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the law as techne?

The NY Times "Opinionator" blog has an interesting piece up:

http://opinionator.blogs.nytimes.com/2011/12/12/teaching-law/

Essentially, there was a story earlier this week where David Segal addressed the complaint that law schools are teaching things that aren't of any practical value to lawyers. The line of argument reminded me of a great line in the "Law and Order" episode "Aftershock," when lawyer Claire Kincaid complains to her father, a law school professor, that people take contracts courses without ever reading a contract. She's overwhelmed by the realities of practicing law and feels her education didn't prepare her in the slightest for what she had to face. Her dad's response? She went to a law school, not a lawyer school.

That's the basic distinction here. Dr Fish describes a course he taught this semester at Yale, on the religion clause in the U.S. Constitution where his students studied philosophers like Kant, Locke, Rawles, Hobbes, and the rest. These aren't texts that will feature into a philosopher's legal briefs, Dr. Fish admits, but he thinks being exposed to them is worthwhile none the less. I very nearly said "useful" just now, but that's not it at all. In fact, Fish points out that the use of study isn't the point at all. He quotes Dr. Brian Leiter, who I associate with a major philosophy blog but who apparently is also a law professor: The criterion of scholarly inquiry is whether it makes a contribution to knowledge and understanding, not whether it ‘helps.’

I don't disagree with them. I'm studying philosophy and teaching it as part of my fellowship, and one of the questions I hate hearing is what use a certain topic is. You can question why some topics are interesting or important, to be sure, but don't demand its use, its application to things with a practical benefit. Philosophy is an art, and I think Dr. Leiter's right: the important question is does it illuminate, does it lead to deeper and truer and more nuanced understanding? Not whether it puts money in the bank.

The trouble is, law school does have to prepare you to be a lawyer. Students go into debt, often incredibly deep, and it's not fair to them if (a) law school is required to practice law, and (b) it doesn't really help them practice law. Things get even more complicated when you talk about public funding. There are sometimes special programs where the government will pay for your schooling if you work so many years in a D.A.'s office rather than in private practice. It's more common in other professions (nursing, education), but I know my M.A. school had a program like that for law school. And I find myself wondering, as a taxpayer: is that just?

I think it comes down to how we view education. If education is all about preparing people to fill a job we need filled, and we support it through taxes (whether for special programs like those, public school tuition, subsidized loans, whatever), I think you can make a case that we should only be paying for things that actually serve a public purpose. We help the best future doctors pay for med school because we want those people to go to med school - it's in our interest. But you don't take vitally needed money from other services and spend it on something that will maybe help the person become a better individual, but won't actually contribute to the roles society needs them to fill.

I personally think that's the wrong model. Democracies rely on everyone being well-educated and critical. ANd part of the purpose of society is to help each individual flourish as a human, and a big part of what that means is the freedom to think deep thoughts and learn more about things that are worth thinking about even if there isn't a practical payoff. People talk a lot about the dignity of human life; part of that dignity is the dignity to be fully human, fully rational no matter your wealth. Put it simply: subjects like law and philosophy and all the rest shouldn't just be a "luxury" for the rich. Under this model, I'd say it makes sense to help pay for even "impractical" subjects. Because even if they don't prepare you for a job, they help you become a better person.

That of course involves caring about what is best for other people and not just what they can do for me. I personally think that's a deeply moral stance, but it's one that requires a genuine sense of community. Whether that still exists in this country? Not so sure on that one.

Comments

( 4 comments — Leave a comment )
penta2
Dec. 13th, 2011 03:13 pm (UTC)
The problem with that approach is that resources are finite; in the case of public resources, too (speaking to government loans or loan-forgiveness programs), giving money so that one might "become a better person" has basically nothing to recommend it in terms of "wise stewardship of the public dollar". (It's even *worse* when you replace "public" with "donated" in most cases, IMHO.) You cannot really see an outcome in that case (define "better person"? define "improved"?), while you can if the education is focused on practical things. You can, at least, tell if the education did something, or did it just go in one ear and out the other? (That is a terrible problem with higher education today, IMHO - we measure students plenty to get in to a program, but we don't measure whether, say, they even remember anything of their freshman-year courses by the time they graduate.)

Now, don't get me wrong: I wish there was money around to pay for "education for the sake of self-improvement". I'd be the first to take advantage of it, because despite the fact that I screwed up college, I really wouldn't mind being able to go to graduate school.

However, especially these days, there isn't. Money is more than finite, it's actively scarce these days. So I can't really blame people for wanting, say, law school (or graduate school programs generally) to be vigorously-focused on practical skills.
marta_bee
Dec. 13th, 2011 04:17 pm (UTC)
I hear you on the scarcity of resources all around. Seriously. I know folks are hurting, and it's a hard choice to say we should put $10,000 into a student's education rather than into food supplements, affordable housing, or the like. So I get the drive to look at education like a balance-sheet where expenditures (either by the individual or by the public on his behalf) have to yield benefits down the line. Quantifiable benefits, at least as much as you put out to get the degree. And so I get the people who say that the purpose of a degree is to be able to do a job in the field that degree was aimed toward.

There are a couple of problems with that. First, I do agree with Dr. Fish that the best lawyers (or scientists, or doctors, or educators, or...) have a foundation in something beyond the practical skills they draw upon. Being a good lawyer takes more than trial strategies 101, it takes a thorough understanding of the underpinnings and practice of the law. Just like a good research scientist needs not just the information but also the research skills to put that information to work. And those skills (though I hesitate to use that word because they're really more character virtues than what we usually mean by skills) aren't the kind of things that can be learned by just paying attention to the practical points.

My other problem is we live in a democracy, and that means people besides just the most able or the wealthiest are trusted with choices. Now there's an inherent unfairness in that to people who have put in the work to develop considered opinions. That means I have a definite interest in your developing your intellect and character in a way that you actually can and will think about issues. That's what I mean by self-improvement: developing the rational capacities that let you think about issues rationally and critically. And education is the best method (though certainly not the only one) I know to attaining those skills. That's why I think viewing education as an individual's investment in his future employability really misses the point.

Btw, I don't recognize your name. Do we know each other? (Not that we need to, but if we do, I wouldn't mind knowing.)
penta2
Dec. 13th, 2011 05:03 pm (UTC)
No, we don't know each other, I just noticed your crosspost to dreamwidth, and felt like commenting.:)

You raise some good points. My counterpoint would be that if you're trying to develop citizens in a democracy, college is way too late. It's a task that's done by the end of elementary school, high school at best. There is a distinct reason for the (absolutely apocryphal) Jesuit maxim that goes something like "Give me a boy for seven years, and I shall give you back whatever man you desire." The initial 7 or so years a kid is in school, from about 6 to 13, really are key in developing how a kid sees the world. If they don't learn the skills, traits, virtues (however you want to call it) of citizenship then, they are unlikely to develop them later. (They can, but it gets a lot harder.)

By the time college comes around, you're beyond "formation". That's set already, generally.

I agree that there needs to be more of a focus on preparing citizens...I just think it's too late in college/university, and thus that college really should have a preprofessional purpose. (Taken broadly; I love a nice, broad liberal arts education in undergrad. I just think that education needs to lead somewhere non-circular. The point of a philosophy degree or an English degree (or so forth) cannot just be "graduate school", and grad school should never just lead back to academia.)
roh_wyn
Dec. 13th, 2011 04:20 pm (UTC)
a big part of what that means is the freedom to think deep thoughts and learn more about things that are worth thinking about even if there isn't a practical payoff

Yes, but this assumes that it's the duty of the government to encourage everyone to think deep thoughts. It's emphatically not, especially when the expectation of the voting public in a democracy is that public revenue will be used wisely in a way that benefits society in obvious, tangible ways. In other words, public resources cannot be put to use in projects that don't benefit society, except in an abstract "make a person better" sort of way.

Also, there are no tangible ways to measure an abstract benefit. If you train a civil engineer, for example, it's very easy to determine if he's acquired the skills to build a bridge, and the bridge is a tangible, objective measure of the benefit to society. On the other hand, if you train a philosopher to think, is there any way to measure the ultimate benefit to society? I don't think so.

(The poster above me makes this point more eloquently than I do, so I'll just defer).

It's interesting that you use law school as the basis for your argument. From my personal (albeit highly anecdotal) experience, I can say this. The better rated a law school, the more it focuses on law as philosophy and less on law as vocational training. I went to a Top 20 law school where the law professors were very clear on not wanting to be the drudges who taught you how to write a legal brief. You're supposed to learn that on the job, and the truth is, most new lawyers do just that.

I see the purpose of law school as teaching you to think critically but inside the box prescribed by the black letter of the law. Legal studies distinct from philosophy. The point is not to train lawyers to think; it's to train them to think in a particular way.
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