2

Source: The Betrayed Profession (1994), p. 238 Middle.

  Judge Learned Hand was certainly right when he evoked the commandment "Thou shalt not ration justice"; but it is not quite that easy. The relationship between law and justice is complex. Hand's contemporary Benjamin Cardozo noted: "[W]hen we use the word justice the quality we most frequently have in mind is charity." Hand himself, speculating on the lawyer's contribution, said, "I wonder whether the best mood or habit is not that, forgetting for the time our job as lawyers, we should think of human beings as a whole, we should look at life sub specie aeternitatis and yet believe that all specific choices may be momentous." Justice, moreover, is not immutable; it changes with time. "Laws and institutions," Thomas Jefferson wrote in a letter in 1816, "must go hand in hand with the progress of the human mind. As that becomes more devel- oped, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." 10 Justice Oliver Wendell Holmes, Jr., in one of his devil's advocate moments, said that law was the governance Of the living by the dead. 1

  1. What's the emboldened quotation's source? Google yielded nothing.

  2. What did Hand intend to say? What is meant by 'whether the best mood or habit is not that'? 'specific choices'? 'Momentous'?

3

I think the quote is just awkwardly worded. It makes more sense when rearranged like this: "Forgetting for the time our job as lawyers, I wonder whether the best mood or habit is not that we should think of human beings as a whole, we should look at life sub specie aeternitatis, and yet believe that all specific choices may be momentous." So he's just saying that these are better ways to approach the lawyer's duty.

Besides Google, I ran the quote through Lexis, Westlaw, and Bloomberg Law and came up with nothing. The fact that I can't get find it in any of those sources -- along with the fact that it's awkwardly worded -- suggests it wasn't a written source. I think that's especially possible because this book was co-authored by Matthew Mayer, whose work on the legal profession makes extensive use of quotes from speeches by lawyers and judges -- including several by Judge Hand -- going back to the early 20th century.

  • 1
    And I'm also just now seeing that the first quote from Hand, "thou shalt not ration justice," is in fact from a 1951 speech to the Legal Aid Society of New York. So I'd guess that's where the rest comes from, as well. – bdb484 Apr 15 '18 at 2:31
  • I think this is right, but I want to make sure I understand your interpretation - you would say that he is indeed saying we should look at human beings as a whole and phrasing it in the negative, much as in "Should we not eat now?" is also "Should we eat now?" Applied here, in other words, as "I wonder whether the best mood or habit is that we should think of human beings as a whole, we should look at life..." I make the distinction because the sub specie aeternitatis bit is consistent with looking at something as a whole rather than not. – A.fm. Apr 15 '18 at 13:19
  • 1
    That's right. It's like saying, "Isn't the best habit to view humans as a whole, sub species aeternitatis?" – bdb484 Apr 15 '18 at 14:09

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