Teaching Law versus Teaching Justice

I will state my thesis in the way I instruct students to state theirs —  clearly, directly, and with several subparts that connect logically:   A focus on justice-oriented teaching is ultimately harmful to students; it robs them of time to devote to higher educational priorities, it is antithetical to how legal thinking and reasoning should proceed, and it risks imposing a one-sided view of the world onto students.  I appreciate that education can never be perfectly values-neutral, but the values we should mostly be instilling are process-based values and educational values over any subjective view of right and wrong.  Different teachers will balance the goals of teaching values-neutral critical thinking skills and imparting values differently, but our current trend in legal education is, in my view, favoring teaching “justice” in a way that will ultimately be to students’ and society’s detriment.

Students enter law schools with varying exposure to, and practice at, hard reading, organized writing, and rigorous thinking.  Many need a great deal of time to learn these skills, which are essential to not only practicing law, but to forming informed and well-reasoned opinions on any subject.  Our top priority should be educating students so they can form their own opinions.  Reading, writing, and thinking are skills that can be developed in a fairly values-neutral way that benefits everyone, if a professor is committed to the endeavor.  Watching students develop in their ability to articulate their thoughts and fully engage with others’ communication is one of the purest joys of teaching.

The skills needed to read, write, and think well involve reasoning in a deductive way (that often must be results-independent), organizing thoughts into clear frameworks, transitioning adeptly from the abstract to the concrete, fully considering the implications of a given rule or result, and harmonizing assumptions inherent in a particular path with prior ideals and rules.  These skills exist in great tension with the way justice-oriented pedagogy often proceeds – through anecdotal stories that are (rightly) emotionally charged.  This vehicle for teaching justice is antithetical to teaching rigorous, systemic thinking about causality, or imploring students to ensure that their views are internally consistent and fully considered and developed.  A focus on justice, in my view, is easier intellectually and more satisfying emotionally, which is why it is appealing to students (and many professors).  This is not, I believe, the main priority of education, which is to challenge students and make their reasoning processes more responsible and responsive.

Of course, we cannot ignore that the law affects people, in the deepest and most consequential ways.  Our system has been, and remains, flawed and often, unjust, according to any reasonable conception of morality (which can be studied in an intellectually rigorous way, but that is often the domain of philosophy).  Students need to understand the benefits and drawbacks of any particular legal doctrine, judicial opinion, legal institution, or legal regime.  These tradeoffs should be explained to students, who should be permitted to discuss them.  But providing students with material that gives a one-sided account or assumes particular conclusions risks imposing a particular view of justice, which is ultimately a subjective concept.

At a very meta level, this is unavoidable.  Our legal system has several, almost inevitable components.  We believe in the rule of law (or at the very least, we must write briefs and behave as if we do); we understand that the common law develops incrementally, and we elevate the adversarial process.  All of these views can also be challenged, but some amount of acceptance of them is necessary to teach legal doctrine and the case method.  Fortunately, these are process-based values sufficiently far removed from any given result as to compromise students’ learning critical thinking, legal reasoning, and independent opinion-forming.

 

3 thoughts on “Teaching Law versus Teaching Justice”

  1. Extremely important one, and as well correct. Yet, not to forget:

    When teaching is concentrated on objective skills and goals ( especially in legal studies) we face danger of avoiding inspiration and enthusiasm. Students may develop too bureaucratic attitude. As such, it can affect them intellectually. They would lack visions. Would lack enthusiasm. They wouldn’t become creative. Creative and reaching beyond the horizon and breakthrough solutions. They would concentrate on current and well familiar methods and discipline, over ” sky level ” ones.

    How to do it ? Well, too complicated for such forum of course….. Yet, I do agree:

    Without discipline, you can’t win……. But not until the last bit of it. One should leave some space,and more even.

    Thanks

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  2. Lawyers interpret the law and build their cases based upon critical thinking. But in many ways, they are grammarians. They are operating under a construct, the rule of law, that society has agreed to per its social contract. This involves analysis of the laws and how they apply to a given situation, just as translating any language does. Grammar is a rigid process with few correct interpretations. It is the difference between translating Plato and understanding him. A student of Ancient Greek can adequately translate Plato with a few years of study using the basic rules of Greek grammar, and everyone can agree the translation is fine. But understanding what Plato actually means is an ongoing debate.

    But the rule of law is based on philosophical concepts of justice and human rights. These are subjective concepts and involve much deeper analysis than simply interpreting a rule grammatically. It involves higher order thinking to synthesize and critique the foundation on which the present law rests. Some may say it is not worth the effort to go that deeply to form an understanding of the human condition, but the beauty of our legal system is that it is built on a common law principle. This allows for the constant evolution of the law by those lawyers who are able to see past the analysis of the rules to the deeper philosophical questions. Scopes, Roe v Wade, Brown v Board of Education are all evolutions in the law that would not be possible if lawyers were not able to understand the philosophical underpinnings of the rules and push for a change to account for justice instead of simply applying the rule as it stood.

    In fact, “what is just?” is a harder but far more significant question to pick apart than “what does the law say about this particular situation?” “What is just?” has been debated by philosophers for millennia without agreement. “What does the law say about this particular situation?” can generally be resolved at the federal level within a few years, and at the state level even faster.

    By teaching students to debate the very deep questions, the simple analysis of how to apply the law to a given situation is almost a reflex rather than a thought.

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  3. Hi Julie! Thanks for this. I think this is nicely said, and I don’t disagree with any of it (well, I do think you give legal analysis and its depth short shrift, but that aside) — my concern is that we are considering “what is just” in a fairly conclusory way, based on one conception of justice. Many students are not reading Plato — they are attaching emotionally to one conclusory idea of justice and not putting in particularly rigorous thinking on something that is more philosophy than law (although the beauty of the law is that it is interdisciplinary) . So, I agree, we need to always be ensuring our system is just, but because everyone has a different idea of what this means, we would need to more thoroughly tackle these topics. I think we need to balance the time it takes to to do with the time it takes to do other skills, which I don’t think are merely translation — just as learning analogical reasoning, the case method, good, deep reading, etc. that does not involve starting with the conclusion of a particular idea of justice. “What is right” in an unavoidable topic in, say, criminal procedure, but I weave it into doctrine in a way that involves legal, systemic thinking more than what I perceive as more superficial philosophical analysis (given that we are not a philosophy program).

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