Mootz, F J III --- "Vico's 'Indigenous Method' and Legal Education" [2008] LegEdDig 13; (2008) 16(1) Legal Education Digest 46

• Vico’s ‘Ingenious Method’ and legal education

---

Vico’s ‘Ingenious Method’ and legal education

F J Mootz III

83 Ch-Kent L Rev 3, 2008, pp 1–41

A new genre has arisen that chronicles the degradation of legal professionalism and charts the resulting trauma for both lawyers and American society. Beginning with Anthony Kronman’s, The Lost Lawyer: Failing Ideals of the Legal Profession, and quickly joined by Mary Ann Glendon’s, A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society, and Sol Linowitz’s The Betrayed Profession: Lawyering at the End of the Twentieth Century, the critique of law and lawyers has been damning. We live in an age in which the word ‘profession’ has come to be synonymous with ‘job,’ and lawyering is regarded as a set of related tasks that one undertakes primarily to make a living.

Many lawyers practice alone or in small firms, just as many businesses are small closely-held

companies, but there can be no doubt that the emergence of large, far-flung enterprises have indelibly stamped both the business of lawyering and the business of selling goods. This gives rise to the question that these authors find most troubling: is the profession of law following this course because there really is no difference between practicing law and selling goods?

Anthony Kronman provocatively charges that the American legal profession is in a state of ‘crisis’ and ‘in danger of losing its soul.’ He argues that the older model of the ‘lawyer-statesman’ who embodies practical wisdom and character in addition to technical skill has disappeared, threatening ‘catastrophe’ for lawyers and society at large. Kronman characterises the lawyer-statesman as a civic-minded professional who exercises practical wisdom in the service of social goals as an intrinsic part of ordinary lawyering.

Because the capabilities of the lawyer-statesman rest on the development of character over years, they cannot be fully developed ab initio during a three-year legal education. Nevertheless, Kronman contends that the deficiencies in contemporary legal education have played a large role in the disintegration of the ideal. Specifically, he argues that disparate intellectual trends in the academy have undermined the development of professional excellence by taking an overly cynical view (as with critical legal studies) or an overly technical and abstract view (as with law and economics). Although depicted in movies as a form of intimidation and bullying, Kronman insists that the case method trains students that the court’s judgement cannot be accepted on its face, but rather can beprobed, questioned, and revised as students take up each side’s argument in a Socratic dialogue with the professor. Traditional justifications for the case method of teaching neglect what Kronman takes to be its central feature: The ‘way in which it functions as an instrument for the development of moral imagination.’

The student develops moral imagination by being required to adopt one side of the dispute, then the other, and then to critique the manner in which the judge adjudicated the competing claims.

Acknowledging that there is a risk the student will lose her ‘soul’ in this disorienting experience and conclude that there are only sophistic arguments and no truths, Kronman insists that if the case method is properly employed the student should develop a healthy critical attitude. He explains that ‘what the case method really robs them of is their faith in large ideas, and what it puts in place of this faith is a form of scepticism — the tendency to look with suspicion on broad generalisations, to search for the qualifying exception to every abstraction, to insist on the importance of details,’ and that these are salutary lessons for the lawyer-statesman that are necessary for the full range of professional representation and not just for oral argument before judges. The lawyer as counsellor must be able to ‘deliberate with the client and on his behalf,’ and this often demands a ‘process of joint deliberation, in which the lawyer imaginatively assumes his client’s position and with sympathetic detachment begins to examine the alternatives for himself ... ’

The core of Kronman’s claim is that legal professionalism, properly instilled and practiced, is a

public good by its nature. He contends that lawyers conjoin legal practice and social values through the exercise of moral imagination, by means of which the lawyer links the situation of her client to the reigning moral and legal principles of the community.

Kronman’s observations resonate with the observations about legal practice and education that Karl Llewellyn made more than a half-century earlier. Kronman agrees with Llewellyn’s celebration of the ‘grand tradition’ in common law reasoning and his worry that inter-bellum legal education was failing to sustain this tradition. He also acknowledges that Llewellyn focuses on the virtue of practical wisdom, but he suggests that Llewellyn fails to theorise how lawyers develop the character traits required for the exercise of prudence. As a legal realist, Llewellyn was sceptical of the near-dogmatic reliance on the case-method system, which in his day was only 50 years old.

In the manner of Vico’s oration at the beginning of the academic year, Llewellyn famously addressed the entering Columbia law students in the 1920’s with a lecture meant to inspire as much as to orient. Llewellyn urged the students to immerse themselves in law not for the purpose of losing themselves to a technical discipline but so as to recognise that law addresses the entire ‘drama of humanity,’ and to embrace the unity of profession, culture and society. In a provocative essay published in 1935, Llewellyn issued a call for a dramatic re-organisation of legal education in response to the new understanding of law provided by the legal realists. Deriding the Langdellian model because ‘it blinds, it stumbles, it conveyor-belts, it wastes, it mutilates, and it empties,’ Llewellyn argued that legal education must prepare students to lead a full and enriching professional life by educating them about the social context in which law operates rather than just teaching abstract rules.

Llewellyn’s conception of liberal education is broader and deeper than Kronman’s focused

celebration of the case method, and it is unfortunate that Kronman did not attend to the full scope of Llewellyn’s arguments. Kronman’s oversight might be explained in part by the misguided claim that Llewellyn and other legal realists are best read as crude forerunners of the modern law and economics movement, which grounds legal doctrine in empirical truths that can be modelled and tested.

Llewellyn’s searing essay about legal education makes clear that he does not embrace a scientistic view. He posits that the first goal of educational reform is to learn what lawyers actually do, thereby revealing what skills and capacities they must have to fulfil their professional obligations. Llewellyn is purposefully broad in his proposal, noting that many lawyers play important roles in political and civic life, and asking, ‘For decent politics, what training do our law schools offer?’ Even lawyers who practice law do not mindlessly apply rules, and therefore teaching legal rules should never be the primary objective of a law school. Rather, lawyers must utilise a variety of sophisticated skills that coalesce into practical reasoning.

Because he understood the breadth of skills required of a lawyer who seeks to be a competent professional and civic leader, Llewellyn rejects the exclusive use of the case method throughout the three years of law school. Llewellyn urged that after the first year of Socratic dialogue subsequent coursework should involve detailed examinations of legal problems in their full complexity, even at the cost of not covering the ever-expanding universe of legal doctrine.

Llewellyn well understood that lawyers must have a handle on a tremendous amount of legal

doctrine at the time that they graduate, but his solution was to propose reading lists that would guide the students in their self-education of the bare-bones rules. Using the case method to teach doctrine is incredibly inefficient, and using just the case method to teach lawyering skills is incredibly limiting. Kronman might be correct that Llewellyn did not understand the capacity for the case method to develop critical skills and the moral imagination necessary for practical wisdom but Llewellyn did understand that abstract qualities of moral imagination are not enough to equip the lawyer for the challenges that she will face in practice and civic life. Moral imagination is impotent without an understanding of the context in which the phronimos must operate, and this context is suffused with human values as well as empirical realities. Llewellyn’s castigation of the elite law schools for their slavish adherence to the theoretical dogmatism of the case method was grounded in his belief that we must develop a broader theoretical appreciation of law that remains connected to, but not subservient to, practice. He emphasised that the craft of law ‘cries out for the development and teaching of its theory, as it does also for study by doing in light of that theory.’ He named the needed theory ‘Spokesmanship,’ and he derived it from the theories first developed in ancient Greece as ‘Rhetoric

— in essence: the effective techniques of persuasion.’ Too often, Llewellyn argued, Spokesmanship has been cast too narrowly in terms of ‘legal argument’ and ‘advocacy.’

Spokesmanship is a rhetorical practice with both theoretical and practical dimensions that can equip lawyers for the challenges of their profession. Counselling clients is an important feature of Spokesmanship no less than arguing a case, and this art cannot be reduced to simple rules of communicating doctrine.

It is not too difficult to consolidate Llewellyn’s legal realism with Kronman’s celebration of the virtues of the lawyer-statesman. The lawyer-statesman requires a liberal education that provides the imaginative resources to deal with challenges, but this education cannot exist only in the ethereal realm of school-room musings. Lawyers must have a grasp of the depth and complexity of the world, and it is in the law school setting that professors can provide students with the materials to permit them to understand that legal reasoning is neither just an algebraic manipulation of principles nor just a determination of moral philosophy. If Kronman accurately describes the central core of lawyering professionalism, Llewellyn provides essential details for situating this expertise within the world of practice.

The Carnegie Report is an ambitious attempt to re-focus the extensive literature about legal education into a pragmatic call for action that has theoretical depth. The centrepiece of the Carnegie Report’s approach is to reject the false dichotomy between practical training and research that has arisen over the past century as law schools have become just another department of the modern research University, arguing that law schools should foster rich and interdisciplinary research into professional training and performance. With respect to positivist accounts that separate research objectives from underlying practice, the Report wryly notes: ‘Whatever the merits of ‘value-free’ knowledge, they do not transfer well to the idea of ‘value-free’ professionals.’

The Carnegie Report is premised on the belief that the scholarship of teaching and learning, brought to bear through appropriate pedagogical techniques, will permit law schools to fulfil this important function.

The Carnegie Report emphasises that there are no methodological rules — nor can there ever be such rules — for teaching professionalism because lawyers rely on judgement rather than calculation. Judgement is learned by receiving feedback while approximating the modelling done by an expert, which is aptly termed an ‘apprenticeship of professional identity.’ This education is more than simply aping techniques: ‘Much more than ‘rules of thumb’ or the lore passed on in practice situations, today’s best teaching of practice encourages students to develop an analytically sophisticated approach to practice situations.’ In a manner that is reminiscent of Llewellyn’s work, the Carnegie Report contends that judgement requires a liberal education in ‘ethics’ — in the broadest sense of the term as used by the ancient Greeks to mean an acculturation to a normative lifeworld — and that legal education’s ‘signature pedagogy’ of the Socratic case method cannot accomplish this goal alone.

This perspective is brought to bear by offering specific recommendations to improve legal education. First, the Carnegie Report urges a reduction in the use of the case method of instruction.

Kronman celebrates the power of the case method to awaken the moral imagination of students, but the Carnegie Report finds it to be an overused tool for teaching black letter doctrine in the first year of law school that actually deadens the necessary imaginative capacities of students and therefore requires a correction in the final two years of law school. ‘The danger for second- and third-year students is that the analytic blinders they have labouriously developed may never come off when they deal with the law or with clients.’

The second proposal is the corollary of the first: that law schools should employ the ‘complementary pedagogy’ of clinical and simulation training to a greater degree.

I have selectively drawn from Kronman’s book, Llewellyn’s essay and the Carnegie Report to articulate the nature of the crisis in contemporary law and legal education. Each provides rich detail and presents more themes than I have addressed here, but they reinforce a shared concern about legal professionalism. Kronman’s celebration of the case method of instruction for awakening the imagination and providing students with the means to develop a creative and critical perspective on law resonates, even if it is necessary to remind oneself that class discussions all too often involve a ‘Socratic monologue’ that fails to live up to the promise identified by Kronman. The ability to adopt different perspectives on the same case — first arguing on behalf of one side and then the other side – is an important lawyering skill, but Kronman properly emphasises that this practice reinforces a deeper epistemological perspectivism that can reorient the student’s view of the world.

Llewellyn’s earlier work, reinforced by the Carnegie Report, adds a vital dimension to the account by remaining sceptical about the power of the case method alone to educate legal professionals. Interestingly, both assume that the primary justification of the case method approach is to tease out the operative legal doctrine. Neither engages with Kronman’s focus on moral imagination and developing a more capacious understanding of the world; rather, they regard the case method as a useful tool that quickly outlives its usefulness by the second year of law school. What Llewellyn and the Carnegie Report add to Kronman’s approach is an insistence that educating legal professionals requires something more than cultivating Aristotelian virtues through in-class Socratic dialogue. The wisdom and prudence of the ages will be of no use if the lawyer is unable to construct legal arguments in particular contexts and with an understanding of their real-world effects.

Law students should not be educated only through Socratic dialogue because the law is not simply a matter of well-honed dialogue. Llewellyn presciently argued for more clinical training and even a post-graduate apprenticeship, but within the walls of the law school he insisted upon the need to develop more realistic teaching materials that deepened the superficial world of the appellate opinion with context and background. In a complementary vein, the Carnegie Report emphasises the need for students to model experts engaged in the practice of law through structured clinical experiences that permit reflection on the practice and build the student’s capacity for bringing together legal knowledge, skillful implementation, and prudent judgement.

We can add depth and complexity to the contemporary arguments regarding legal education by moving beyond general references to ‘practical reasoning’ and learning through ‘expert modelling’ and examining the broader epistemological and ethical issues at stake.

Vico delivered On the Study Methods of Our Time in October, 1708 at the commencement of the academic year. The scope of this short address is breathtaking: with the Cartesian ‘critical method’ rapidly gaining ascendance in intellectual circles, Vico argued on behalf of the humanistic tradition. Vico’s defence is neither ill-informed nor atavistic; he fully appreciated the power of the Cartesian method, but he also anticipated that its power would prove to be overbearing. He conceded that we must embrace the new rationalism, but that we should do so only without sacrificing wisdom.

Vico begins his oration with a reminder that all human knowledge is partial and fallible, and therefore that we should always be ready to assess our beliefs and correct them. However, he exhorts his audience to recognise that Cartesian radical doubt undermines not only false beliefs that should be discarded but also beliefs grounded in the probable, without which we could not live. The critical method undermines the cultivation of common sense, which subtends both practical judgement and eloquence, thereby restricting knowledge to an arid and abstract intellectualism. This is particularly harmful because the art of making arguments through an inventive use of commonplaces ‘is by nature prior to the judgement of their validity,’ and so the art of rhetoric should be granted priority rather than being suppressed. It is important to stress that Vico does not seek to abandon the Cartesian method and return to ancient rhetoric. He counsels a prudent understanding of the role that each can play: ‘a severely intellectualistic criticism enables us to achieve truth, while ars topica makes us eloquent. ... Each procedure then has its defects. The specialists in topics fall in with falsehood; the philosophical critics disdain any traffic with probability.’

Rhetoric is necessary just because life is uncertain. The Cartesian philosopher vainly seeks to determine the truth of the matter and therefore is impotent in the face of a pragmatic question of choosing between two proposed courses of action. In contrast, one who is capable of determining the relevant arguments ‘for and against’ the proposed action on the basis of the probabilities of the given circumstances and is then able to persuade others as to the best approach exhibits a wisdom that is superior for this task than the more limited scope of definitive truth.

Vico provocatively compares the ability to ‘grasp extemporaneously’ the lines of argument to ‘reading the printed characters on a page.’ We speak colloquially about ‘reading a situation,’ but Vico is suggesting that we take this metaphor to a deeper level. The abstract characters that form a written language are capable of generating an infinite number of expressions as speakers combine them in new and inventive ways over time. Reading social situations is not an unmediated perceptual facility; rather, it is an art that develops over time as one develops familiarity with the commonplaces that can be deployed in creative ways.

Rhetoric has temporal priority over philosophy because one must first locate the means of persuasion within a given situation before it is even possible to test the reasoning with philosophical criticism, but this is not to suggest that all prudential decisions can or should be subjected to second-guessing by the philosopher. Many of life’s issues simply are not amenable to philosophical analysis in the Cartesian tradition; instead, they call for mature judgement that Vico identifies with the ancient rhetorical tradition. The ingenuity of finding similarities among seemingly different factors, the imaginative capacity to create a new understanding of reality, and the prudence to choose appropriately when the matter is not subject to calculation: these are the humanistic capabilities that Vico championed despite the vigorous Cartesian criticism that their uncertain basis introduces the possibility of error. The sage must be committed to truth, but also ready to act when the frailties of the human condition preclude an analysis that demonstrates the truth of the matter.

These considerations lead directly to Vico’s recommendations for organising education. Building

on the oration he delivered in the previous year, Vico insists that students must first develop their rhetorical skills before being introduced to philosophical criticism. Vico fears that the student might lose forever her capacity for ingenuity, imagination and eloquence if she is exposed to the abstract intellectualism of the Cartesian method without first cultivating the humanistic arts.

In a detailed discussion of law and legal education Vico brings his thesis to bear in very concrete

ways. Beginning with the presumption that it is counter-productive to organise a practice that depends on common sense into a system of precepts, Vico recounts the emergence of law as a distinct discipline. In modern times, the law has expanded beyond the stark written text and enveloped within itself the moderating force of equity as a matter of interpretation rather than eloquence. The law itself became justice, which was both a positive development and a loss: the law has become directly equitable, but we have also lost the connection between law and eloquence, commonly understood as wisdom speaking appropriately to the given situation.

It should be apparent that Vico’s concerns are very similar to the concerns raised by a number of contemporary authors, including Kronman, Llewellyn, and the Carnegie Report.

Vico’s work is pioneering because it charts a way of integrating this modernising development with the broader understanding that we cannot eliminate entirely the myths and prejudgements that subtend our rational faculties.

The ambitious scope of Vico’s thought makes clear that he regarded the issues raised in his oration to be linked intimately to fundamental philosophical questions. This is perhaps best revealed by returning to Vico’s metaphor of the educated student being able to ‘see’ the best line of argument in a given situation. A rationalist would misinterpret Vico’s prescription as suggesting that one first list the possible lines of argument, ‘view’ them, and then deduce the correct answer for the situation. In the legal setting, this misinterpretation is enacted by students who enter the final exam with an outline of the legal doctrine that they have studied and then proceed to recite the rules. The mechanistic application of a list of solidified doctrines is not a genuine ‘seeing’ of the situation in Vico’s sense, but rather a ‘cognising’ or ‘calculation’ of the situation.

Vico’s ‘ingenious method’ — studying topics and learning how to persuade others in a situation of uncertainty — is a recommendation to use one’s common sense to imagine new solutions to problems, to ‘see’ a new path of persuasion by drawing connections that are not already recognised. A well- chosen metaphor does just this, carrying meaning from one situation to a new situation, seemingly instantaneously as if we suddenly see something that previously had been hidden from view.

Exercising the imagination through topical argumentation is necessary because there is no substitute for the accumulation of experience. One cannot become prudent by deducing answers to practical problems; one becomes prudent through the exercise of judgement based on ‘insight,’ which is really a ‘new sight’ or ‘broadened sight.’ It is a question of one’s capacity and experience, rather than one’s cognitive achievements, that is at stake; Vico stresses that we can improve this capacity through proper education.

Vico’s oration relates to law directly, but not superficially. Seen within the context of his life’s work, the oration is premised on a view of knowledge and human understanding that confronts the Cartesian critical approach at the deepest philosophical levels rather than just suggesting that different educational methodologies that might be employed. Much of the contemporary discussion about reforming legal education has tended to collapse into discussions of methodology without considering the philosophical presuppositions of those methodologies. Kronman, Llewellyn and the Carnegie Report all point to a broader understanding of human understanding, and Vico’s pathbreaking work lends depth and sophistication to these efforts.

There are at least three senses of the term ‘rhetorical knowledge’ relevant to this article. First, one pursues knowledge of the art of rhetoric so as to improve one’s ability to identify the productive lines of argumentation in a given situation and then to persuade one’s audience of the appropriate course of action.

The expansion of the student’s imagination permits the student to ‘see’ the lines of argument that cannot be deduced from the tradition, precisely because this ‘seeing’ requires the student to perceive similarities between ostensibly different concepts. The common law is replete with examples of just this capacity, and it is for this reason that the case method should remain an enduring element of legal education: the student can see an expert (judge) in the common law tradition to find a new constellation of arguments that resolve the case before the court, and then the students and expert (professor) can assess this result from the vantage of the present day, calling upon their own imaginative recollection and development of the common law.

There is another sense of ‘rhetorical knowledge’ pertinent to law. When lawyers argue and judges reason about matters that require deliberation rather than demonstration, the result of these activities is properly termed ‘rhetorical knowledge.’ Rhetorical knowledge is capable of sustaining legal practice as a reasonable — even if not thoroughly rationalised — social activity. Although rhetorical knowledge is a social achievement rather than a univocal demonstration, it is properly characterised as knowledge. We can know the requirements of justice in a given case and we can know the solution to a particular math problem; it is just the case that our knowledge of justice is rhetorical rather than logical.

This is not to discount the vital importance of logical-empirical knowledge, but rather to preserve the validity of those situations in which we must operate on the basis of rhetorical knowledge.

The first two senses of rhetorical knowledge are explored by Vico and joined together in a manner that can provide guidance to those seeking to understand how we might better educate lawyers to fulfil their social roles. Legal education must provide students with rhetorical knowledge in the sense of a knowledge of rhetoric. Unfortunately, modern legal education tends to push this knowledge to the periphery while treating legal doctrine as a logical system of concepts to be manipulated, even if this is not the conscious goal of the curriculum or individual professors. Too often professors engage in a ‘Socratic monologue’ that leads students to focus on deducing results from doctrinal ‘rules.’ Vico explains why it is so difficult to break this prejudice: the education of students has stultified their capacity to see new arguments based on probabilities in situations of uncertainty, leaving them with a rather barren conception of reasoning. It may not be wholly within the power of law schools to alter this situation, but certainly the three years of education can better support the kind of educational growth that Vico described.

There is a third sense of ‘rhetorical knowledge’ implicated by the fact that this article claims to convey knowledge about law and legal education. If lawyers and judges have no recourse to fixed and universal criteria of judgement and must engage in an ongoing rhetorical practice suspended over an illusory syllogistic safety net, it would appear contradictory for me to assert that I have developed a theoretical key for unlocking the logic of this practice. An observer seeking to evaluate or criticise a rhetorical event is no less enmeshed in an interpretive-rhetorical horizon than those whom she is studying.

Pragmatic- minded lawyers and educational reformers will ask, ‘where does the attention to Vico lead us in dealing with the pressing problems of legal professionalism?’ I offer some tentative suggestions for how a Vichian appreciation of our current dilemma generates a different point of view that effectively reframes the debate. First, by attending to Vico’s lament I believe that we are forced to confront the reality of rhetorical knowledge in the third sense: namely, that our theoretical and philosophical efforts to articulate the rhetorical nature of human interaction are themselves secured, defended, challenged and revised in the realm of rhetorical argumentation. Recognising that we can never achieve timeless knowledge of the truth of the human condition but can only join in the process of collectively shaping that reality is critical for avoiding the rationalistic and scientistic traps into which those who think about the practice of law all too frequently fall.

With this understanding of the significance and depth of rhetorical knowledge in the third sense established, rhetorical knowledge in the first sense becomes the educational methodology that fits with the task of building the legal profession. Vico regards the topics as an ‘ingenious method’ for developing rhetorical knowledge, but of course this is a method that can never be reduced to a methodology. The ingenious ‘method’ is just a structured effort to develop the capacity to ‘see’ a new path of inquiry or argument, the imagination to picture the new world that would result, and the rhetorical skills to bring others to share this image and work together to realise it. Vico’s celebration of the ‘ingenious method’ of the topics is a call to adopt pedagogies that foster ingenuity.

The value of the case method has not been realised in legal education, but it provides the potential to serve the salutary purposes identified by Kronman. The narrative dimensions of law are revealed dramatically by assessing the highly stylised narratives of court opinions (both trial and appellate) and imagining how these cases might be re-presented. Llewellyn’s call for depth rather than breadth is pertinent here: case studies should begin with a reported opinion but then delve deeper to provide the students with the means of identifying how the case was shaped by the legal process and how that shaping was not logical, deductive or empirical, but instead was a function of imagination and rhetoric.

After the basic vocabulary of black letter law and human interaction has been established in the first year, students could then study the kinds of rich case histories advocated by Llewellyn to achieve the goals identified by Kronman, supplemented with a healthy mix of simulation and clinical courses.

This is not to suggest a trade school model where students are taught how to format briefs according to the rules, how to file paperwork in the county courthouse, and how to draft certain legal documents. To the contrary, a Vichian approach to legal education would require interdisciplinary work to an unprecedented degree.

There clearly are substantial, even if substantively venal, barriers to adopting a Vichian reorientation of legal education, even if the status quo genuflects in the direction of increased clinical experience as a worthy goal. At the most general level, the inertia of most persons and organisations is such that a call to reorient thinking in fundamental ways is almost always doomed to failure.

Although the vast majority of students will become practicing lawyers, the research conducted by the professors often is targeted to academic audiences rather than lawyers and judges, and so it remains disconnected from the few hours spent by the professor in the classroom.

Under these conditions, seriously arguing that law professors ought to endorse and adopt a Vichian approach to legal education in their individual and collective efforts would amount to a call for many law professors to change their professional identity in a significant manner.

The Carnegie Report emphasises what Vico knew well: cultivating professional qualities in an educational setting is not a rejection of research and scholarship; to the contrary, this orientation requires vigorous research and scholarship in a new vein. Law professors must model professional behaviour and lawyering skills, but this is not a matter simply of exhibiting their experience in practice (which often is atypical and brief). Instead, the modeling must be informed by rhetorical knowledge in all of its senses, and the scholarship of teaching and learning must play a role in the continual education of professors.

The second specific obstacle to reform is the other side of the educational equation: students apply to law school without adequate preparation for the study of law in the manner contemplated by Vico. Education generally has become fragmented, specialised and built on the model of Cartesian truth. The law school does not operate within a unified University dedicated to the cultivation of common sense, prudence and eloquence as a prerequisite to technical training. The university has banished rhetoric to elementary composition courses taught by itinerant faculty or to marginalised departments of communication studies; the law school has banished rhetoric to a first year writing course that is too often taught by faculty who are regarded as less important than the research faculty. It should come as no surprise that students entering law school and beginning their studies are not prepared for a Vichian education even if it were being offered to them in a rigorous manner.

With regard to the prospects for legal education there is a fine line between being a pessimist and being a realist. The Carnegie Report may at long last bring the brewing discontent of the last century into focus and motivate change, but it is easy to lend one’s voice to Vico’s lament. Vico situates the contemporary critique of legal education in a much broader intellectual current that adds depth to the project and cautions against being satisfied with feel-good slogans and curricular tinkering. Vico identifies a great and honourable calling to the law, one that we should not hesitate to embrace despite the apparent long odds. Too much is at stake. Rejecting the autistic wisdom of the rationalist and empiricist traditions of modernity is a matter of grave import, Vico tells us, not only for the legal system but for civil society. Moreover, what ‘Vico experienced in his age as matters of intellectual dispute between the Cartesian position and his own have become life problems in our contemporary age,’ making his call for change all the more urgent in our day. The time to heed Vico’s lament is now. Professors of law unite in rhetoric so that, at long last, you can see that you have nothing to lose but your Cartesian chains!