I had liked Guido's approach to the law from the first day of Torts, but as the semester progressed it became virtually the only one that didn't madden me. Guido seemed the only professor willing to acknowledge that legal education had a powerful influence over student values, that it could cause students to lose their humanity. Yes, he said, we want a legal system based on rules, on order--but not at the cost of eliminating the fanciful and quixotic, the unexpected, the unfathomable mysteries that make life worth living.
Guido constantly reminded us that law was a tool of limited uses. Law oversimplified the world, he seemed to say, because it allowed lawyers to replace personal experience with rules, subjective values with legal certainty. The law decided that euthanasia is wrong, polygamy is wrong, homosexuality is less worthy than heterosexuality--and that was supposed to put an end to the discussion. Why? Because law's value system--based on efficiency, rationality, orderliness--couldn't imagine any other conclusion. Guido recognized that the lawyer's value system, though apparently impartial, tilted the legal playing field, and ultimately society at large, in a lawyerly direction. And that frightened him--not because lawyers' values are necessarily bad, but because lawyers foster changes in society without its knowledge or assent.
The dean tried to instill in future lawyers the idea that they must understand law's choices. He taught the conversion of love into contract, responsibility into rule, idea into word, is invariably a diminishment; that taking take law beyond its proper role--to shape life rather than outline it--is to displace other ways of thinking, other values, that are equally valid but far more fragile. The lawyer himself will likely come to prefer the elegance of law to the anarchy of life, but if that lawyerly division means compromising the diversity of life, he must look to his conscience.
Guido expressed these ideas best in his lecture on the Gift of The Evil Deity, which came mid-way through the semester.
"Suppose an Evil Deity were to appear before you, as head of your country, and offer a boon, a gift, that would make life more pleasant, more enjoyable, in any way you wish. The gift can be anything you want--greedy, obscene, idealistic, it doesn't matter--but it cannot, at least for the moment, do one thing; it cannot save lives.
"'In exchange for this gift,' the deity says, 'all I ask is the lives of one thousand young men and women, every year, picked at random. They will die quite horrible deaths. All you have to do is agree.'"
It was the myth of Theseus and Athens' tribute to the Minotaur.
"Do you accept the offer?"
We say nothing for a moment, though a few students shake their heads. Guido has laid a trap, and we all know it.
A voice from the back says, "Sure." The class laughs--someone had to get Guido's ball rolling.
"You accept?"
Pause.
"So, what's the difference between the gift and the automobile?"
Silence.
"The automobile kills 55,000 people a year, not one thousand. Is that the only difference?"
A woman raises her hand. Guido motions to her.
"We make automobiles safer all the time," she says. "Seat belts, air bags, and so on?"
"We believe we can, yes. And often think we do. There is an element of perfectibility that we like to have fool us.
"Well, this Evil Deity is pretty clever, he can make his boon perfect, too. He says, 'You want perfectibility? Okay, we'll make a game of it, let's call it 'Guido's Roulette.' I'll give you the boon, but instead of costing a thousand lives every year it will cost as many as two thousand some years, and in others, at least in theory, could go down to zero. But the number will vary inversely with the pleasures of the gift. Driving carefully will save lives but it won't be as much fun.'"
I grew a little nervous. Guido was a major player in the ground-breaking field known as 'law and economics' (and one of its few liberal voices); if he starts to play number games, this could be awful.
Guido looks down at his notes, palms on the desk.
"Let me tell you a story about perfectibility."
Guido said he had attended a conference some years before in which a doctor promoting a definition of death based on flat electroencephalograms was asked how often the definition would result in patients being buried alive. The doctor cited a very low figure, whereupon Guido asked whether the older definition of death was more accurate. It was, the doctor replied, in theory but not in practice; the "vital signs" tests--heartbeat, breath in the mirror, and the like--were better indicators of life as long as they were employed carefully, but often, in the rush of hospital work, they weren't.
"We ate of the tree of knowledge that day," Guido said. "We faced a new definition that ensured a specific number of people would be declared dead when they shouldn't have been, and another, perfectible definition which in fact led to a greater number of deaths."
This was going to be a good class.
