The centrality of language and language
structure to legal reasoning has long been recognized by legal theorists. From
John Austin’s conceptualization of law as the “command” of a sovereign through
Ronald Dworkin’s insistence on the centrality
of interpretation to law,
jurisprudence has grappled with the place of language in legal decision making.
Legal scholars investigating the structure of
legal reasoning from a variety of angles seem inevitably to wind up asking
questions about legal language or rhetoric and how it works.
In an interesting
early attempt to map the language of an evolving doctrine, Edward Levi showed
how phrases such as “imminently dangerous” and “inherently dangerous” took on a
life of their own over time in legal reasoning, going through messy periods of
linguistic evolution during which jurists themselves became somewhat unclear
about the meaning of the obstreperous legal categories.
James Boyd White has suggested that in
the language of judicial opinions, judges constitute communities and engage in
conversations that can foster or discourage
democracy.
And scholars like Patricia Williams
and Duncan Kennedy have looked at the law school classrooms in which this
language is taught as prisms through which we can see, in crystallized form, the
language of law in action—though the landscape they discern is very bleak indeed,
reinforcing existing power asymmetries, sexism, and racism.
Indeed, over the years, a great deal
has been written about law school education by legal academics, much of it
taking the form of a debate over the relative benefits and detriments of
particular approaches to law school education.
Ever since 1870, when Christopher
Columbus Langdell introduced his new revolutionary approach at the Harvard Law School,
law school teaching has had its own distinctive “Socratic method” genre of
teaching. Langdell linked this method for teaching with an overall substantive
theory of law, predicated on the idea that there are foundational legal principles,
analogous to scientific law, that are discernable through analysis of the raw
data of appellate cases.
Although it is not clear to what extent people
using the label “Socratic method” are actually talking about the same kind of
speech genre,commentators continue to speak of Socratic teaching as the signal
approach to law school pedagogy.
The stereotypic picture of this genre is that
professors question students on the cases assigned for a particular class, so
that information is imparted not through lecture or explanation but through
an ongoing stream of questions
designed to challenge unquestioned assumptions and reveal underlying legal
principles.
There have been numerous critiques of
Langdell’s formalist philosophy and
pedagogical system—most notably from the legal realist school of the 1930s,
which also pressed for more clinical education in law schools, and more
recently from critical scholars within the legal academy.
However, despite a number of arguably successful
attacks on the substantive underpinnings of Langdell’s approach, the method
itself appears to have outlasted its theoretical rationale.
Central themes in critiques of
Socratic method teaching in law schools have been that it fails to impart moral
values, that it imparts the wrong moral values, that it is not functionally
adequate even for teaching doctrine, that it causes unnecessary and harmful
stress, that it favors white male students, that it fosters inLaw, Language,
and the Law School Classroom civility
and overly competitive attitudes, and that it leaves students unprepared for the
realities of practice. Johnson, for example, notes that as law schools adopted the
Socratic method, there was a shift from the model of lawyers as moral decision makers
to an image of law as a technical field of expertise.
Zemans and Rosenblum similarly note the move
away from moral considerations involved in Langdellian scientism. Critical
legal theorists like Duncan Kennedy take this insight one step
further, insisting that the shift to
technical expertise itself embodied a morality, but in a negative sense.
In a somewhat different vein, James B. White
characterizes current law school training, with its emphasis on “doctrine in a
vacuum,” as a failure, and proposes instead a more egalitarian and creative
training. Implicit in White’s critique is also the notion of functional, as well
as moral, failure: that the Socratic method and accompanying approaches to law
school education, when losing the interest and destroying the confidence of law
students, fail to effectively impart even the more abstract conceptual aspects
of legal training.
Another longstanding criticism has been that
law schools turn out lawyers not equipped to practice
law.This criticism, though it did not
end the use of Socratic training, did contribute to a partially successful
movement for clinical education in law schools.
Today, some of the most innovative
ideas about improving law teaching can be found in the scholarship of clinical
and legal writing law professors. Specific critiques of the Socratic method have
emerged from psychological, sociological, and educational research. For example,
psychiatrist Alan Stone used a combination of personal observation and interviewing
to assess the advantages of this teaching method.
Although he concluded that there were
some advantages for “channeling group emotions into structured academic
inquiry,” Stone also expressed concern about the negative effects of the
Socratic method on students’ interpersonal relations and sense of self-esteem,
a theme echoed in current
studies of psychological distress
among law students.
Studies have also highlighted the limits of
Socratic teaching in reaching students with diverse learning styles,personalities,
and backgrounds.99 Susan Daicoff connects the shift to more impersonal
reasoning encouraged by legal training
with lawyer dissatisfaction, lowered public trust in the legal profession, and
declining professionalism.
Comments
Post a Comment