Random Thoughts on the Intersect of Legal Education and Human Behavior by James W.Jeans, Sr. Professor Emeritus

One of the few things I recall from my first day in law school was the pronouncement from Dean Townsend as to what he perceived as his mandated mission—"to get you to think (sic) like lawyers." (An obvious rejection of any desire to get us to speak as scholars.) No one ever followed up by telling us how lawyers think but I now have a hunch what the good dean meant was that we were to be logical, analytical, structured and possess a proper sense of sequence.

Employing that law school indoctrination permits me to logically analyze and sequentially structure a topic of universal attraction—the spectrum of human behavior. (Admittedly a gargantuan task made reasonably attainable only by the unreasonable word limitation imposed by the editor.) But why should such a task be undertaken? Be patient. The relevance will be revealed in the fullness of time.

Let us pithily proceed.

All human conduct may be grouped into one of the following categories:

1. A matter of personal preference.

This encompasses most of human activity from our choice of toothpaste upon arising,¹ to our choice of attire upon retiring.² What choices we make are of little consequences. We affirm the admonition of the songster who noted that even though "you say 'tomayto' and I say 'tomahto'" it's best to avoid a fuss and simply "call the whole thing off." There are no sanctions for employing personal preferences.

2. A matter of fashion.

Some behavior transcends the realm of personal preference and introduces the element of judgment. So it is with fashion, defined as "a prevailing custom or style of dress, etiquette, socializing, etc." How do we maintain our position within these prevailing customs and remain fashionable? Alexander Pope provides the answer in his catechistic couplet.

Failure to do so invokes a sanction-being labeled (in the words of the Synonym Finder) "out-dated," "tacky," "passe" or, for those to whom fashion is of greater importance, even "dead" or "extinct."

3. A matter of courtesy.

Moving up the scale of importance we reach that level of human behavior which is judged on the basis of civility and manners. Unfortunately, this category can be as volatile as its predecessor. Two centuries ago the qualities of gentility, refinement and courtesy permeated daily behavior (if in doubt see a Jane Austen flick) and, as expressed by Edmund Burke was of transcendent importance.

What's happened in two hundred years? Juxtapose "Pride and Prejudice" with "All in the Family" and the answer is clear. Any sanctions for lacking courtesy? None.

4. A matter of vulgarity.

Our culture has suffered an insidious dumbing down of our sense of obscenity. Justice Stevens might not have known what it was but at least he knew it when he saw it. Now we neither know it nor even perceive it. The proliferation of excreta that flows from stage, screen and television has desensitized an entire generation. The mechanics of this phenomenon is revealed in this perspicacious bit of poesy.

Consider vices we have seen and heard too oft in dramatic presentations—then trace their evolution of social acceptability. Does vulgarity invoke sanctions? Ask Dennis Rodman and Madonna.

5. A matter of morality.

Human behavior might also be judged on the basis of its ethical or virtuous component. We deign to judge some actions as being right or wrong, although the area in which such an appraisal is made has diminished considerably in the last decade (so much so that Dr. Menninger was moved to author a book, "Whatever happened to sin?") I don't know what Menninger's explanation was for our failure to condemn acts as immoral but here are a couple of suggestions.

One, the popularity of situational ethics has broadened the issues of moral behavior. No longer is there a simple inquiry of "what" happened. Now we anguish over "how" and "who" and "why."

Two, the oft recited, "Judge not lest you be judged" provides a biblically based copout, ironically invoked most often by those who disdain other expressions of holy writ. Aside from its biblical endorsement, it provides a pithy and almost lyrical excuse for opting out and, in addition, its invocation suggests a certain aura of self righteousness.

So what's the sanction for immorality? We'll have to wait for the "last Trump" and celestial judgment.

6. The matter of legality.

Tom Paine observed that, "Government like dress, is the badge of lost innocence" and with each passing year as our innocence fades we see more and more governmental sanctions imposed in the form of an explosive growth of statutes, ordinances, administrative regulations, school restrictions, etc. Regardless what evokes the oft heard complaint, "Ain't it awful," the proposed solution is the one-size-fits all response: "There ought to be a law." And so the laws pile up, as do the law breakers.

7. The matter of taboo.

The most egregious of all human behavior is best expressed by the term, taboo. When an act is characterized by this distinctive Polynesian word, it is not simply immoral or illegal it is much more—"prohibited," "nixed," "verboten." When acts occurred, such as incest, patricide, necrophilia, they were thought so reprehensible that society itself had to be cleansed from contamination. The sanctions of choice—ostracism or death.

Now an attempt to justify the relevance of the preceding exercise.

First, consider those areas of human behavior which have been the subject of public debate in recent years. Some obvious candidates: abortion, divorce, ethnic labels, gender issues, homosexuality, premarital sex, profanity.

Now, compare how these areas of human speech and behavior were categorized as you were growing up and how they are categorized today.