A Moral Obligation: Question and Answer with Steve Sheppard, William H. Enfield Professor of Law
Why did you decide to write I Do Solemnly Swear?
Sheppard: I get mad at newspapers and the television when I see presidents, governors, senators, and others say they have no choice but to do something stupid, and they blame the law. It is not the law’s fault. The law is not that stupid, and it deserves better. This book explains why – and how the law should be served by these people.
How long did it take you to write the book?
Sheppard: Not long – about ten years. But I had the advantage of having written several articles and a master’s thesis on little bits of the problem in advance.
Did you experience any significant challenges while writing the book?
Sheppard: Lots. It is a big question – why the law deserves better and how it should be served – and it is a question for which people think they know the answer. It really took a lot of work not only to read the arguments people have made for the past 2,500 years but also to figure out what makes sense in our time and what makes sense for American law, and maybe for law everywhere and all the time.
Did you know the answer before you started?
Sheppard: I thought I knew the answer before I started, but I was wrong. I was lucky to have some really good teachers – people like H.L.A. Hart, Ronald Dworkin, and John Finnis – and I thought I could answer the question using their books. I did use some of their arguments, but to make them effective so a lawyer or a judge could use them I needed two old lawyers – Cicero and a German judge named Leibniz. These are thoughtful people who had the benefit of doing the law, and the practicality of their arguments made my teachers’ more abstract arguments come together.
Do you use examples in your book?
Sheppard: Yes. I think it is hard to understand the law in the abstract and much easier to understand in cases. I used law in the American colonies to illustrate my points. Maybe I should say I studied them to figure out my points.
One of the biggest disasters in American law was the colonial trial of the people accused of witchcraft in Salem. Success or failure there depended on how the judges did their job. Those who studied and were thorough and used the law had few problems. Those who played politics or did what others wanted or listened to arguments based on fear, or religion, and not on evidence – those folks killed a lot of innocent people. Salem is a story you can learn things from. But I use a lot of other stories. I looked to people like Pontius Pilot and to stories like Herman Melville’s. And I looked at some famous cases, like Bill Clinton’s and Tom DeLay’s. I tried to learn something that we all can use to make the system better.
So, how does the legal system work?
Sheppard: The legal system depends upon officials doing their jobs as human beings. The legal system is not a machine with cogs. In order for the system to succeed, officials must write laws that are fair and effective and provide the people bound to those laws with the security, economy, and hope that they and the community need. But laws well written are not enough. Other officials must act toward every person with equal care and must pursue the truth in every question – even if it takes time and money. They may not allow the system itself to become oppressive or captive to those with influence. Every official must have enough discretion to see that laws pursue truth and justice in a meaningful sense for every individual.
It is terribly dangerous to think of justice as anything but for the individual. The theories of justice now popular in universities are too grand. They ignore the law, which must always be about justice for the individual: it is the personal responsibility of every official to ensure that justice for each person within their power.
In the book, I call this a retail model of justice, but most theories of justice today are wholesale. These theories tend to ignore the requirements of office that make retail justice more likely: hard work, investigation, skepticism, but above all the ability to listen to the people one is about to deprive of some opportunity by law to ensure that nothing is overlooked.
This might seem pretty obvious, but it isn’t how people talk about justice very often today. In fact some think officials aren’t supposed to do this work but just be mindless tools to implement rules written on pieces of paper. The law requires much more than this.
Who do you hope reads I Do Solemnly Swear?
Sheppard: I suppose there is something in the book for everybody. I would like officials to read it to understand better what most people with such jobs already understand – their jobs are hard, maybe impossible. But the book also will give them tools to do them better. In a democracy, though, all of us are officials. All of us are accountable. It is, after all, all our fault.