Humanity and the Law

The article by Professor Markovits 1 is thoughtful and careful perhaps painfully so but it simply and systematically ignores the human condition. The human condition is what law and law practice address, or, as they say these days, what law is "all about." The nonnative premise of Professor Markovits's analysis is that all realworld persons are equal. This premise is drawn chiefly from the philosophy of Immanuel Kant. From this point of depal1ure, it is supposed to follow that all persons should be treated equally. From this, it follo\1,,'s in turn that any vocation or calling that requires different treatment of various persons is ethically suspect. lndeed, such a vocation is ethically wrong, maybe evil. The practice of law, as defined by its function, its traditions, and its ethical n0n11S, is a vocation that requires its practitioners to accord different treatment to various persons. 1t follows that the practice of law is ethically suspect, perhaps evil. Students: Welcome to the Yale Law School! The same lesson is purveyed at many other law schools these days, particularly in professional ethics courses. I think this is demoralizing. Moreover, it is inconect as a reading of Kant and as an understanding of the human condition. In my understanding of Kantian moral philosophy, that source does not suppOl1 a premise of equality among real-world persons. Kant's ethical theorem is the "categorical imperative," the substance of which does imply universal equality. But in Kant the categorical imperative is a methodical step in a concept of morality, not a concept of legality. Broadly and inexactly described, Kant's categorical imperative is presented as a substitute or equivalence for the traditional Christian (and Jewish) idea of God's \vill. At the same time, it was an argument against David Hume's thesis that thought (including moral thought) is a product of experience. In vulgar terms, Kant was arguing that "nature" (human