Law in Contemporary Society
-- AnjaliBhat - 20 Apr 2009

This is a revision of TanyaSehgalFirstPaper.

Is law school Socratic? Should it be? This is a question worth asking not only because law schools have named its traditional method of teaching after him, but because legal doctrine borrows from (among other subjects) public policy and philosophy in making value judgments about what people should do, which was one of the subjects that frequently came up in Socrates' questioning of others. Indeed, he believed this process of questioning was the only true way to arrive at proper values. And there is certainly a great deal to be said for rigorously examining one's value judgments, especially if you are pursuing a career in a heavily value-laden field like the law. For that reason, it is interesting to inquire about how Socratic principles might be applied to legal education and what the benefits of this might be.

Which Socrates?

For the sake of defining the scope of inquiry, and because it is a prolific source for views on education attributed to Socrates, the 'Socrates' I will discuss is from Plato's writings, some of which can be found here.

The Semi-Socraticism of Legal Education

To apply Socratic principles to legal education, we first must consider what Socrates thought of education in general. He believed that knowledge was innate and had to be drawn out of the student by persistent questioning by the teacher. However, the “knowledge” he was concerned with was often abstract and the product of self-examination of one's own assumptions about everything from morals to mathematics. In contrast, the knowledge we acquire in law school generally is the knowledge of techniques and doctrines developed by other people: we are learning about what other people have thought about the law, and the strategies they have used to change it or advocate for a result within it. Our own ideas and values are not the point, at least not at first.

Knowledge of others' views cannot be innate. Nobody is born knowing Cardozo's view on when cost of completion should be exacted in breach of contract cases and when it should be only diminution of value. Given this reality, how can Socratic technique be applied to law school curriculum? One obvious way that many professors use is simply to question the students about the case or doctrine they should have learned until contradictions emerge about that doctrine, and its policy implications become clear. This is still a “drawing out,” but a drawing out of implications of learned ideas rather than our own ideas (whether “innate” or not). Professors frequently use repeated questioning to draw out all issues involved in a specific case or doctrine. I call this semi-Socratic questioning because it uses the method of repeated questioning to draw out the implications of and contradictions in the ideas of judges, lawyers and scholars, but does not necessarily get the students to examine their own values and preconceptions.

From Semi-Socratic to Socratic: how? And why?

A truly “Socratic” legal education would require moving, at some point, from the merely argumentative and discursive to the normative. Or in other words, it would require encouraging students to think about the moral assumptions behind their own opinions of legal issues, rather than simply understanding why other people (like legal scholars or judges) might take a particular stance on a given subject. Socrates might have described it differently, referring not to opinions but “knowledge” of the good.

But even if we reject his belief in an absolute good, we can still advocate that students examine their own ideas of “the good” as it relates to the law. Perhaps it would be difficult to do this in the first year of law school, when students know so little about the law that most of us have little understanding of the moral and policy implications of any given rule or standard. But I would hope professors could manage it after the second year, especially in a smaller class setting. In addition to the standard Socratic questions of “what are the facts” and “what was the holding,” perhaps professors could add “what do you think of the decision, and why” to the list. In fairness, many already do this, even at the 1L level.

Why would such normative questioning be good? Socrates reportedly thought society's rulers should be philosopher-kings because those with such power needed to think long and hard about what was right. Lawyers are not as powerful as these imaginary philosopher-kings in charge of Plato's utopian state, but they still have power, or at least access to power. It is a truism to say that responsibility comes with power. Part of that responsibility must involve thinking about the best way to use one's power, which necessitates rigorous thought about what should be done with power and why. These are all value judgments.

Furthermore, Eben Moglen's definition of lawyering as “changing things in society using words” would suggest that lawyers should think about “the good.” Such thinking helps one get a clear idea about what should be changed, and why, and what sort of strategies would be best for pursuing the type of change one wants. A lack of such thinking raises the likelihood that lawyers will find themselves doing things they don't really believe in, but will realize this too late because they did not examine their normative values. They might only figure out that they were doing something objectionable after having done it and seen its results on themselves and others, at which point the damage may be irreparable. Or they may never fully realize it at all, but simply keep doing their jobs with a feeling of nagging discontent or even desperation. This lays the groundwork for profound misery and a sense of having wasted one's life. Perhaps systematically encouraging law students to think about their views of “the good” would lessen the likelihood of this type of waste: a potential benefit of a truly “Socratic” legal education.

  • This is less an edit than a companion piece. Here you have taken one of the draft's ideas and gone off to develop it more fully, taking account of my responses to the original formulation. There's nothing inappropriate about this, but it does prevent you from demonstrating one of the most difficult parts of the editing skill set, which is the ability to deal sensitively and productively with others' central ideas.

  • You saw half the bearing of my original question about "Socrates" actually meant a character in the dramas of Plato. Indeed, you can skip the attempt to find out who Socrates actually was by assuming he was the fellow Plato is obviously inventing, but I was also warning about the other thing that happens to you in this draft: by the end, "Socrates" actually stands for "anything that asks questions about the good," and the inquiry has become "should law school classes concerning themselves with normative issues?" Permit me to suggest that this is not actually a hard question, and that Socrates has little to do with the reason that this is not actually a pressing problem among the problems making up our urgent need for a through reconstruction of legal education.

  • In other words, the edit took off after an issue that turns out not to be very important, leaving the other ideas of the very interesting draft from which it started—a draft with many problems but capable, as other editors have shown, of being very valuable when fixed—SOL. That's always an occupational hazard, particularly once you conclude that you have the editorial power to wrest loose an idea and run with it: you may lose your sense of proportion, which is one of the editor's most valuable assets in dealing with a writer who naturally tends to love her own goslings and is sure that each of them's a swan.


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r4 - 08 Jan 2010 - 22:31:40 - IanSullivan
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