Journal of the Institute for the Study of Legal Ethics

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In his essay The Eighteenth Brumaire of Louis Bonaparte, Karl Marx commented that "The tradition of all the dead generations weighs like a nightmare on the brain of the living." In this famous remark, as in so many other ways, Marx expressed with a unique stylistic genius the spirit of our age, which regards every impediment to its restless acceleration as a barrier to be overcome-as a dead weight that must be cast off if the two great reigning ideals of our time, the ideals of freedom and speed, are to be honored in the way they demand. To many today the past is a dead weight of this kind, a vast repository of error and prejudice, of silliness and superstition, a realm of moral and material backwardness whose only continuing utility for us is as a reminder of how brutal and stupid people can be. Those who see the past in this way, of course, are understandably eager to forget it, or to condemn it. They are anxious to move on to the future where life will be freer, and pleasures will come faster than ever before. But there is another and more positive way of conceiving the weight of the past. The past, it might be said, holds us in the human world in the same way that gravity holds us on the earth. Gravity is a burden. It makes life on earth heavy and hard. But without it we would all fly away into space. We would be separate spinning atoms, homeless in the void. In a similar way, the past grounds us in the human world of ideas and institutions, and it gives our lives a density and a depth that neither the present, which is transitory, nor the future, which is blank, can ever provide.

This is how I view the past of the legal profession. The profession's past is complex and contested. There are different views of what it is and what it means. There is much in it that is petty and unflattering, and some things that are shameful, as we judge them now in the light of contemporary moral opinion. But it is from the deep well of the past that lawyers also draw their highest ideals, and from its accumulation of experience that their collective identity continues, however shakily, to beformed. Today the American legal profession is in turmoil. The organized bar has lost much of its authority. The country's leading firms have been transformed in basic ways. The aims of legal education are increasingly unclear to teachers and practitioners alike. And a new and aggressive culture of commercial values, which claims for itself a moral as well as a material superiority, is spreading through the profession as a whole. There are some who celebrate these changes and call them liberating. There are others who insist they are the product of large economic forces over which none of us, either individually or collectively, have any control. I feel no sympathy at all for the first group and only some for the second, whose fatalism concedes far too little to the power of ideas and to the possibilities and opportunities for resistance. But whatever side one takes in these debates, the meaning of the changes that have overtaken the American legal profession in the last quarter of the twentieth century can be understood only from the standpoint of its older values and its received traditions, which is to say, only from the standpoint of its past.



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