This post is a preview of a forthcoming online Davenant Hall class, “Founding Era Jurisprudence”, running in the Winter Term 2024 (January to March), and convened by Ethan Foster.
If you wish to register for the module you can do so here.
There are two kinds of people you probably shouldn’t trust: a lawyer, and a historian. I come to you as both, but please hear me out.
Have you noticed that most people don’t really care to learn about the law until someone hits their car, steals a package off their porch, or stabs an in-law? Can you blame them? What if I told you that lawyers are often the same way? Many don’t care about the law if it isn’t making money. And in fairness to them, they don’t really have the time to care. To be interested in the practice of the law is very different from having an interest in the law for its own sake. As a result, most Americans (including lawyers) are willfully ignorant of two basic things about the law: where law comes from as a historical matter, and what this thing called “law” is in the first place. Now when I say that law has a nature and a history, I’m not saying that if we all gazed into our navels a little bit harder, the substance of the law will be made manifest to us. On the contrary, law is not merely a philosophical creature, but a historical one as well. But a creature it is, nonetheless: it has a nature, and its nature reflects ours. It also has a history, and its history happens to be our history. My suggestion, then, is that if we let ourselves be ignorant of our laws, such ignorance comes at the cost of losing an awareness of a vital dimension of our own nature and our own history. To put the cherry on top, this is particularly true of democracies.
Allow me to explain by taking you back to a dusty and crowded lecture hall in Philadelphia, sometime in late 1790. The man who has just stepped up to the podium of this class thrown open to the public is none other than the Associate Justice of the U.S. Supreme Court, James Wilson. He tells you he has prepared (and will give you a sample of) his new series of Lectures on Law designed to form the basis of a public law education in America. Think of it as a sort of American alternative to Blackstone’s Commentaries. As an immigrant from Scotland who studied law in America under John Dickinson, James Wilson is now offering you a foundational, never-before taught course in American law. What’s most exciting is that his course is designed for lawyers and non-lawyers alike: after all, you might find yourself on a jury or simply wondering if the law might protect you from a certain kind of injustice you just experienced. Justice Wilson says that he plans to teach you how American law is largely derived from the English common law, but with distinctives of its own. At its root, he argues, American law starts from the assumption that the common law comes from custom, and custom comes from the combination of common sense, consent, and time. In that sense, common law is designed to thrive in a democracy because it captures the slow development of what people customarily assent to as good and proper over time. As a corollary, Justice Wilson also implies that his goal is to liberate American law from the hyper-professionalization that has turned it into a dour and dusty subject left solely to specialist-practitioners.
Wilson’s plan was ambitious. His goal was to provide a distinctly American legal education. Why? Because he believed that a legally informed public was the best way to ensure that the law never strayed far from common sensibilities. He hoped to provide an American jurisprudence that best fit America’s democratic institutions and public character, one that would both empower citizens and shape the future of legal discourse by making it public. Wilson was a democrat in that crucial sense: he believed that for the United States to survive as a democracy, all citizens must share in the knowledge of and familiarity with its laws, to nurture the laws on the common sense of the people. But to maintain a democratically sensible law required a publicly accessible legal education.
Fast forward to today: we can all agree that Wilson’s project failed. Whether he failed us or we failed ourselves is beside the point. Not only do most people not know their laws, they don’t realize that their ignorance is a civic form of self-harm until it’s too late. While students must learn chemistry to graduate high-school—and I’m not knocking chemistry—they never have to learn about something they are even more likely to encounter in their day-to-day lives: the basic contours of the law. As a result, we are all complicit in the hyper-professionalization of American law. For as long as we let ourselves be ignorant of the law, the law’s development will be detached from the most natural source of common sense: the people. And if we fail to revive our education in the inherited development of generations of common-sense reasoning (captured within the law), we will lose common sense in our everyday lives. I’d venture that that’s truly what’s at stake.
I perceive a skeptic noting here that if law truly does have a nature, and if law is generally a subject about which the citizens of other countries remain ignorant, then the stakes really can’t be that grave. Law has always been dusty and boring and therefore we should allow it to remain that way. But that’s like saying that because most people are not fit to lift heavy weights, and because most heavy weights are only lifted by strong people, we should only entrust the lifting of heavy weights to strong people. True, there is a kind of natural atrophy or lack of proper conditioning that would suggest that only professional weightlifters should lift heavy weights, but that’s because most people shrink back from cultivating and conditioning themselves, myself included. And most weightlifters must slowly work up to the level of being able to lift heavy weights. But unlike the analogy of the weights, the cost of deferring to a select few in the knowledge and familiarity of the law harms not only ourselves, but those around us. But the inverse is also true: the more time we take to learn about our laws, the more the subject will enter into ordinary conversation, and conversation is the forge of common sense.
This belief undergirds my upcoming Davenant Hall course, “Founding Era Jurisprudence,” which will introduce students to the foundations of the American constitutional system–whether they are lawyers looking to know their own profession better, theological students looking to understand the intellectual framework of the Founders, or laypeople simply wanting to know better the law of their land, this course is for you. One caution: this course will not turn you into a lawyer any more than a crash course in self defense will turn you into a crime fighter. But like the course in self-defense, this course will introduce you to the fundamentals of a world that you should know. Maybe, just maybe, a little legal education for each of us will have a multiplying effect and, in turn, will keep our legal system sensible.
This Theology & Law/Christian History course will be taught by Ethan Foster. This course will run from January 8th through March 16th. Register here.
Ethan Foster holds a J.D. and an M.A. (in History) from the University of Virginia, where he won the law school’s Roger and Madeleine Traynor Prize for his M.A. Thesis, “James Wilson (1742-1798): America’s Forgotten Blackstone.” As a practicing attorney and legal historian, he has helped draft amicus briefs to the U.S. Supreme Court and presented papers on judicial philosophy. His research interests include jurisprudence, the intellectual history of the early American republic, and global legal history. Mr. Foster has clerked for three federal judges and has now settled into private practice at Parsons, Behle, & Latimer in his hometown of Reno, Nevada.