Tan, S H --- "Legal education, philosophy and values consciousness of the law student" [2009] LegEdDig 12; (2009) 17(1) Legal Education Digest 42

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Legal education, philosophy and values conciousness of the law students

S H Tan

15 (4) Inter J Learn, 2008, pp 197–203

The value of teaching philosophy in law schools has been the subject of considerable debate. Few law schools require a course in legal philosophy, and detractors in academia and practice bemoan its abstraction and doubt its utility. Unsurprisingly, while commercial law electives do not need a reputation for being well- taught or interesting for good enrolment, anecdotal evidence suggests that the average law student is not inclined towards a legal philosophy elective due to its perceived difficulty and a fear that law firms do not see its worth. Such disinclination towards a subject that allows critical reflection on ideals of law seems counter-intuitive as the student should be concerned about the worth of the legal system within which she serves in future. It is, however, understandable in light of pragmatism: while understanding ideals is possibly assurance against a wasted life, it is technical expertise that is immediately employed in the practice of law.

Law schools have a special responsibility to teach legal ideals to counter the tendency in legal education to construct boundaries that delineate what is properly ‘legal’. These boundaries, described in the next part, are often unquestioningly accepted, but may stem from contentious assumptions about law and the legal system. Only when students’ hearts and minds are critically engaged on fundamental questions and what they have hitherto accepted as givens may they meaningfully understand their role and purpose in the larger legal process.

Some academics suggest that legal education insidiously constructs boundaries of law in the minds of law students as they learn, from Day One, that legal reasoning is different from moral or political discourse. This may be because the predominant view of law in law schools tends to be a positivistic one, according to which law and morals are separable. Students taught by academics in this vein believe that law comprises rules to be learnt, but ‘little do students who operate in this fashion ... realise they are in fact utilising one conception of legal theory, viz., positivism’.

Students are socialised into a lawyer’s role when, in most of their courses, they are taught legal rules ‘plucked out of’ cases or statutes, sometimes without regard for general underlying principles or a demand for coherence amongst the rules. When students are taught to distill rules from cases, they learn to abstract objective generalisations of facts. When it is suggested to them they must be ‘objective’ rather than bring in their own moral values, they acquire a sense that legal reasoning is objective and special, different from controversial moral reasoning which is subjective and which they soon learn to banish as emotionality from their legal thinking. Soon, they put on moral blinders, define ‘moral dilemmas in legalistic terms’ and ‘(solve) them with reason by dispassionate answers that fit into some legal classification governed by some legal principle’. A sense of omnipotence is acquired due to the pervasiveness of law and the seeming efficacy of legal analysis in presenting solutions to all problems that law touches, in contrast to the relative indeterminacy of moral discourse.

The very ideal of advocacy and the nature of the adversarial system sometimes further desensitises the students to their own moral beliefs or opinions. The basis of advocacy, that truth will emerge if advocates pit their skills of persuasion against one another, sometimes ends up fostering an indifference to truth, with consequences on one’s character, as one is taught to suspend one’s judgement. In mooting classes, for example, students are often assigned a controversial legal problem in which a question of law arises and draft a memorial arguing for a particular position on the controversial point of law. Assigned a particular case, competitive students have to make the best argument for their case. Students recount that in some of these classes, after the written memorial has been submitted and assessed, to their surprise, they are assigned the opposing stand for their oral argument, a second component of the moot program. Such training is worthwhile from the point of view of learning argumentative techniques, but the effect that ‘switching sides’ has on the student who worked hard on her case and came to believe in the strength of her arguments is profound. At an early stage of legal training, because conviction is helpful when one presents arguments, the good student may try to convince herself of the strength of the opposing case to which she has now been assigned. While seeming to train one in objectivity, the other side of the lesson that a student subconsciously imbibes is that it does not pay to feel too strongly about one’s case, for one could end up on the other side, and equally strong arguments may be mustered on either side. The result may be a sense of the relativity of truth.

As one’s character is determined in part by what one cares about, a cynical carelessness to the discovery of truth in aspects of social life that law encompasses may develop.

The Socratic method, a favoured mode of instruction in law school classes and in pop culture described in Scott Turow’s One-L and epitomised by the notorious Professor Kingsfield in the movie Paper Chase, may, in the hands of the unskilled, also lend to the fostering of a belief in relativity of truth. In the Platonic dialogues, Socrates elicits views of his interlocutor on a particular subject, puts to him further questions to elicit what turns out to be an elaboration of the same subject, and then challenges his interlocutor about any possible contradiction of the first opinion evinced by his further responses to Socrates’ questions. The aim is to help the interlocutor assess his commitment to his first judgement, or reformulate it where necessary. An unskilled teacher may lead the student to greater confusion or relativism by insufficient direction or an inability to point out contradictions which show that several of the student’s beliefs may not be consistently embraced. The student is left thinking that all positions are equally plausible.

With the obstacles mentioned, the inculcation of values falls often on the shoulders of the teacher of professional ethics. This, however, is problematic. In the first place, a course in professional ethics may not be compulsory, but left to the professional bar. Such inculcation of values is less effectual when it occurs at such a late stage of one’s legal education, and when it is taught in such an isolated manner. Second, even if taught earlier, while a legal ethics course apprises students of ethical dilemmas, if it focuses primarily on existing codes of professional ethics, working around rules and hypothetical scenarios and the emphasis on sanctions for breach arguably do little to inculcate in students sensitivity to ideals underlying the legal system. These courses may ‘make virtually no effort to develop or present a theory of responsible professional behaviour and are not organised around a coherent theme or explicit moral philosophy’. Professional ethics becomes another course in the curriculum, where ethical problems are resolved by the same legal thinking through the application of rules of a code. Even the organisation and content of the materials used in a course of this nature assumes that ‘the professional role of the lawyer is morally defensible — that legal thinking in general and the ideology of advocacy and the adversary system in particular are socially and ethically justifiable’. Students blindly accept professional rules. Just as their creativity in working around rules to achieve desired outcomes for clients is rewarded in substantive law courses, in legal ethics courses too students may be accustomed to learn to comply with the letter, rather than the spirit, of the law.

Legal philosophy allows students to examine the value of law and the ideal of the legal system. What students acquire in legal philosophy acts as ballast against the ‘acculturating’ effect of legal education. A well-designed legal philosophy course challenges students to reconsider false assumptions, and bring their own values into their assessment of the law and counselling or advice of the client in two ways: First, through content that provides alternative ways of looking at the law and sensitises the students to the role of law in society and law’s impact on real lives and people; second, through pedagogy that engages the students’ own comprehensive worldviews and awakens the students to the potential of their roles as active citizenry and agents of change in a deliberative democracy.

A good legal philosophy course that enables students to reconstruct boundaries of law must challenge students to consider what they had accepted as given: law’s legitimacy and its relation to other phenomena such as power, morality, justice and reason.

Some fundamental questions that students must be asked, which are not asked in many other courses, include the following. How is law different from power exercised by a group of bandits? What characteristics must be possessed by law for there to be a meaningful distinction between rule of law and rule by man? Are manifestly unjust laws really laws? Or must laws meet a minimum moral standard before they acquire their legal status? Is justice always done when officials follow existing rules, or is it done in some cases when officials refuse to follow some rules? What is the proper justification of a legal system in a postmodern pluralist world: That it serves a common good, or that it allows individuals maximum autonomy? Should laws enforce controversial moral beliefs? For example, why should abortion be allowed when some believe it is murder? Why should polygamy be prohibited when it is allowed by some religions? These questions heighten students’ consciousness of law’s value in society in guiding the behaviour of subjects of law in a manner that respects their dignity. Such value is achievable only if law bears characteristics which distinguish it from arbitrary power. Students who understand such concerns are equipped to practise law in a manner which serves justice and respects the dignity of subjects.

In the National University of Singapore, law students may take an upper year elective in Jurisprudence, and are required to do a course called Introduction to Legal Theory in their first year. As the introductory course is taught when students know too little law to appreciate broad sweeping descriptions of the law by different schools of legal philosophers, my course is designed thematically. This, in contrast to exploring schools of legal philosophy such as legal positivism and natural law theory as is conventionally done in jurisprudence courses in other institutions, allows a direct exploration of law’s ideals. Current and familiar contexts are employed as launchpads to engage the students by presenting them with practical situations in which theoretical questions arise, thus explicitly integrating theory and practice.

The course, taught over 12 weeks in three-hour weekly seminars, is divided as follows:

• Legal education, the construction of boundaries of law and the uses of legal philosophy (Topic (i));

• Perspectives of law: the nature of disagreement about law and theories about law (Topic (ii));

• The rule of law (Topic (iii));

• Law, justice, morality and liberty (Topic (iv));

• Foundations of the legal order (Topic (v));

• Adjudication and legal reasoning (Topic (vi));

• The constitution and jurisprudence (Topic (vii)); and

• Role of lawyers and professional identity (Topic (viii)).

Topic (i) invites students to step back and look at their legal education thus far, to consider how legal reasoning and discourse in classes have shaped their view of law. Students examine the impact of their personal (oft unarticulated or unknown) philosophy about law on the kind of arguments they make in substantive law classes. Students read two cases in Topic (ii) — one involving judge-made law, and another involving the interpretation of legislation. Through scrutinising arguments made by the lawyers and decisions reached by the judges in the majority and in the dissent, students consider the nature of disagreement about law. What do lawyers or judges mean when they think a particular case should be decided one way rather than the other? If the sources of law are statutes and decisions of the courts, why would participants of the legal enterprise argue about what the law is on a particular issue? Is this not a question that could be easily resolved by opening statute books or law reports? From this, students are introduced to two major contending theories about law — legal positivism which suggests that what law is is determined by a test adopted by a particular society or its officials (for example, official practice may recognises valid all laws that conform to the constitution of the country), and natural law theory which suggests that law conforms to fundamental principles of morality or justice. Students are shown how differing views in real cases hinge on the definition of law which lawyers and judges subscribe to.

By this stage of their legal education, students are likely to have heard of an old adage that even the king is subject to the law. In Topic (iii), they examine characteristics of the rule of law, in contradistinction to the rule of man. They consider a sceptical (and also Marxist) view that law is politics and serves to perpetuate existing hierarchies and further the interests of the rulers, and are invited to reflect on their experience to determine if this is true.

Topic (iv) is a major segment of the course, in which students consider law’s underlying values of justice and morality. Popular notions of morality (such as the subjectivity of moral opinions) are examined, drawing upon the students’ pre-law school experience. Students are asked to reflect on the connection between law and morality, and the problems this poses in a postmodern pluralist world in which moral opinions differ. Whose morals should law be connected with? They explore the manner in which existing laws enforce controversial moral notions and impinge on the liberty of the subject, for example in the case of criminal laws prohibiting consensual sexual acts (adult incest, bestiality, and homosexual acts) which apparently harm no one. Students examine whether the legitimate basis for law is the enforcement of moral values, the protection of the moral environment, or to prevent harm to others. Students also explore the relationship between rule-following and justice, and consider whether it is always just to apply all rules (particularly, unjust ones). What injustice is done, for example, if a merciful judge deviates from an unjust law that requires him to put to death a person on the basis of race alone, and lets off one member of the race who has been brought before him? Further, with the case study of the laws of the Nazi regime, they analyse what lies behind the notion of an obligation to obey the law, and how it arises. They explore the notion of fairness — whether it consists of treating people equally and whether that encompasses affirmative action and so on. Even visceral reactions are valued as students are invited to reflect on whether such reactions are rationally justifiable and whether particular responses to specific situations stem from more general principles that constitute principles of justice.

Students are invited to examine the legitimate foundation of the legal order in Topic (v). They consider whether the legal framework should respect individual autonomy or promote particular ideas of the good life, and the type of reasons which may be given in the public square for public decision-making. To contextualise abstract questions, I use the example of laws regulating abortion. By setting students the simple task of articulating reasons they would use or have heard others use to justify prohibiting or allowing abortion, students experience a debate in real time. They are then required to take a step back and assess if each reason cited may be comprehensible to interlocutors with different worldviews.

Topic (vi) focuses on the practice of adjudication. In view of the fact that many law students will spend some of their lives arguing before judges, they are asked to consider whether there is a right answer that the judge must arrive at, and the source of such a right answer, if any. Is it found within the legal institutions and materials, or does one have to resort to an extra-legal morality? Students consider critical perspectives of adjudication such as the view that how judges decide depends on what they had for breakfast. Their assumptions about truth and justices they argue before a judge are unpacked.

Topic (vii), students learn about constitutionalism. How the preceding topics fit in with the existence of a text in the country which purports to be the supreme law of the country is examined.

Finally, in Topic (viii), students relate all they have learnt to their future role as a lawyer. How would their view of what law is impact the way they practice law and their conception of the professional duty of the lawyer? They are asked some final questions: Can a good lawyer be a good person? Can a good person be a lawyer? To what extent must the lawyer do for his client what he would not even do for himself? Students examine how the dominant metaphor of the lawyer as a ‘hired gun’ has shaped professional identity, and consider alternative metaphors, such as the lawyer as a healer of conflicts or a defender of justice.

While every good philosopher has an awareness of her personal worldview, my mission is not to impart mine, but to challenge students to formulate theirs. In terms of pedagogy, I have found the Socratic techniques of the dialectic and the elenchus helpful.

I hear what my students have to say on a particular subject, put to them further questions to elicit an elaboration of the same subject, challenge them about possible contradictions, and prod them to reassess their commitments or reformulate their views. With the chosen themes, the end result is that a keen student forms her own view about law’s relation to justice and morality, and how professional practice sits with her own comprehensive views about life in general.

In official student feedback on the course, students have appreciated the employment of culturally current tools to teach abstract philosophical issues, as they gain real world perspectives of theoretical debates covered in class. For example, I used clips from movies such as Schindler’s List (1993) and Emperor’s Club (2003) to illustrate the ideas of arbitrary power and fairness respectively.

A significant challenge for a teacher of a course in which people hold many differing viewpoints is to ensure that those who perceive themselves as dissenting, whether from the majority of the class or the teacher, would be comfortable enough to speak up. Deliberate effort is made to refrain from approving or disapproving of particular views in a domineering manner. By providing a congenial environment in which every student feels free to express her viewpoint because she is valued even as her viewpoint is challenged, each student has the best opportunity to articulate and consider the weaknesses of her own position, and reformulate it if necessary.

The best achievement of a legal philosophy course, to my mind, is the student’s final appreciation of philosophy’s limitations — an understanding that theory is not the be-all and end-all of an appreciation of legal ideals. The classroom experience must translate into the daily thought-lives of the student. When the student is empowered in debates in the public square, when philosophy infiltrates into activities unrelated to law, these may be said to be the first fruit of values education, the ripening of which lies in the translation into daily consciousness and social action beyond legal education. The citizen graduates from law school more aware of her own philosophy and ready to engage in shaping laws in a deliberative democracy. The advocate does not unthinkingly accept the law but questions what purpose it serves, refusing to meet only the minimum standard of professional codes of ethics or attend only to the letter of the law in representing clients. The person born of such a baptism is one who effectively and continually translates legal ideals into the reality that governs the subjects of law.