will we stand alone if necessary in defending the universally detested man or woman will we separate the human being who is our client from the inhuman act he may have committed will we along if necessary be unwilling to judge him only by the worst thing he's ever done we'll budding sympathy for our clients and for their victims eventually grow into a mature and deeper empathy for the entire human family will we eventually come to live with the knowledge that there is no us and know them that the very premise of the question is false for there is no those people there is only we will we in the end then get to the point where we restate the question something like this how can I not defend my people our people if and when we get to restating the dinner party question in some way like that we are defenders even if we never practice criminal defense or are not a lawyer at all we are defenders we will be defenders of all that is best in Australian life and law and culture in American life and law and culture so now I want to turn from that specific question as I promised to the more general topic of how we help one another students lawyers and citizens come to that conception of life and a lawyer's role and how we equip ourselves to give back to a society that affords lawyers the great privilege of an important role in almost every aspect of life cradle to grave I consider the relationship here of humanity it's included quality of humility and finally the humanities each to one another and together to the question with which Chief Justice French and I started so humanity at bottom what is any good answer to the question I've I've just been exploring a bit what is any good answer to that question and what are the considerations embedded in it if not an expression of shared humanity all inhumane people after all are incapable of defending anyone else they usually are capable only of attack for Humanity is in front to them and to their inevitable lack of self-esteem what real footing after all has esteem of self other than the recognition of self as both human and humane and thus necessarily the reciprocal recognition of other humans in self and self in others the inhumane person by definition cannot ground esteem in humanity that makes us human and thus must seek esteem I think inevitably a futile search but must seek esteem in things external to self and external to other human beings in money in power in praise all of which are ephemeral none of them eternal as the qualities of humanity are and all of those things in which the inhumane must seek some sense of self-worth or esteem all of those things are contests for money power praise whatever it is rather than collaborations with others when we defend in the way I've sketched it broadly when we defend we erase alienation we defend not just one person but a system of shared values that encompasses that person in all of us we defend then not the worst that any one person can do but the best that a society can aspire to be in defending one human just one person we defend all of humanity itself done rightly the humanity of the accused the humanity of the victim the humanity of the public as a whole an adequate understanding of and answer to the question I think is inseparable from a broader quality of humanity now the included trait that I've singled out is humility and I think there's a reason that humanity being or Humanitas in Latin and humility humility Oz in Latin share the same Latin root pumas the root word means earth or decomposing soil all humanity of course is temper temporal earthbound less than godly in ancient thought a creation of God like the earth itself and of the same earthly materials is what a human being was and is the humble view themselves as close to the earth to earthly affairs they make no claim to godly elevation or that they exceed anyone else for all humans are on the on the same plane the plane of the earth all of us have our toes curled in soil from the perspective of someone I think with humility but beyond entomology isn't it true isn't it just simply true in your experience that all of the really humane people you know and have met also embody a quality of humility as they demonstrate true empathy and understanding of others as they demonstrate an understanding and acceptance of a flare and the flaws the altruism and the avarice the soaring soul the sinking spite all those things that make us human and as they accept the fact that these qualities make humans potentially different from all other animals the who the humble person those with humility invariably do not exalt exalt themselves for their Humane capacity they view themselves as merely engaged in the project of collaborating with other human beings around them in making the world a little better they placed themselves neither above nor below any other human being and indeed characteristically they recognized the place and the worth of all other creatures whose existence depends on the enlightened humanity of one dominant species Homo sapiens so now to the concrete connection to the law and the question that humanity and humility have as one small subset of that species Homo sapiens those of us who study practice or teach law we must ask questions much broader than the one often asked of us for one as either Australians or Americans we must ask what we do in a classically liberal society when faced with uncertainty in our justice system if we're committed to both justice and liberty what do we do when the search for truth does not yield confidence that we have found truth after all for anyone here who might be seduced by the rise of Forensic Sciences or technology in policing and in the work of Courts seduced by our propensity to propose that either technology or the natural and Social Sciences whether that's DNA testing ballistics video typing behavioral psychology or some other discipline if any of us believe that technology or science today ordinarily produce certainty about guilt or innocence it's simply not so usually science and technology do not provide anything close to certainty and trials rather in most cases outcomes actually depend on the hazy identifications by witnesses who had a second or two to observe and often were scared to death or under the influence of something on dubious claims of accomplices seeking to avoid or reduce their own punishment on the contestable credibility of many witnesses on inference from circumstances and on the work of police officers who sometimes pursue their own hunches and preconceptions with less than fully objective rigor in short the accuracy of many outcomes in the criminal justice system simply is uncertain the problem is how we reconcile ourselves to this uncertainty and how we administer something like justice consistent with liberty justice being a quality that I think all humanities cheeks and liberty being a quality essential to humanity how do we do that when so much remain so uncertain so often I think that one answer lies in this same included value humility and humility really has not had at least where I live humility hasn't had much applied acceptance or displayed acceptance among police officers prosecutors defense lawyers judges really almost any of the actors in the institutions of criminal justice so what do I mean exactly here by humility in this context in the administration of justice and therefore the linkage to Liberty of humility me tell you a story just a quick story about another appellate judge this one an American in 1940 is war again was an engulfing Europe the United States Congress declared the third Sunday in May I am an American day the day was to celebrate those native-born citizens who reached the age of majority that year and now could vote and equally was to celebrate those immigrants naturalized that year who now could exercise the privileges and duties of citizenship citizenship I should say 1940 seems to me at this moment such a long time ago in terms of my nation's excitement and enthusiasm about welcoming immigrants and welcoming them to the privileges and duties of citizenship but be that as it may after the initial declaration of I am an American Day celebrations and following years grew especially in cities like New York which were large and also home to many many recent immigrants on the fifth celebration the anniversary and I am an American day 21st of May 1944 New York was under blue skies the temperature rose to 72 degrees as we think of - I think of measuring temperature and Fahrenheit 1415 Celsius something something in that I don't know 18 maybe in any event it was a lovely lovely spring day that 21st of May a million people a million people had gathered in New York's Central Park to celebrate the day and the keynote speaker was an unlikely man short man stocky sort of rugged good looks bushy eyebrows but a very quiet and reflective personality it was a very unlikely honour for him to be speaking that day he was a federal court of appeals judge who sat in New York City probably something of a social liberal in the privacy of a voting booth but very much a judicial conservative on the bench every American law student comes to learn his name usually in first year torts or later in Civil Procedure he was learn at hand judge hand gave a serious talk that lovely May Day and a very short one that he called the spirit of Liberty in that short speech of exactly 600 words learn at hand said this to the hushed crowd of immigrants soldiers and young people gathered there on the lawn in Central Park what then is the spirit of Liberty I cannot define it I can only tell you my own faith the spirit of Liberty is the spirit which is not to sure that it is right the spirit of Liberty is the spirit which seeks to understand the minds of other men and women the spirit of Liberty is the spirit which weighs their interests alongside its own without bias and that captures for me for me at least that captures the essential link between Liberty and humility now I don't confuse humility here as learn at hand understood and explicate it it with lazy ambivalence with mere indecision with fear to act with a lack of vigor in our arguments not at all rather this brand of humility is the recognition that while we must act and while we should hold firm principles and opinions we also must remember simply that we are human with bounded experience bounded foresight and bounded rationality so we could be wrong that could be wrong in the end which should make us cautious it seems to me at the very least about the consequences for others that we attach to our claims of certainty in the administration of criminal justice in more than 30 years now working as one officer of our courts I too rarely see those who serve in the various roles of our institutions of criminal justice which together make a system of justice I too rarely see myself and others conducting ourselves with humility I see more hubris than humility only infrequently do I see judges prosecutors defense lawyers police officers living and expressing a spirit that is not too sure that we are right so if a lack of humility compromises our humanity as lawyers or in the justice system what can we do and this brings me to law school and to the humanities we are after all at a really world class wonderful law school the oldest in Australia probably in the view of many of you the best in Australia and what we should be doing here at this school or any law school is helping to enliven and Hugh and enhance the humanity and its subsidiary expression of humility in the law students and lawyers who live here among all other tasks that law schools also must undertake so for guidance in addressing humility humanity and the humanities in the study and teaching and learning of law I think you know we've got pretty close at hand three good example examples actually one is the former dean of this law school and now maybe Vice Provost of the University Carolyn Evans she's the one who initially extended this invitation to me she's an eminent scholar on the place of religion in public life and more generally on the importance of legal regimes that leave worship and thus the human mind spirit and conscience free she is in other words someone deeply committed to the humanities and has an active academic background in and love for the Arts a second example even closer at hand is your interim dean Jenny Morgan a really accomplished scholar of feminist legal theory and the very real problems of violence against women in the intersection of gender violence and popular media treatment of it I was talking with law professors at the University of Queensland last night who consider her book on hidden gender in the law as a foundational work in this area and rightly so she's a scholar within the humanities traditions and third we have with us in spirit the man whom this very lecture series honors Peter Brett he was an eminent professor of jurisprudence which is to say philosophy as applied to problems of law here for many years and he was an ardent proponent of interdisciplinary studies before that was current all three of these examples I think are both products of and champions for the humanities and I also think humanities critical to our understanding of law and to its study that's why I want to leave you tonight with something of a caution that at least from my perspective the legal Academy increasingly has over the course of a century or more release since the rise of the legal realism movement slided the humanities as it has become enamored of the social sciences applied to the study of law law schools should try to mint new lawyers in my view at least both prepared and motivated to meet a world in which justice and injustice are systemic problems I think I stand here again with former Chief Justice Robert French although he used the phrase law in society rather than systemic for law schools meeting the challenge of preparing lawyers to pursue systemic justice presents not primarily a skills or doctrinal mastery challenge surely skills and doctrinal mastery are important but that challenge of preparing young lawyers to meet a world in which systemic injustice prevails is not first a skills and doctrine problem first M prime or primarily I think it presents a challenge of comprehension or conception of life and of the problems that dog clients throughout their lives and of values skills after all matter hardly at all if the lawyer does not see the full sweep of the problems understand their interconnectedness and nuanced causes and have the will to bring her skills to bear for a client only if she comprehends the problems the clients face and holds a conception of life that impresses upon her the injustice often in the web of problems that clients confront will she likely value both her client and justice deeply and persistent law practice so as Robert French proposed the dual challenges for the law school are to produce the student who has skills and a grasp of substantive and procedural doctrine but also has a rich conception of justice a student who is able to identify and articulate injustice and justice in thoughtful persuasive ways legal education though as we know it now or at least I know it in the United States and I will guess perhaps here too legal education now does a better job with skills than with the challenge of enlivening and deepening a conception of justice and giving some intellectual rigour to the consideration of justice and injustice as opposing concerns why is it that we do better with skills than with a rigorous or organized approach to discussing and addressing justice and injustice well I can guess I mean hi it's all I can do is sketch out I think historically maybe we're the root of that gap or imbalance lies my guess is that I would trace it back at least to a famous Dean of the Harvard Law School and somebody who's had an impact across the english-speaking world in the way we teach and learn law Christopher Columbus Langdell nineteenth late 19th century Dean of Harvard Law School he made a number of changes in legal education and in the way law school is still work and still see they're undertaking but maybe the most basic of those changes is also the least examined that is his most basic change is not the case method that he pioneered and for which he's remembered best it's not the debate that he and other formalists began with positivists it's not the reaction of the legal realists to that debate the deepest and most lasting change I think that Langdale made was his basic foundational belief that law and it's study belong to the social sciences I quote him in an 1887 address if law be not a science a university will best consult its own dignity in declining to teach it if it be not a science it is a species of handicraft and may best be learned by serving an apprentice ship to one who practices now the the Harvard condescension drips from those words even 130 years ago but he made his point sharply and eloquently the idea that the law might belong to the humanities at bottom not to the social sciences that's an idea that probably had we been able to ask them great legal thinkers from Aristotle at least through Locke would have taken for granted that law belongs in the world of the humanities that belief is one that Langdell utterly rejected now positivists have wrangled since the 1870s with lang Dells formalist idea that law could be discovered by scientific reading of judges opinions or judgments but positivists haven't doubted the premise that law is social science realists have had much the same quarrel with Langdell but in the end their dispute has been that he offered the wrong scientific discipline or no clear scientific discipline at all and that the right social sciences were sociology political science psychology and maybe economics again the realists in their day did not question the basic scientific premise that Langdale sponsored almost no one has questioned that premise since the late 19th century and this social science conception of law really is very different than a humanities conception of law would be it's the difference in a sense between objective and subjective that's what I mean by that objective now broadly speaking many of the social sciences as our law schools abridge and apply them posit the human being as an object or as a model a construct that is partially dehumanized and then seek to measure the behaviors and capacities of which that object or model are capable or display so in a sense the behavior of the object or the model is measurable over time the human being or the sort of desiccated human being that is the concept here is a black box whose conduct can and should be affected by external stimuli like legal rules or statutory incentives and sanctions designed by lawmakers for policy reasons policy reasons which by the way are about which the social science scientists generally is indifferent or agnostic but it but it it's an objective outside in sort of conception of the laws action on human beings and the measurable responses of human beings to the external stimuli that the law applies the social science approach is also quantitative it's empirical all of this by the way very useful critical in many ways to gaining insight into law but not qualitative or normative are the social sciences as a rule the humanities conception is in sharp contrast subjective again in a way by subject of I mean the human being is the very subject of all humanities and a humanities conception of law would make the human being the subject of the law that is the law is and should be an expression of the truths learned in exploration of human nature and human experience so the study of law under this conception would proceed not from the outside in but from the inside out from an exploration of what it means to be human and therefore what law must do to serve and enrich the project of becoming fully developed human beings and the humanities inevitably our qualitative or normative often they ask not just what people do but what law should do about it and what people should do as a normative sense why do these conceptual differences matter well I think in recent decades the principle social sciences in law schools have been microeconomics behavioral psychology and political science again it's sort of abridged and applied by law professors and this flattened and compacted version of social science leaves you me and students with fairly developed ideas and vocabulary for considering efficiency efficacy rational actors least cost avoiders cost-benefit analyses default positions nudges primacy recency public choice theory free rider problems the parsimony or complexity of models cognitive biases and all of the other great tools for studying law or achieving insight into law that the social sciences have to offer but this same social science perspective leaves us with few nuanced ideas about or much vocabulary for addressing in an organized way justice let alone does it hone the tools of persuasion of empathy of recognizing and articulating inevitable value choices in law and in judicial decision-making of conceiving institutions to which we fairly might entrust collective judgments or even of imagining legal all proceedings with majesty and dignity rather than administrative bureaucratic efficient regularity whatever justice is it is more qualitative than quantitative I hazard to say it's more normative than empirical and so I'm going to end where I began with Chief Justice French in his 2011 talk to the Australasian law conference exploring the parallel roles of both skills or doctrinal competence and justice in legal education I want to suggest that the young lawyer whose conception of law is confined to a Law School abridgement of Social Sciences or worse to formalism embedded in much doctrinal study might ask whether and how some of let's say Inspector Javert conduct would be subject to legal challenge by a Jean Valjean or a Fantine and that law student again imbued only of the social science perspective might understand that legal challenge as requiring a balance of societal interests may be in a reflective moment she asks whether Javert Zach shion's are an efficient way to achieve the policy goals of reducing theft and other crime but the young lawyer whose conception of law instead has been expanded by or even rooted in the humanities considers in thinking of the same book why the poor are and why they remain that way she tackles not just isolated problems of crime Riya rest and parole revocation or the lives of sex workers or child custody or abusive child foster care but she also tackles the integrated systems and seeks to understand the integrated systems that ensnare today's very real Val Jones fan teens and cosets this student sees modern even timeless life in Victor Hugo's work and understands fully the footing that Hugo provides for Anatole Frances later critique that in its majestic equality the law forbids the rich and poor alike to sleep under bridges beg in the streets and steal loaves of bread we want our students and our new lawyers to embark with doctrinal competence and familiarity with the intersections of law psychology micro economics and political science but we also should want more if we can restore to interdisciplinary legal education a proper place for the humanities for the philosophy that Peter Brett studied and the other humanities alongside the valuable social sciences our law students and new lawyers then also could leave school with a sophisticated conception of and vocabulary for injustice and justice I think we should want students to hear and recognize in Victor Hugo and in Anatole France's critiques a call to action as lawyers to hear see and feel injustice to know a reason to pursue equal justice under law for everyone to know a reason to defend our people thank you I'd be happy to my name is Jack Anderson I'm a professor here at all school my job is very simple to moderate the next 10 minutes of questions and answers and just while at Dean's Gaming is bright there just to thank him and we do this formally in a minute for an informative and challenging at times provocative a lecture and I think you'll agree with that and so we've only got ten minutes and the way we'll handle these questions will be a bit like my personality brusque and random so we have roving microphones and we have a question already thank you very much Katherine Walters my name I was in Professor Peter Brett's class back in the dare I say it's 70s thank you so much for such a challenging and dare I say elevating address this evening it was a great opportunity to hear such a thesis when you spoke of us all being criminals and I looked at the title of your speech how can you defend those people the question that crossed my mind and you may regard it as rhetorical if you prefer is how can you prosecute these people well rather than taking it as rhetorical immediately I'll take it as very personal I personally failed at prosecuting I I tried it for ten and a half months and had to get out it was my first experience with criminal law turned out I loved criminal law I just had the shoes on the wrong feet that said I can tell you what I admire in a in a good prosecutor and the fact that I identify good prosecutors and admire many of them I think implicitly says at least for me there there's room and a necessity in an ordered Society for prosecution for calling to account people who harm other people or inflict social harm more generally and what I what I respect and admire in the good prosecutors I is a devotion to trying to improve the lives of victims trying to improve the lot of people who have fallen victim to crime to do something to set it right to do something to restore what the victim has lost I admire and good prosecutors a constant sort of focus on a pole star of socially appropriate conduct and restoration of order and and loss that's inflicted I admire and every good prosecutor the quality of looking at my clients as human beings not as monsters or something less than human now many prosecutors do dehumanize the accused it's easier to do your job in some ways you know to to not sort of acknowledge your own role in inflicting harm in the name of curing it but the best prosecutors I know unflinchingly regard the people they prosecute as fully human and their families as fully human and indeed see the accused and his family as connected to the very same community community the prosecutor seeks to serve and thus the best prosecutors I know will listen to advocacy from defense council will consider new information the police haven't brought them and will amend their course or change you know alter in some way their direction when new facts are brought to light so we will always have prosecutors I my fear will always need them I honestly if I'm going to be confessional when I when I happen to be teaching the course I take more interest probably and those students who want to be prosecutors than I do and those who want to be defense lawyers in some way I guess probably because I fear I've got I've got more urgency in reaching those who want to be prosecutors and and playing some role in helping to form them as lawyers many many years ago at a lecture there was a professor who said to a very informed crowd of lawyers what's the purpose of sentencing and a very senior law grabbed the hand said well it's about punishment deterrence rehabilitation and you know etc and pres said no no no no isn't it about making a better society and I wonder if you could think about that in the context of the thesis you've projected tonight and the problem that we face in Australia at the moment of overcrowded prisons because of increasing sentences of imprisonment as the only way to deal with the problem of making the community a better place we could talk for a long time about about this problem and that and I'm not trying to duck the question but the the aspiration that that Professor expressed a few years ago in the lecture that sentencing ought to be about making a better society it is noble and it's right and the you know the for sort of traditional aims of sattell of sentencing I think of in many ways outlived their vitality or they're not alive anymore they they don't have much vitality they they've become sort of dry markers or incantations I fear and I have to fear saying this too in this group but I fear that beyond the aspirational that often what sentencing really is about although nobody nobody tens it this way is it's about maintaining a social class structure that the carceral state as or in practical effect keeps the poor poor keeps those who are disadvantaged permanently disadvantaged adds to the burdens they carry and as you approach a state of mass incarceration whatever that may mean we've been there in the United States for a while you are decimating whole communities by removal of people at too high a rate and for too long a time not just decimating those lives and not just the lives of the little boys then who grow up without a father during critical years and the mothers who's got to work two jobs to try to make ends meet you're not just decimating families but your decimally in the whole communities as you're removing vast numbers of people from them for long times so if we could pursue the aspiration that the the lecturer suggested it would include the effect on ourselves of the carceral state the long-term effects and damage that we do to ourselves by the overuse of imprisonment as a response to crime overuse both in just the rates per capita rates of incarceration and the length of time now nobody matches the United States in length of average prison sentence nobody in the world that I know comes even close or at least among you know the Western democracies but Australia is well above Europe and Scandinavia and your average sentenced lengths I think are growing so it you know it's a problem on your door stoop arguably here and you know the effects in the United States I think indisputably have been to maintain and reinforce under classes and people who will never have franchise so to speak in the society thank you for your talk from the tires well I expected something very different and I really liked what you said but I found myself thinking while you're talking about the recent horrible events in Las Vegas which I think test everyone's humanity if that person who was accused and is one believes did that crime was alive I know what your answer would be to that question the problem is he's dead so he's beyond the law and in one sense is literally indefensible he can't be punished he can't be prosecuted but we are all going to judge him should lawyers play a role perhaps as a group in defending someone in those circumstances if not who should or is defending someone in that situation in light of victims and like a bridge too far well in my view lawyers are to play a role in defending the aspirations and values that a nation and a culture profess and in the context of you know Steven paddock somebody who opened fire and people who simply gathered to to hear a concert people against whom he had no beef whatsoever it seems to me in thinking about how do we defend the the best of our culture or or defend the hopes and and imagine who we can be and should be defending our nation in that sense we'd have to say immediately that this is not just about Steven paddock it's it's about a culture that allowed him to acquire 23 assault rifles it's about a culture that when brown-skinned people commit an atrocity we speak of it as terrorism and when a white man commits an atrocity were immediately talking about how mentally ill he must be how demented he must be and you know I could we could go on a great deal about this but I I think the conversation has to shift to what American values really are what future we want to imagine for ourselves have we entered into a constitutional pact that makes gunning down school children in Connecticut the price of one aspect of our Liberty or is there a balance we can strike that will preserve the right to defend oneself preserve the sporting options hunting from any survival requirements of hunting but see fewer people and their lives as Steven paddock and it is in that rage enabled by weaponry that made this possible enabled by a society that makes it whether we like it or not thinkable that these things can just continue to happen and it's thinkable it's undeniably thinkable in the United States why because every time we have one of these mass shootings the immediate responses now is not the time to talk about gun control now is the time to grieve and to come together as a community but in that deferral of the question of how to balance the individual liberty to bear arms with the damage that almost unrestricted access to any type of weapon and any form of ammunition as the damage that inflicts on the larger society on destruction of lives and destruction of a sense that we can be better than this that we don't have to tolerate ten or twelve thousand firearm homicides every year and triple that number of firearm suicides that we can rise bubble level and that's I think the role lawyers can play in defending the United States we aspire to be or the United States that looks like the values we profess rather than looks like the carnage that we see regularly at shopping malls and now concerts and schools homes how's that for ending on a deflating depressing note thanks very much and just to wrap up by formally offering a vote of tanks I was trying desperately to think how I would summarize this and I just have two things to say first of all a Harrison Ford the very famous movie actor has a son called Malcolm when Malcolm was very young in kindergarten he was asked the question that all children are kindergartener asked what does your daddy do and he said my daddy's a famous movie actor sometimes he plays the good guy sometimes he plays the lawyer what you what you've seen today is a good guy and an honor and I think that there is no doubt about that and I think when you look at the soap title to today's talk how can you defend those people well I think the answer lies in your humanity and your humility and thank you for the 2007 Peter Brett Morial lecture and I would like you to offer your thanks generally [Music]

Channel: Melbourne Law School

Views: 5,516

Rating: 4.6862745 out of 5

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Id: gSbhsVKiNGg

Length: 73min 32sec (4412 seconds)

Published: Sun Oct 08 2017