Ian Ward - Revista

(2009) 3(1) Law and Humanities 87112
Legal Education and the Democratic Imagination

Ian Ward*
The subject of legal education has long attracted critical debate. Much of this has often seemed to veer towards the apologetic, even depressive.1 There is no reason why this should be so. Nothing should matter more, at least for those of us who work in the legal academy. The past, present and future of legal education should be a matter of ongoing critical contemplation.2 And controversy too.3 This article, inspired by an invitation to give a plenary address at the UKCLE Concepts of Culture in Legal Education Conference in January 2009, is intended to be a further contribution to this conversation. Moving as it will around two of the defining Questions in legal educationWhat is a Law School for? and What should a Law School be teaching?much of what follows may seem rather familiar. If there is any greater originality, it is leant by prejudice; a particular view as to the deeper responsibility of teaching law in a modern liberal democracy, and a collateral supposition as to how this might best be done.
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Newcastle Law School. For this slightly apologetic tone, see W Twining, Context: Enlarging a Discipline (Oxford University Press, 1997) 8788, and also his comment on the relative isolation and invisibility of law as an intellectual discipline in his Blackstones Tower: The English Law School (Sweet & Maxwell, London 1994) xix and 27, observations which import a similarly furtive tone. Fiona Cownie confirms the relative paucity of debate and research on the subject of legal education in Searching for Theory in Teaching Law in F Cownie (ed), The Law School: Global Issues, Local Questions (Ashgate, Aldershot 1999) 547, and also Legal Academics: Culture and Identities (Hart Publishing, Oxford 2004) 3334, noting the exceptional nature of Twinings interest. For a further comment on the overarching lack of active interest in legal education amongst many law teachers, see P Birks, Editors Preface in P Birks (ed), What are Law Schools For? (Oxford University Press, 1996) xiv. The particular tendency to depression, particularly amongst those who retain a fonder remembrance of an idealised liberal legal education, is noted in R Burridge and J Webb, The Values of Common Law Legal Education: Rethinking Rules, Responsibilities, Relationships and Roles in the Law School (2007) 10 Legal Ethics 74; The Values of Common Law Legal Education Reprised (2008) 42 Law Teacher 265; and A Bradney, Conversations, Choices and Chances: The Liberal Law School in the Twenty-First Century (Hart Publishing, Oxford 2003) 1519. See O Kahn-Freund, Reflections on Legal Education (1966) 29 Modern Law Review 121. As John Dewey, to whose ideas we will turn in greater depth shortly, observed: All social movements involve conflicts which are reflected intellectually in controversies. It would not be a sign of health if such an important interest as education were not also an arena of struggles, practical and theoretical. See J Martin, The Education of John Dewey (Columbia University Press, New York 2002) 463, citing comments made in an address to Kappa Delta Pi which eventually laid the ground for his influential Experience and Education, published in 1938.
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I The two Questions are of course intimately related. It can only be expected that they should be. Arguments over what should be taught in a Law School tend to sharpen the broader question of purpose. Indeed, one of the pervasive concerns is the thought that the second QuestionWhat should we be Teaching?serves to constrain the firstWhat is a Law School for? This anxiety is shaped, in large part, by the intrusion of professional accrediting bodies, and the obeisance that they demand.4 The fear, put bluntly, is one of antiintellectualism.5 A Law School, it is suggested, and rightly, should aspire to be more than a mediocre nursery school for the profession.6 The more recent rise of transferable legal skills across the sector has served only to exacerbate concerns.7 But the primary concern relates to the core, the rationale for which appears to be largely lost in the mists of time.8 Certainly the core was designed long ago, and it rarely seems to change.9 And, like any history, it is as much a matter of myth and ritual, a rite of reproduction, as Peter Goodrich puts it, a supplication to past prejudices.10 And power too, of the sclerotic Kafkaesque
For commentaries, see Twining, Tower (n 1) 1626, and more stridently also B Puchalska, Legal Education: Professional, Academic or Vocational? (2004) 4 European Journal of Legal Education 1922. 5 For this allusion, see W Wilson and G Morris, The Future of the Academic Law Degree in P Birks (ed), Reviewing Legal Education (Oxford University Press, 1994) 106, 6 Twining, Tower (n 1) 85. See also Burridge and Webb, Rethinking Rules (n 1) 83. 7 For a strong statement addressing the place of skills training in the HE sector, see R Barnett, Realizing the University: In an Age of Supercomplexity (Open University Press, Milton Keynes 2000) 24, decrying the game: skills, skills, skills. For a similarly caustic criticism of skills in legal education, see W Pue, Legal Educations Mission (2008) 42 Law Teacher 275. For more nuanced discussions of the skills issue, see J Webb, Where the Action Is: Developing Artistry in Legal Education (1995) 2 International Journal of the Legal Profession, especially 18792, and also Twining, Context (n 1) 27, 181 and 18691, decrying the more Luddite varieties of scepticism. 8 Various jurists have, over the years, made particular pleas for new additions to the core. Regardless of the particular veracity of the claim, it is debatable whether further additions to an already bloated and constipated core would be helpful. The case for demanding the inculcation of basic principles of jurisprudence has tended to attract most attention. See, for example Twining, Context (n 1) ch 7; Birks, Preface (n 1), xivxv; and N MacCormick, The Democratic Intellect and the law (1985) 5 Legal Studies 17282. The case against compulsory jurisprudence, for reasons of both principle and capacity, is made by Alan Hunt in Jurisprudence, Philosophy and Legal EducationAgainst Foundationalism (1986) 6 Legal Studies 292302. Other areas of legal studies tend to attract particular advocates. For a good example of special pleading, in this instance for more civil procedure in the law curriculum, see Lord Woolf, The Education the Justice System Requires Today (2000) 34 Law Teacher 26370. 9 See Twining, Tower (n 1) 4, referring to a compendium of jurisprudential encrustations. Nigel Savage and Gary Watt deploy an alternative metaphor, of legal principles pinned rigid to the core like beautiful butterflies, but dead all the same. See their A House of Intellect for the Profession in Birks, Law Schools (n 1) 51. Speaking more immediately to the Canadian experience, Mark MacGuigan deploys a different metaphor to the same purpose. The ancient lineage of debate regarding curriculum results in the considerable frustration of educational wheel-spinning. See his The Public Dimension of Legal Education (1989) 12 Dalhousie Law Journal 89. 10 P Goodrich, Of Blackstones Tower: Metaphors of Distance and Histories of the English Law School in Birks, Law Schools (n 1) 59.
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kind.11 Devoid of any credible intellectual justification, the continued presence of the core is simply a testament to authority, the authority of the professions to decide which bits of law are more important than other bits.12 Of course, no one really believes that many professional lawyers could care less what gets to be taught in the average Law School curriculum. For them it is a rite of passage too.13 What gets to be taught is not important. It is, as Humpty Dumpty observed, who gets to decide that matters; which is to be master thats all.14 The intrusion of the professional bodies in legal education continues to rankle, and the contempt, as Peter Birks regretted a decade ago, is largely reciprocal.15 Scepticism, however, has tended to nurture a culture of subversion rather than antagonism. The core remains. But the obeisance is often cursory in the extreme, whilst its substantive, if not symbolic, hold has become ever more diluted.16 Perhaps most importantly, legal studies have, in recent decades, witnessed an explosion in contextual and inter-disciplinary studies; one which has, according to one prominent commentator, encouraged a mood of euphoria amongst many law teachers.17 Importantly, whilst the antecedents of so much of this inter-disciplinarity might be traced to earlier critical legal movements, there is nothing here that oscillates against the broader ideas of a liberal legal educationand much that moves in its favour.18 The idea
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The Kafka analogy was made in Birks, Preface (n 1) xvii. A classic and notorious expression, albeit from outside the UK, is Judge Harry Edwards, The Growing Disjunction Between Legal Education and the Legal Profession (1992) 91 Michigan Law Review, in which, at 34, he expresses dismay at the relative rise of contextual legal studies and the apparent demise of practical doctrinal scholarship. For an equally notorious critique of professional influences on the curriculum, see D Kennedy, The Political Significance of the Structure of the Law School Curriculum (1983/4) 14 Seton Hall Law Review 116. For a sharply critical commentary on the continuing role of the professional bodies in controlling the curriculum in UK Law Schools, see Puchalska, Legal Education (n 4) 1922. P Birks, The Academic and the Practitioner (1998) 18 Legal Studies 4035. A similar scepticism can be found in Bradney, Conversations (n 1) 1645. The Annotated Alice (Penguin, Harmondsworth 1970) 269. As Melanie Walker confirms, a curriculum is a political statement; not just for what it says, but for who gets to say what it says. See her Higher Education Pedagogies (Open University Press, Milton Keynes 2006) 11011. Birks, The Academic and the Practitioner (n 13). The same scepticism is articulated by Bradney in his Conversations (n 1), commenting at 27, Power is there but so is resistance. There is anyway, he adds at 159, a principled case for oppositional attitudes in HE institutions. See A Bradney, Law as a Parasitic Discipline (1998) 25 Journal of Law and Society 7173; Twining, Context (n 1) 281, and also 334 expressing a reasoned scepticism regarding the search for a core; and also Birks, Preface (n 1) xiii, commenting on the quick dash through the core. For an assertion of the quiet triumph of the new pluralism in legal education, as well as the mood of euphoria, see Twining, Tower (n 1) 123 and 145, and also Context (n 1) 340. A rather more strident triumphalism, embracing law as a parasitic discipline, can be detected in Bradney, Discipline (n 16) 7980. For an overview of these recent intellectual movements in legal education, see Cownie, Academics (n 1) 3539, 5463 and 7172 confirming that law is a discipline in flux. See Burridge and Webb, Rethinking Rules (n 1) 9394, specifically approving the place of contextualism in a post-liberal legal education.
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of a liberal legal education has, of course, engendered its own particular debate.19 It has certainly attracted the rhetorical support of policy documents, such as the Dearing Report, which cast liberal education as an instrument for supporting the broader values of a democratic society, and also the ACLEC Report, which ventured the case for a humane legal education.20 At the same time, the very term liberal admits certain disciplinary as well as ideological connotations. There is nothing politically or even morally neutral about liberalism, or about liberal legalism. Wesley Pue puts it bluntly: education is applied state theory.21 Such observations do not preclude the merit of a liberal legal education. But they do reinforce a responsibility to be contextually critical. For this reason, and in defence of the idea broadly conceived, some scholars have taken to recommending a post-liberal, as opposed to liberal conservative, legal education; one which embraces permissive moral neutrality if not a comprehensive ethical position.22 The vigour of the debate is testament to the continuing vitality of the original idea. It is reasonable to suppose that the vast majority of legal academics in the UK would see themselves as being engaged in such an enterprise; a critical conversation about the future of something that can be termed, however loosely, a liberal legal education.23 Some of the strongest advocates are those who embrace the fact that any political society is valueladen, and that its laws must be too, precisely because they are written to reflect something fundamental about our human being-ness.24 For this reason, such an approach is also favoured by those whose immediate concern lies in nurturing a sense of ethical responsibility in prospective lawyers.25 A liberal legal education, it has been argued, should seek to engage the sensitivities of law students.26 And it should be critical: a law student
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The nature of this debate is graphically portrayed by Burridge and Webb, in their Rethinking Rules (n 1) 7297. See para 5.43 of the Dearing Report, quoted in F Cownie, (Re)Evaluating Values: A Response to Burridge and Webb (2008) 42 Law Teacher 2008 at 311, and also B Hepple, The Renewal of the Liberal Law Degree (1996) 55 Cambridge Law Journal 471, and 4778. See Pue, Mission (n 7) 270, 2789. See Burridge and Webb, Rethinking Rules (n 1) 78, 8587 and 9097, positioning post-liberal education as a progressive alternative to liberal conservative education, and also their Legal Education Reprised (n 1) 2689. See A Bradney, Elite Values in Twenty-First Century United Kingdom Law Schools (2008) 42 Law Teacher 291. See Burridge and Webb, Legal Education Reprised (n 1) 263. J Webb, Ethics for Lawyers or Ethics for Citizens? New Directions for Legal Education (1998) 25 Journal of Law and Society 13640; and D Nicolson, Education, Education, Education: Legal Moral and Clinical (2008) 42 Law Teacher 1456. See A Bradney, Liberalising Legal Education in Cownie, Law School (n 1) 38 and also at 22 concluding, in the context of exploring the Leavisite injunction to educate sentiment as well as reason, that such an argument is helpful in reminding us that in legal education it is not, in the final analysis, theory that we are concerned with but with matters of relationship and connection.
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should not merely know or know how to but understand why things are as they are and how they could be different.27 And there is a further responsibility still: to conversation, to those with whom we converse, to the form of community within which such conversations are nurtured.28 The Western University is based on conversation, as Ronald Bartlett suggests. No conversation, no university. It is as simple as that.29 And it should be a particular type of conversation too, one that engages across disciplinary boundaries. Bradney gestures to this deeply intellectual responsibility when he cites Newman in defining a liberal education as a habit of mind which lasts through life, of which the attributes are, freedom, equitableness, calmness, moderation and wisdom.30 Plainly, in large part, these are personal qualities, and intellectual qualities too. But they are also qualities that manifest themselves in social relations, as Burridge and Webb again aver. The ideal of a liberal legal education should also aspire, as a minimum credo, to prepare good citizens.31 There is, in short, far more to a liberal legal education than learning about the law.32 Neil MacCormick refers to a broader Democratic Intellect within which a legal education should be presented.33 In similar tone, Twining invokes the image of a modern University as a House of Intellect which, in order to engage a broader and more ambitious role, to serve a wide variety of constituencies, seeks to nurture a culture of civic-mindedness which is every bit as important as technical competence.34 Law Schools, it can be argued, do have an especial duty to act, and educate, in the public interest.35 Perhaps unsurprisingly, given the strength of the communitarian strain in its public philosophy, such injunctions are more commonly found in North America; but not exclusively so.36 Roger Brownsword suggests that such an interest might describe the essential mission of the socially, as well as
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D Oliver, Teaching and Learning Law: Pressures on the Liberal Law Degree in Birks, Legal Education (n 1) 78. The importance of encouraging a critical attitude amongst law students was also stressed by KahnFreund, in his Reflections (n 2) 124. It also finds expression in Duncan Kennedys plea for a learning experience which embraces contradiction in place of doctrinal simplicity and instead embraces question and contradiction. See his Significance (n 12) 16. See Bradney, Conversations (n 1) 87 and 9091, speaking particularly to the issue of curriculum. For a similar supposition, within the broader context of HE as a whole, see Managing in Higher Education: The Wicked Issues (2000) 54 Higher Education Quarterly 16. Barnett, Supercomplexity (n 7) 92. Bradney, Conversations (n 1) 37, quoting from Newmans The Idea of a University. Burridge and Webb, Rethinking Rules (n 1) 7477, and also Legal Education Revised (n 1) 264. See here Bradney, Conversations (n 1) 9091, and also K Economides, Learning the Law of Lawyering (1999) 52 Current Legal Problems 398. MacCormick, Democratic Intellect (n 8) 17282. Twining, Context (n 1) 2934, 338, and also Tower (n 1) 5253. For a review of Twinings thesis, expressing a degree of scepticism as to its more Utopian resonances, see Savage and Watt, House of Intellect in Birks, Law Schools (n 1) 4557. MacGuigan, Public Interest (n 9) 9299. For a strident discussion of this responsibility primarily in the North American context, see P Carrington, Butterfly Effects: The Possibilities of Law Teaching in a Democracy (1992) 41 Duke Law Journal 741805.
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intellectually, progressive liberal Law School in the UK too.37 In deference to this responsibility, advocates on either side of the Atlantic have recommended a need to address the more obvious forms of potential social and democratic injustice, such as barriers to access, and associated forms of racial and gender discrimination.38 Of course, at this point the law teacher must contemplate rather grander vistas. Law, as Peter Birks rightly noted, lives in a new world.39 The challenges are various, many emanating from outside the narrower academy.40 It is here that the debate can indeed militate towards the depressive.41 Across the Higher Education sector, the What For Question has been asked with increasing urgency; the decline of donnish dominion succeeded by the age of supercomplexity, and massification.42 The imagery is dark and daunting.43 This may be appropriate; it may indeed contribute to a broader pessimism abroad in the academy. But it need not. There is nothing inevitable about the prospective
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See R Brownsword, Where are all the Law Schools Going? (1996) 30 Law Teacher 6, and also Law Schools for Lawyers, Citizens and People in Cownie, Law School (n 1) 2730. See H Arthurs, The Political Economy of Canadian Legal Education (1998) 25 Journal of Law and Society 1432 and L Bibbings, Widening Participation and Higher Education (2006) 33 Journal of Law and Society 7491. Birks, Academic (n 13) 402. For a sober, if now slightly dated, reflection on these pressures, see Oliver, Teaching (n 27) 8085. Dated or not, though, it is striking how much Law Schools today are faced with essentially the same challenges: resources, professional pressures, rising student expectations, something which is now recast in terms of stakeholder interests, external monitoring processes. Slightly less dated, and just as apposite, is Julian Webbs Post-Fordism and the Reformation of Liberal Legal Education in Cownie, Law School (n 1) 22943 and also Cownies interpretive commentary in Academics (n 1) 15963. See, for example, M Thornton, Among the Ruins: Law in the Neo-Liberal Academy (2001) 20 Windsor Yearbook of Access to Justice 1017. Her views find an echo in R Collier, The Changing University and the (Legal) Academic CareerRethinking the Relationship between Women, Men and the Private Life of the Law School (2002) 22 Legal Studies, particularly 1420. A similar tone, voiced in a more immediately legal context, can be discerned in the closing passages of Birks, Academic (n 1) 41314, and also in Brownswords suggestion that the pursuit of income appears to have overtaken the pursuit of knowledge in Law Schools (n 37), particularly 13. Similarly Julian Webb, writing in 1999, concluded with the putatively pessimistic observation, My fear is that the post-Fordist vision of HE in general, and legal education in particular, has already become so dominant that any alternative is rapidly slipping beyond our reach. See Post-Fordism (n 40) 253. For an overview of this rather pessimistic tendency, see Cownie, Academics (n 1) 10118. An original statement is, of course, Mary Warnocks Universities: Knowing Our Minds (Chatto & Windus, London 1990). It is also the driving concern in Melanie Walkers Pedagogies (n 14). For other more recent reviews, see B Williamson and F Coffield, Repositioning Higher Education in F Coffield and D Williamson (eds), Repositioning Higher Education (Open University Press, Milton Keynes 1997) 116, 1247, and also S Rowland, Overcoming Fragmentation in Professional Life: The Challenge for Academic Development (2002) 56 Higher Education Quarterly 5264; D Watson, Can We Do It All? Tensions in the Mission and Structure of UK Higher Education (2002) 56 Higher Education Quarterly 1434; and J Barr, Universities after Postmodernism (2002) 21 International Journal of Lifelong Education 3302. The allusion to supercomplexity, of course, finds an original statement in Ronald Barnetts Supercomplexity (n 7). For notoriously pessimistic commentaries, see Barnett, Supercomplexity (n 7), particularly at 71 and 7578, and T Becher and P Trowlers Academic Tribes and Territories (Open University Press, Milton Keynes 2001) chs 1 and 8. For a rather more measured overview see F Coffield and B Williamson, The Challenges Facing Higher Education in Coffield and Williamson, Higher Education (n 42) 121, and also Watson, Tensions
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history of Higher Education. There is always room for hope. The whole idea of education, Edward Said once remarked, is to change and improve things, so that other cultural and political possibilities can emerge, even at moments when so-called pragmatists say it is impossible.44 Sixty-five years ago, Harold Lasswell and Myres McDougal wrote that the essential aim of education is to seek to promote the major values of a democratic society.45 It still is. A conception of liberal education which fails to engage this responsibility is indeed vapid, even pointless.46 The stakes are far too high to permit a pessimism that can debilitate, for reasons which will become apparent shortly, perhaps peculiarly high at present. The idea of a liberal, or perhaps post-liberal, education remains vital. The communication of knowledge, the core business of an identifiable liberal education, is itself a democratic responsibility.47 Higher Education, it has recently been argued, must not be reduced to a means of supplying industry with technically competent but socially illiterate graduates; it must develop people capable of creating and shaping a more prosperous, a more just and a more integrated society.48 It is, again, a conclusion which carries a particular resonance for those of us who teach law students.
II In 1916 the American educationalist John Dewey published his seminal Democracy and Education. In an immediate sense Democracy and Education is not an easy read. Dewey was a famously laboured writer; ironically, like so many paeans of educational theory, he was not a particularly fluent communicator or teacher.49 Yet the idea that underpins Democracy and Education, an idea that had been nurtured through essay after essay during the previous three decades of Deweys career, was a truly inspiring one.50 The purpose of
(n 42) 14355. From the context of the legal academy, on the same issues, see Twining, Tower (n 1) 4950 and also 195; and Thornton, Ruins (n 41) 510 arguing that neo-liberal politics represents a primary threat to the integrity of universities in all liberal democracies.
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In Walker, Pedagogies (n 14) 3. See their Legal Education and Public Policy: Professional Training in the Public Interest (1943) 52 Yale Law Journal 212. H Brighouse and A Swift, Defending Liberalism in Education Theory (2003) 18 Journal of Education Theory 367. Warnock, Universities (n 42) 35. Coffield and Williamson, Challenges (n 43) 23. See A Ryan, John Dewey and the High Tide of American Liberalism (WW Norton, New York 1997) 20, 38. Democracy and Education was the book which Dewey considered his most important, and, in terms of his own intellectual life, perhaps the most defining too. On this and the inspirational aspect of Deweys writings, and their collateral optimism, see Ryan, Dewey (n 49) 2728 and 1714, 181, and also Martin, Dewey (n 3) 2556. According to Hilary Putnam, is the optimism which ultimate redeems Deweys otherwise slightly undeveloped theory of democracy. See H Putnam, A Reconsideration of Deweyan Democracy in M Brint and W Weaver (eds), Pragmatism in Law and Society (Westview, Boulder CO 1991) 21743.
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a liberal education, according to the man whom President Eisenhower termed the great philosopher of freedom, is to protect and promote a progressive idea of liberal democracy.51 This might be an education in the humanities, in physical or biological science, or in law. It did not matter; any educational enterprise, from the first year of primary to the last year of higher education, should be geared to this one central mission. At the heart of Democracy and Education lay precisely this: an affirmation of the ineluctable relation of democracy and education. Democracy is devoted to education, because it is dependent upon the shaping of a voluntary disposition and interest through successive generations; and education alone can do this.52 In this, as he argued strongly in his earlier The School and Society, published in 1899, a classroom serves as an incubator for democracy and social progress, whilst a progressive education should be seen as a fostering, a nurturing, a cultivating, process.53 It is also, in large part, an experiential one. Individuals come to appreciate the value of democracy, and the necessity of social existence and responsibility, through their own experiences.54 A democratic education is an education impregnated with a sense of reality.55 Education thus comprehended is fluid, an experience of continuous reconstruction which lasts a lifetime.56
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The affinity between education and the interests of democracy in Deweys writings is stated explicitly in one of his earliest published essays, The Ethics of Democracy, in 1888. For a discussion of this work, see L Benson, I Harkavy and J Puckett, Deweys Dream: Universities and Democracies in an Age of Education Reform (Temple University Press, Philadelphia 2007) 35. It is generally agreed that Deweys incipient affinity was nurtured still further during his time at Chicago University, where he fell under the spell of its charismatic President, William Rainey Harper. Harpers stated vision for his University included the injunction: Education is the basis of all democratic progress. The problems of education are, therefore, the problems of democracy. In Benson et al, Dream, ibid, 16. For further commentary on Deweys early interest in democracy, see Martin, Dewey (n 3) 10910, and 477 citing Eisenhowers observation. For a more general discussion of the centrality of democracy across Deweys corpus, see R Boisvert, John Dewey: An OldFashioned Reformer (1994/5) 13 Studies in Philosophy and Education 3339, and also A Flew, Democracy and Education in R Peters (ed), John Dewey Reconsidered (Routledge and Kegan Paul, New York 1977) 76101. J Dewey, Democracy and Education (Free Press, New York 1997) 3, 8788. For a commentary on this animating spirit of intellectual inquiry, see R Bernstein, John Dewey (Ridgeview, Atascadero CA 1966), particularly 13541. Dewey, Education (n 52) 10. The role of educational institutions to incubate democratic ideals was consistently espoused throughout Deweys career, from The School and Society through to later essays such as his particular paean to Croly and Jefferson, Freedom and Culture. See Ryan, Dewey (n 49) 3256, and also Martin, Dewey (n 3) 14, stressing his particular admiration for Jefferson, and 199200. See Martin, Dewey (n 3) 500, and also the much earlier essay by John Childs, The Educational Philosophy of John Dewey in P Schilpp (ed), The Philosophy of John Dewey (Northwestern University Press, Evanston IL 1939) 42830. Dewey, Education (n 52) 15960, 163, and also 286 discussing the rupture of experience and knowledge in educational practice. For a commentary on Deweys experientialism, see Ryan, Dewey (n 49) 1369, focusing in particular on its presentation in his The School and Society, and also Martin, Dewey (n 3) 1213, stressing its importance in early writings such as Outlines of a Critical Theory of Ethics and Study of Ethics. Dewey, Education (n 52) 3940, 78, and also 140. See C Higgins, Deweys Conception of Vocation: Existential, Aesthetic, and Educational Implications for Teachers (2005) 37 Journal of Curriculum Studies 450 on this idea.
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In this broader sense it is vocational too: an education designed to equip citizens to contribute in meaningful ways to those particular communities of which they are members. This did not mean, however, that it was utilitarian.57 For this reason Dewey was peculiarly dismissive of slavish curricula that pretended to rigid knowledge bases, and which were written in deference to a remote future vocation rather than in aid of promoting present reflection on individual experience.58 Curricula, like societies indeed, come in democratic and undemocratic forms.59 It is not difficult, in passing, to imagine the contempt with which he would have refuted the supposition that a Law School curriculum should be fixed around a supposed core of necessary legal facts expounded in supplementary core texts.60 In a later essay entitled The Social Significance of Academic Freedom, Dewey took a deliberately abrasive line: any restriction on educational freedom, particularly any restriction that originates outside the classroom, is a crime against educative autonomy and democracy.61 Certainly social efficiency was of great importance to Dewey. But this does not again translate into a simple utilitarianism.62 Equally as important is the cultivation of ideas and art and human interests. The good citizen thinks not just of society, but of other citizens. It is this which distinguishes the vitality of a democratic form of governance; an appreciation that the interests of others are equally valuable, as are their experiences and the means of their communication.63 It is the particular task of education, Dewey concluded nearly a century ago, to struggle on behalf of an aim in which social efficiency and personal culture are synonymous instead of antagonists; and that aim is democracy.64 The injunction has lost nothing of its resonance over time. And neither has the collateral suggestionthat it is a primary duty of teachers to promote not just social efficiency and responsibility, but the individual appreciation of human interest. At the centre of Deweys
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On Deweys determination to resist the simplistic assumption alignment of vocation and utility, see Higgins, Vocation (n 56) 44351, and also Boisvert, Reformer (n 51) 32933. Dewey, Education (n 52) 110, and also 170. It would be a mistake to simplify Deweys view of vocation education. He was certainly not opposed to the idea, and indeed rather valued it. But a vocational education, precisely because it so readily aligns with prospective experience, must never be crushed by past wisdom, by the prejudices of previous generations which have sought to prescribe curricula. And it should never, most importantly, be reduced to nothing more than a schema for vocational training. See Education (n 52) 31619 for an extended discussion of vocational education. For a discussion of Deweys idea of curricula as reflections of social concerns and needs, rather than professional utility, see R Peters, John Deweys Philosophy of Education in Peters, John Dewey Reconsidered (n 51) 10911. See Dewey, Education (n 52) 1912. For confirmation of Deweys contempt for such curricula and such educational strategies, see Ryan, Dewey (n 49) 282. Quoted in Martin, Dewey (n 3) 4401. See Boisvert, Reformer (n 51) 3289. Dewey, Education (n 52) 1201. Dewey, Education (n 52) 123.
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philosophy of education was a critical determination to overcome the dualism of science and art, the efficient and the creative, the supposedly sensational and the rational.65 Education must be both, and participative too.66 The importance of this creative impulse in Deweys writings is often neglected. It does not, at first glance, seem to fit the prejudice of a pragmatic thinker. But for Dewey it was indeed central, a vital component of a liberal and democratic education.67 As early as 1902, in his essay The School as Social Centre, he had confirmed that any educational institution must provide means for bringing people and their ideas and beliefs together, in such ways as will lessen friction and instability, and introduce deeper sympathy and wider understanding.68 A good teacher works with the experiences and impressions of the student.69 The dramatization of experience, Dewey affirmed, is the sole way of escape from mechanical teaching:70
Were it not for the accompanying play of imagination, there would be no road from a direct representative knowledge, for it is by imagination that symbols are translated over into a direct meaning and integrated with a narrower activity so as to expand and enrich it.
And it is the peculiar value of the humanities, of the considered narrative, to elevate the imagination.71 At the heart of later writings such as Art and Experience lies the supposition that a Democratic education must above all aim at training the cultural imagination.72 Whilst his ideas have taken strong root in educational debate, Deweys broader intellectual reputation has waxed and waned during the last century.73 It is particularly rare indeed to find a legal academic, especially one on this side of the Atlantic, making reference to Dewey. Fiona Cownies recommendation of Deweys idea of experiential learning in the law school classroom is an honourable exception.74 But otherwise, there
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Dewey, Education (n 52) 25861, 3336, 343. See Ryan, Dewey (n 49) 1045, and also Higgins, Vocation (n 56) 4434, on Deweys determination to overcome this critical dualism in education. Dewey took aim against what he termed elitist democracy on a number of occasions, perhaps most importantly in The Public and its Problems, published in 1927. See Benson et al, Dream (n 51) 513. For an overview of the role of the aesthetic in Dewey, and more particularly still the creative imagination, see Bernstein, Dewey (n 52) 1579. Quoted in Benson et al, Dream (n 51) 38. For a comment on sympathy in Dewey, see T Alexander, Educating the Democratic Heart: Pluralism, Traditions and Humanities (1994/5) 13 Studies in Philosophy and Education 2523. The idea found its most concerted consideration in Deweys Experience and Nature. For a comment on the centrality of art and impression across Deweys various writings on education and philosophy, see Ryan, Dewey (n 49) 2625, and also Alexander, Heart (n 68) 2501. Dewey, Education (n 52) 237. To elevate a piece of knowledge that might otherwise be thought mediocre or trivial. See Dewey, Education (n 52) 238, 241. Interestingly Dewey maintained a particular interest in and admiration for the writings of Thackeray and Matthew Arnold, and, in particular relation to democracy, Shelley too. See Martin, Dewey (n 3) 3940, 135. See Alexander, Heart (n 68) 252, and also 2546. Ryan, Dewey (n 49) 328, 3479. Cownie, Searching (n 1) 4950.
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is not much Dewey about, at least not in the pages of your average law journal. He is, of course, rather more familiar in the wider academic world, in large part due, in more recent years, to the efforts of Richard Rorty. What Rorty admired about Dewey was a preference for social hope over intellectual pessimism. Whilst other philosophers agonised about abstruse metaphysics, Dewey was concerned merely with helping people solve problems.75 The familiar criticism of Dewey, of course, is that the pondering did not amount to much in practice: that he was strong on what should be achieved, but rather less so on how. The vision is there, of the role of education to facilitate social progress and to preserve the facility for active democratic participation. But the precise means by which this role is pressed is never quite so clear.76 This is the difficult bitthe How question. Here policy arguments oscillate, not just within the legal academy, but across Higher Education more generally, as to strategies of access and social justice, of engagement with local communities as well as local stakeholders.77 The intellectual arguments, in turn, tend more immediately to the conceptual and pedagogical. Rorty, drawing on Dewey, suggests two critical intellectual capabilities. The first is an embrace of indeterminacy; of thinking rather more about questions, and rather less about answers. As Barnett confirms, a genuine higher learning is apparent when the student is enabled to understand the contestability of all the frameworks that she encounters and comprehends and to confront that contestability in all its presenting forms.78 Rorty agrees, following Dewey in rejecting the idea that there is such a thing as truth waiting to be discovered by the diligent philosopher, or student. There are, instead, context-situated attempts to solve problems.79 Only descriptions of the world, he confirmed, can be true or false.80 To accept such a position, accordingly, is to accept the situation of a liberal ironist, the sort of person who faces up to the contingency of their very existence and that of the society within which they live.81 In his later Philosophy and Social Hope, Rorty even went so far as to suggest that law is a peculiarly contingent
75
76 77 78 79 80 81
R Rorty, Philosophy as Cultural Politics (Cambridge University Press, 2007) 79 and also 184202 for an extended commentary, in an essay entitled Kant v Dewey. For similar comments, see The Consequences of Pragmatism (Harvester, Sussex 1982) 53 and 60, and also Philosophy and the Mirror of Nature (Princeton University Press, Princeton NJ 1980) 56, 36770. For a comment on Rortys almost unalloyed admiration for Dewey, see Ryan, Dewey (n 49) 34, and also 3557. For a broader overview of Rorty on Dewey, see J Marshall, On What We May Hope: Rorty on Dewey and Foucault (1994/5) 13 Studies in Philosophy and Education 30723. See Benson et al, Dream (n 51) ix, 60; Ryan, Dewey (n 49) 1812; and R Westbrook, John Dewey and American Democracy (Cornell University Press, Ithaca NY 1991) 3178. For a discussion in the narrower context of the legal academy, see Twining, Context (n 1) ch 13. Barnett, Supercomplexity (n 7) 158. Rorty, Consequences (n 75) 16. For the extent to which Dewey distanced himself from metaphysical epistemologies, see Ryan, Dewey (n 49) 3942. R Rorty, Contingency, Irony, and Solidarity (Cambridge University Press, 1989) 45. Rorty, Contingency (n 80) xv.
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discipline; the product of an ongoing series of attempts to resolve particular quarrels and controversies.82 Legal pragmatists might nod sagely; others are likely to be more troubled.83 The second capability flows from the first. Instead of thinking about abstract principles, of philosophy or theology or law, or whatever, think instead about other people, of how you might make their lives a little better or a little happier. Where a liberal metaphysician wants to provide intellectual justification for favouring happiness, a liberal ironist just wants our chances of being kind, of avoiding the humiliation of others, to be expanded by redescription.84 Thus:85
What matters for pragmatists is devising ways of diminishing human suffering and increasing human equality, increasing the ability of all human children to start life with an equal chance of happiness. The goal is not written in the stars, and is no more an expression of what Kant called pure practical reason than it is the will of God. It is a cause worth dying for, but it does not require backup from supernatural forces.
A progressive liberal legal education refracts this simple ideal, holding that there are more important relationships that a law student must engage; not between one statute and another, or one case and another, but between real human beings.86 The Rortian aspiration might seem a bit lacking in ambition, and perhaps a bit allusive; nourishing human relations, being nicer. But it is, in fact, an ultimate ambition, and perhaps the most difficult too. If education is not about the nourishment of persons, it is not clear what it is about at all.87 Certainly it might be supposed that a legal education should be about more than making people nicer or a bit more helpful. But it must also, as it progresses, make absolutely sure that those who complete law degrees, and who are then despatched to serve as lawyers in the wider world, have a closer sense of just how important it might be to be a little nicer and a little more helpful. And they will not get much guidance here by trawling through the standard textbooks on Property Law or Contracts or Trusts. They will need to look elsewhere, outside the fetish of the core.88 And if they follow the advice of Rorty they will look hardest at the likes of Shakespeare and Shelley, Wordsworth and Whitman, the strong poets who recognised the contingency
82 83 84 85 86
87 88
R Rorty, Philosophy and Social Hope (Penguin, Harmondsworth 1999) 7374. See I Ward, Bricolage and Low Cunning: Rorty on Pragmatism, Politics and Poetic Justice (2008) 28 Legal Studies 283, 288. Rorty, Contingency (n 80) 91. Rorty, Social Hope (n 82) xxix. See here Cownie, Searching (n 1) 56, calling for an education that can capture the excitement, the spontaneity and the enthusiasm which go to make up the human relationships which are the centre of any learning experience. See S Goodlad, The Quest for Quality: Sixteen Forms of Heresy in Higher Education (Open University Press, Milton Keynes 1995) 20. Twining, Context (n 1) 3942.
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of human existence, who recognised that life is not a matter of comprehending large truths, but rather of reconciling ourselves to small interanimating contingencies, and who, above all, realised that the politics that really matter is the politics of making other peoples lives that little bit more tolerable.89 And they will look at those jurists who likewise advocate a jurisprudence that is less about rights and regulations and endless case-notes, and more about transformative visions and sad and sentimental stories of suffering and injustice.90 The realisation of the most prosaic and pragmatic of aspirations is dependent upon the nurturing, through a progressive education, of the most allusive of human qualities, the ability to imagine and to empathise. It is for this reason that Rortys observation, that love is pretty much the only law, has such a compelling, if allusive, even whimsical, juristic resonance.91 Justice, in the ironic conception, is a romantic hope; hopeful precisely because it is romantic, and contingent.92
III The Deweyan tradition is not, as we have already noted, so familiar in the legal academy. Rather more familiar perhaps is the Aristotelian, and more familiar still is the work of one its leading contemporary exponents, Martha Nussbaum, whose Cultivating Humanity: A Classical Defence of Reform in Liberal Education can be placed alongside Deweys Education and Democracy as one of the most compelling modern defences of a progressive liberal education. Of course, their intellectual resources are very different. Where Dewey moved from an early Hegelianism to a thoroughgoing Jamesian pragmatism, the inspiration for Nussbaum is rooted much further back in history, in the classical traditions of Aristotle and Seneca. It is for this very reason that the principle of practical reason is so central to Nussbaums work.93 The purpose of intellectual activity, as she stressed in Loves Knowledge, must be the pursuit of the common good through the faculty of reason, albeit a reason that is tempered by a proper appreciation of human emotion and a capacity for admitting contextual indeterminacies.94 As with Dewey, there is a strong political
89 90
91 92 93
94
Rorty, Contingency (n 80) 1620, 27, 100. Rorty particularly singled out Roberto Unger as precisely such a jurist. See his Essays on Heidegger and Others (Cambridge University Press, 1991) 182, 1867, 192. For a discussion of these jurisprudential implications, and also the rather mixed reception that Rorty received amongst legal academics, see Ward, Rorty (n 83) 295301. See Rorty, Social Hope (n 82) 716. Rorty, Social Hope (n 82) 212, explicitly approving Derridas similar depiction of justice. See M Nussbaum, Cultivating Humanity: A Classical Defense of Reform in Legal Education (Harvard University Press, Cambridge MA 1997) 39, defending practical reason against the pernicious challenges of post-modernism. M Nussbaum, Loves Knowledge: Essays on Philosophy and Literature (Oxford University Press, 1990) 6973, 7982, 94.
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imperative in Nussbaums work. The purpose of Cultivating Humanity is to defend a particular norm of citizenship.95 It was Seneca who determined that the purpose of education is to produce prospective citizens who are self-aware, self-governing, and capable of recognizing and respecting the humanity in others.96 Much of Nussbaums writing on policy is, of course, informed by Amartya Sens capabilities approach.97 Education, according to Sen, is one of the relatively small number of centrally important doings that are crucial to well being and human development.98 It is, of course, a position which resonates crisply with the political as well as moral primacy of public education in Deweys Democracy and Education. Education, comprehended as a process of critical inquiry, is an irreducibly human activity.99 And it defines the conversation of a liberal democracy which is nothing other than an expression of deliberative judgement about the overall good.100 In a compelling passage, Nussbaum recommends:101
It is up to us, as educators, to show our students the beauty and interest of a life that is open to the whole world, to show them that there is after all more joy in the kind of citizenship that questions than in the kind that simply applauds, more fascination in the study of human beings in all their real variety and complexity than in the zealous pursuit of superficial stereotypes, more genuine love and friendship in the life of questioning and self-government than in submission to authority.
The invocation of love and friendship as a constituent of a progressive society, and the kind of education which nurtures it, is of course critical. It is echoed, as we have seen, in Rorty. It is also found in Derrida.102 It had, moreover, already been explored at length in Nussbaums earlier Loves Knowledge.103 But in Cultivating Humanity the pedagogic implications are drawn more clearly still. More precisely, any intellectual pursuit of justice, ethical or political, must tread the interdisciplinary margins which lie between politics, philosophy and literature.104 The value of literature is dual and reciprocal. First, it impresses the narrative nature of human
95 96
97 98 99 100 101 102 103 104
Nussbaum, Humanity (n 93) ix. M Nussbaum, Education for Citizenship in an Era of Global Connection (2002) 21 Studies in Philosophy and Education 290. Nussbaum has recast the same concept of citizenship in a more obviously Rawlsian guise in her more recent Upheavals of Thought: The Intelligence of the Emotions (Cambridge University Press, 2001) 4012. See, again, Nussbaum, Upheavals (n 96) 416, 423. The extent to which Sens capabilities approach has been taken on by many in many different areas of HE is stressed by Walker, in Pedagogies (n 14) 20, 2831. A Sen, Inequality Re-examined (Oxford University Press, 1992) 44. Nussbaum, Humanity (n 93) 40. Nussbaum, Humanity (n 93) 21, 27. Nussbaum, Humanity (n 93) 84. See, for example, J Derrida, Politics of Friendship (Verso, London 1997) 78, 2022. See for example, Loves Knowledge (n 94) 53. This need was given prominence at the outset of her earlier Loves Knowledge (n 94), at ix and 35.
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experience. We need, as Nussbaum affirms, stories of peoples real diversity and complexity.105 And second, it develops sensitivity to these stories by stimulating the powers of imagination that are essential to citizenship.106 As AN Whitehead opined, half a century ago: a university is imaginative or it is nothingat least nothing useful.107 The exercise of a developed narrative imagination, according to Nussbaum:108
means the ability to think what it might be like to be in the shoes of a person different from oneself, to be an intelligent reader of that persons story, and to understand the emotions and wishes and desires that someone so placed might have.
Literature, as she had ventured in her earlier Poetic Justice, is in league with the emotions.109 This conjunction became the subject of deeper reflection still in Upheavals of Thought, where Nussbaum confirmed that it is the emotions which ultimately shape the landscape of our mental and social lives.110 The ethical consequences, accordingly, are immediate. In terms of nurturing human relations, a sensitive citizen, one who can indeed comprehend the emotions and wishes and desires of someone else, is a citizen who can exercise a compassionate empathy. The ideal of social justice is dependent upon the prior exercise of a compassionate imagination.111 Democracy, at this point, becomes not merely cognitive but also sensitive.112 It becomes a feeling thing; something the vitality of which is dependent upon sensations of fairness and affinity, love and friendship.113 Nussbaum had already fleshed out the closer jurisprudential implications of this disciplinary relation in Poetic Justice, which had opened with the assertion: I defend the literary imagination precisely because it seems to me an essential ingredient of an ethical stance that asks us to concern ourselves with the good of other people whose lives are different from ours.114 So much, she observed, was noted by Oliver Wendell Holmes: life is painting a picture not doing a sum.115 Citing Walt Whitman, a near contemporary of Holmes, and also Rortys favourite poet, Nussbaum further confirmed that the best judge
105 106 107
108 109 110 111 112 113 114 115
Nussbaum, Humanity (n 93) 6. Nussbaum, Humanity (n 93) 85. This particular conjunction of imagination and the emotions would be developed further in Upheavals (n 96). See for example 6265, 21315, 2323. A Whitehead, The Aims of Education and Other Essays (Williams and Norgate, London 1950) 139, 145. Whiteheads further conclusion, at 149, warrants reflection too. The inculcation of an imaginative sense of empathy is beyond all regulation; a conclusion that asks significant questions of the various strategies of evaluation and assessment presently so beloved of university managers and external stakeholders. Nussbaum, Humanity (n 93) 1011. Nussbaum, Humanity (n 93) 53. Nussbaum, Upheavals (n 96) 1. Nussbaum, Humanity (n 93) 9092. For a similar observation, see M Nussbaum, Poetic Justice: The Literary Imagination and Public Life (Beacon Press, Ypsilanti, MI 1995) 67. Nussbaum, Humanity (n 93) 110. Nussbaum, Justice (n 112) xvi. Nussbaum, Justice (n 112) xix.
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is one who embraces poetry. A judge cannot simply be a poet, but a judge who is not prepared to exercise her imagination, and who is not prepared to admit empathy and compassion into her judgment, is unlikely to be a good one.116 In order to be fully rational, judges must also be capable of fancy and sympathy; a conclusion which echoes her rather earlier, but equally striking, assertion in Loves Knowledge, that we need leaders, political and legal, whose hearts and imaginations acknowledge the humanity in human beings;117 or to serve the interests of a liberal democracyfor the mission of such a democracy is the recognition of imagination, inclusion, sympathy and voice.118 And the jurisprudence of a liberal democracy must be written in this tenor. Judges may be reluctant to admit the faculty of sensibility in their process of legal judgment, in the construction of their jurisprudence.119 But it is there all the same; and so it should be. For the Law School there are, of course, implications of principle and pedagogy here. There is first the primacy of a deep principle of justice. It may be that much of what Nussbaum has to say about practical justice reduces to a concern for the happiness of others; but there is a far more urgent concern for the principle of justice here than in Rortys similar injunctions. Justice is not simply a matter of rubbing along better. A second pedagogic implication is the need to promote the inter-disciplinary, and more immediately narrative, nature of a liberal legal education. The case for law teachers teaching beyond the core and beyond the textbook has already been ventured.120 The process is already well underway. Law today is a discipline in flux.121 And it is a matter not just of learning different things, but of experiencing different ways of thinking. It is this which makes inter-disciplinarity not just an intellectual challenge, but a cultural one too. Disciplines are cultural constructs; and so moving across disciplines means moving across cultures. In a striking passage at the close of Cultivating Humanity, Nussbaum opines:122
People who have never learned to use reason and imagination to enter a broader world of cultures, groups, and ideas are impoverished personally and politically, however successful their vocational preparation.
116 117 118 119 120 121 122
Nussbaum, Justice (n 112) 83. Nussbaum cites Whitman was again, in the same cause, in Upheavals (n 96), at 4025 and 4368. See Nussbaum, Justice (n 112) 121 and Loves Knowledge (n 94) 101. For similar assertions, see also 7983, 9192. Nussbaum, Justice (n 122) 11819. Again, there is a resonance here of earlier statements in Loves Knowledge (n 94), most obviously perhaps at 1656. Nussbaum explores this reluctance in Upheavals (n 96) 3546. See here Becher and Trowler, following Clifford Geertz, in Academic Tribes (n 43) at 62, and also 183. Cownie, Academics (n 1) 7172 and 197. Nussbaum, Humanity, 297.
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It is not a conclusion that is addressed directly to law students. But it has, for those who teach law students, a sharp resonance.123 The pedagogic implication, as we have already noted, militates around the How question. How can we broaden legal education, whilst maintaining a responsible watch on what is valuable for law students and valuable for the community in which they will live and work? It is another of the defining questions that we all, as teachers of law, face.124 There is a striking consonance between the pedagogic strategies urged by Rorty and Nussbaum. According to the latter, stimulating the narrative imagination is an essential preparation for moral interaction, for feeling the injustice experienced by others, and seeking to address it.125 For Rorty too, as we have already seen, the mark of the ironist and the strong poet is the denial of any pretended distinction between the disciplines of literature, philosophy and politics. It is for this reason that Rorty could observe that whilst a knowledge of so-called rights might be of some use to legal scholars, a closer conception of what it means to be human is infinitely more valuable.126 The jurisprudential implications are apparent, and have been taken on by a number of jurists engaged in what might variously be termed law and literature or law and humanities scholarship. Here, for example, Richard Weisbergs observation, that [s]tories about the other induce us to see the other, and once we do so, we endeavour consistently to understand the world from within the others optic, resonates.127 So does Maria Aristodemous conclusion, that no juristic writing ever takes place outside the mirroring love of, and for, others.128 Likewise, perhaps, there is much in Allan Hutchinsons comments that carries a distinctively Rortian tenor:129
We are never not in a story. History and human action only take on meaning and intelligibility within their narrative context and dramatic settings. There are many stories being imagined and enacted, but we can only listen to them and comprehend them within the vernacular contexts of other stories. Our conversations about these narratives are themselves located and scripted in deeper stories which determine their moral force and epistemological validity.
123 124 125 126 127 128 129
As confirmed by Cownie, Values, 3034. Indeed perhaps all higher education teachers. See Walker, Pedagogies (n 14) 18. Nussbaum, Humanity (n 93) 90. The observation famously made in his Oxford Amnesty Lecture. In R Rorty, Truth and Progress (Cambridge University Press, 1998) 172, 17780. See R Weisberg, Poethics, And Other Strategies of Law and Literature (Columbia University Press, New York 1992) 46. M Aristodemou, Law and Literature: Stories from Her to Eternity (Oxford University Press, 2000) 295. See A Hutchinson, Dwelling on the Threshold: Critical Essays on Modern Legal Thought (Carswell, Toronto 1988) 13. Hutchinson would not proclaim an immediate affinity with Rorty of course. See his critical commentary on Rortys residual liberalism in A Hutchinson, The Three Rs: Reading/Rorty/Radically (1989) 103 Harvard Law Review 555. A similar criticism from another leading CLSer, Joseph Singer, can be seen in Should Lawyers Care About Philosophy? [1989] Duke Law Journal 17607.
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We cannot detach our cultural lives, or our jurisprudential lives, from these stories; nor should we want to. The same sentiment can be read in Patricia Ewick and Susan Silbeys observation, that it is only through our storytelling that we can (re)create the commonplace of law.130 Hutchinson continues:131
The life of law is not logic or experience, but a narrative way of world-making More importantly still, it is the stories themselves that come to comprise the reality of our experience. In this sense, legal stories mediate our engagement with the world and with others: they provide the possibilities and parameters of our own self-definition and understanding.
Such a supposition insinuates an essential paradox: very often literature, and very often fictive literature, is the best medium for impressing upon law students the reality of law.
IV Sometimes, where the existing media is peculiarly perverse, or perhaps oddly absent, literature becomes pretty much the only medium. Such examples, it might be thought, are rare. There is no shortage of law relating to crime, or to contracts, or to property, and whilst the law of the constitution might, famously, seem rather elusive, few would suggest that it is absent or even perverse. Even so cynical a commentator as Walter Bagehot found plenty of constitution to write about in the essays which eventually composed his English Constitution. But there is, I would argue, at least one such jurisprudential absence or perversity; and part of the perversity attaches to the thought that it is supposed to be one of the defining experiences of our generation. This perversity is terrorism. We are, apparently, living amidst an age of terrorpart of our descent into a new age of mega or hyper-terrorism, of pervasive global anarchy as the more excited suggest.132 9/11, according to German Chancellor Schroeder, represented a declaration of war against all civilisation. The future of tolerance and freedom itself, the leader of the western world intoned, lies in the balance.133 Not really. Cold statistics have since rendered the rhetoric absurd.134 But for
130 131 132
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P Ewick and S Silbey, The Common Place of Law: Stories from Everyday Life (Chicago University Press, Chicago 1998) 244. Hutchinson, Dwelling (n 129) 14. For invocations of this coming age of anarchy, see J Gray, Al-Qaeda and What it Means to be Modern (Faber and Faber, London 2003) 12, 7375, and, rather more sceptically, B Barber, Fears Empire: War, Terrorism and Democracy (WW Norton, New York 2004) 1718, 87, 92. See I Ward, Law, Text, Terror (Cambridge University Press, 2009) 6. Three thousand died in the attack on the Twin Towers. Roughly the same number of women are killed by abusive husbands each year in the US. And again roughly the same number of children die of malaria each day in Africa. Fifty times as many people died in the Indian Ocean tsunamis in 2004.
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a while, as Susan Faludi has more recently observed, few were inclined to voice their doubts; and so we conjured, for ourselves, our very own terror dream.135 The consequences of this challenge and the war which, of course, we are all supposed to be so keen to prosecute are various. There are very obvious jurisprudential consequences, many of which go to the very heart of what it means to live in a liberal democracy. At an extreme, in the weeks that followed 9/11, President Bush could be heard sagely advising his compatriots, I dont care what the international lawyers say, we are going to kick some ass.136 Since its inception, the so-called war on terror has proved to be a subject of constant anxiety amongst international lawyers, some venturing to construct a measure of legitimacy out of a rather convoluted sequence of UN resolutions spliced with an inventive understanding of the doctrine of pre-emption, most musing over the extent to which, when push came to shove, all the grander pretensions of international law, conceived in large part to preclude precisely this kind of unilateralism, proved to be so fragile.137 Harold Koh is not alone in wondering why so many lawyers seem to have concluded that somehow the destruction of four planes and three buildings has taken us back to a state of nature in which there are no laws or rules.138 The grotesque aberration that was Guantanamo Bay, the yawning jurisprudential black hole as Lord Steyn described it, vividly confirmed the extent to which, in the matter of the war on terror, law appeared to be essentially silent, effectively impotent.139 And not just in Cuba. Domestic governments on both sides of the Atlantic have hastily thrown up all manner of statutory barricades against the terrorist barbarian. Recent enactments in UK counter-terrorist legislation include notorious provisions intended to outlaw the glorification of terrorism in the 2006 Terrorism Act, along with measures to tighten immigration, to detain suspected terrorists and to control their movements.140 These latter provisions have been subject to various legal challenges, many of which have been brought under the auspices of the Human Rights Act. And judgments
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138 139 140
S Faludi, The Terror Dream: Fear and Fantasy in Post9/11 America (Metropolitan Books, New York 2007) 2. See P Sands, Lawless World: America and the Making and Breaking of Global Rules (Penguin, Harmondsworth 2005) 174. A gigantic irrelevance, as one newspaper editorial, in the Daily Telegraph, concluded. See Ward, Law, Text, Terror (n 133) 11. For defences of the legality of the war on terror, see R Wedgwood, The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defence (2003) 97 American Journal of International Law 5778, and J Yoo, International Law and Iraq (2003) 97 American Journal of International Law 5634, 575. For a compelling critique, see T Franck, What Happens Now? The United Nations After Iraq (2003) 97 American Journal of International Law 61014, and most stridently still, Sands, Lawless World (n 136) 1778, 184203. H Koh, The Spirit of Laws (2002) 43 Harvard International Law Journal 23. J Steyn, Guantanamo Bay: The Legal Black Hole (2004) 53 International and Comparative Law Quarterly 8. For a comment on the glorification provisions, see I Ward, God, Terror, Law (2008) 28 Oxford Journal of Legal Studies 7926.
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such as that famously reached by the House of Lords in the Belmarsh detainees case have been understandably lauded as vital statements of judicial determination to preserve fundamental principles of liberal jurisprudence against the despotic insinuations written into counter-terrorist legislation; except, of course, that the very same judgments can be equally read as a statements of judicial impotence. Their lordships in A might have been appalled by the way in which the British government seemed to disregard the liberties of those it sought to detain. But they were also powerless to do much about it.141 The devising of a counter-terrorist law, as a complement to a counter-terrorist strategy, has thus proved to be conspicuously tortuous. Perhaps, ultimately, the former President of the International Court of Justice is right: terrorism is a word that has no legal meaning.142 Given that no one seems too confident as to how terrorism might be defined, or indeed what it is supposed to be, this is perhaps not so surprising.143 The discourse of terrorism has always proved to be an opaque and elusive one, possessed of what Michel Foucault confirms is a magical aspect, of what Edward Said terms fantasies and fixations.144 It is for this reason, likewise, that the battle between terrorist and counter-terrorist has so often descended into a battle between alternative narratives.145 At this point, as we try to pick our way through the rhetorical, as well as jurisprudential, miasma, the value of an alternative literary engagement begins to look ever more persuasive; for as the doyenne of terrorist studies, Walter Lacqueur, has admitted, fiction holds more promise for the understanding of the terrorist phenomenon than political science ever can.146
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For the full judgment in the so-called Belmarsh detainees case, see A, X and Y v Secretary of State for the Home Department [2002] EWCA Civ 1502. Commentaries on the case, the virulence of the judgment, and the tangible sense of impotence which this virulence seemed to betray, are various. For more perceptive commentaries, see A Tomkins, Readings of A v Secretary of State for the Home Department [2005] Public Law, particularly 2635; K Ewing, The Futility of the Human Rights Act [2004] Public Law 829; C Walker, Prisoners of War all the Time [2005] European Human Rights Law Review 6168; and K Starmer, Setting the Record Straight: Human Rights in an Era of International Terrorism [2007] European Human Rights Law Review 127. See R Higgins, The General International Law of Terrorism in R Higgins and M Flory (eds), Terrorism and International Law (Routledge, London 1997) 1314, 28. In a slightly odd juxtaposition, perhaps, Jean Baudrillard reaches a similar conclusion, observing that terrorism itself, as a concept, has no meaning. See his The Spirit of Terrorism (Verso, London 2002) 57. For a more recent, post-9/11 echo of Higgins doubt as to the efficacy of a legal definition of terrorism, see V Lowe, The Iraq Crisis: What Now? (2003) 52 International and Comparative Law Quarterly 2003, 864. As the doyenne of terrorism studies, Walter Lacqueur, admits, any attempt at a definition is bound to fail, for the simple reason that there is not one but many different terrorisms. See his Terrorism (Weidenfeld & Nicolson, London 1977) 46. For a similar conclusion, see A Chaskalson, Counter-Terrorism, Human Rights and the Rule of Law (2008) 67 Cambridge Law Journal 76. See M Foucault, Society Must Be Defended (Penguin, Harmondsworth 2003) 68, 72, 26570, and J Pilger, Tell Me No Lies (Vintage, London 2005) 597, quoting Said. See L Freedman, Terrorism as Strategy (2007) 42 Government and Opposition 31617. Lacqueur, Terrorism (n 143) 14950.
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Politicians may be struggling to make sense of terrorism, and lawyers of counterterrorism provisions, but dramatists and novelists, not bound by the same determinant anxiety, have long sought to comprehend its deeper ethical, as well as literary and cultural, sensibilities. This much has been recently confirmed by Nussbaum, noting that the events of 9/11, if nothing else, have served to test the strength of our deeper commitment to the principles of justice, reminding us along the way that Compassion and terror are in the fabric of our lives.147 More than ever, she argues, in the aftermath of the events of September 11th, we need to cling to the hope that compassion nurtures, to our residual belief in liberalism and tolerance as defining political ideals, and democracy as the best instrument for preserving them. Against the reductive nihilism of a supposed war on terror, she rightly surmises:148
We will achieve no lasting moral progress unless and until the daily unremarkable lives of people distant from us become real in the fabric of our own daily lives, until our everyday eudaimonistic judgements about our important ends include them as ends, not just as temporary players in a drama in which we are the central actors.
She then concludes, with compelling eloquence:149

As Euripides knew, terror has this one good thing about it: It makes us sit up and take notice It could be the stimulus for blind rage and aggression against all the opposing hockey teams and bad umpires in the world. But if we cultivate a culture of critical compassion, such an event may, like Hecubas Trojan cry, possibly awaken a larger sense of humanity and by a vivid sense of the real losses and needs of others.
The canon of what might be termed, for reasons of convenience, terrorist literature is historically long. It can, indeed, be traced back to Euripides Women of Troy; the presentation before an Athenian audience of the horrors which attended the semi-mythic sack of Troy.150 The canon can just as easily compose texts as obvious as Shakespeares condemnation of the intended Powder Plot of 1605 in Macbeth, and as allusive as Emily Bronts Wuthering Heights, replete with its elusive references to Jacobin iconography in the chaos that pervades the terminally dysfunctional Earnshaw family.151
147 148 149 150
151
M Nussbaum, Compassion and Terror in J Sterba (ed), Terrorism and International Justice (Oxford University Press, 2003) 231. Nussbaum, Compassion (n 147) 249. Nussbaum, Compassion (n 147) 251. A presentation which Euripides intended as a cautionary commentary on the brutality with Athens had recently pressed its military campaign against the Melians. For this allusion, see Nussbaum, Compassion (n 147) 230. For closer studies of these texts as part of the (counter) terrorist canon, see I Ward, Terrorists and Equivocators (2007) 1(1) Law and Humanities 11131, and Emily Bronte and the Terrorist Imagination (2008) 89 English Studies 52451.
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More generally, however, critics tend to identify the origin of a distinctive modern genre of terrorist literature in novels such as Conrads The Secret Agent, Dostoevskys The Demons and Stevensons The Dynamiters, all of which engaged contemporary concerns regarding late 19th century anarchist violence.152 It is not just that these novels provide a testamentary supplement to political, cultural or indeed legal histories of terrorism and counter-terrorism. It is that they can, as Nussbaum suggests, help us to engage a more subtle, ethical comprehension too. There is, for example, something timeless about the words that Conrad puts into the mouth of his counter-terrorist detective, Inspector Heat, on viewing the remains of the body of one failed bomber; the absurdity and futility of a life lost, the shattering violence of destruction, the ages of atrocious pain and mental torture that can be contained between two successive winks of the eye.153 There is a passion for humanity here, as one contemporary reviewer of Conrads novel perceptively noted, of a kind perhaps which is peculiar to the narrative imagination; of the desire to construct hope, as Conrad himself put it, from the starker experience of apparently irreconcilable antagonisms.154 It is unsurprising that the events of 9/11 have spawned their own particular sub-genre of terrorist literature. For a brief moment, as Martin Amis observed, the pen was emasculated, quieted by the seeming enormity of the event.155 In the years that have since passed, however, numerous plays and poems and novels have been written about 9/11 and perhaps most importantly its deeper cultural and political contexts and consequences. If the jurisprudence of 9/11 and the war on terror which has followed is characterised by its confusion and perhaps its impotence, the literature of 9/11 has become ever more confident and confrontational. Two species of this genre, or sub-genre, are worthy of immediate note: verbatim drama and the emergent 9/11 novel. The former dramatic genre is not, of course, restricted to the subject of terrorism. But it has proved to be particularly popular amongst dramatists who have sought to engage the war on terror and its various political, cultural and legal consequences. Compelling examples include Robin Soans Talking to Terrorists and David Hares coruscating critique of the war on terror, Stuff Happens, the title of which is taken from US Defence Secretary Rumsfelds notoriously inept, and tactless, aside, when questioned about civilian casualties suffered during the US bombing of Baghdad.156 A third such
See Ward, Terror (n 133), 1257. Conrad, The Secret Agent (Penguin, Harmondsworth 2004) 65, 6872. 154 Quoted in Ward, Terror (n 133), 144. 155 See M Amis, The Second Plane (Jonathan Cape, London 2008) 12, admitting to a sense of gangrenous futility in the days and weeks which followed 9/11. Susan Faludi makes a similar confession, in Terror Dream (n 135) 339. 156 An observation which, as Norman Mailer observed, revealed an arrogance that was peculiar even by the exacting standards set by members of the Bush administration. See N Mailer, Why are we at War? (Random House, London 2003) 15. For a similar muse on the phrase, see Hares own observations in Obedience, Struggle and Revolt (Faber and Faber, London 2005) 1937.
152 153
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contribution is Vera Brittain and Gillian Slovos Guantanamo, which moves for the most part around the serial injustices that beset the so-called Tipton Three. The observation, articulated in the play by their lawyer Gareth Pierce, has a particular pertinence and poignancy too: I think perhaps were very calloused. We read, we watch, we hear about atrocities we know what mans inhumanity to man consists of, we know all that, but we dont sufficiently register it.157 Regardless of their literary merit or demerit, plays such as Guantanamo seek to overcome precisely this resistance. As to the emergent genre of the 9/11 novel, defining contributions here include Mohsin Ahmeds The Reluctant Fundamentalist, John Updikes The Terrorist and Don DeLillos The Falling Man. Released from the shackles of integrity demanded of the verbatim dramatist, these novels are able to excavate the deeper ethical consequences of 9/11 still further, of the kind precisely projected by Nussbaum. An instance, as beautiful in its imagery as it is horrifying in its implication, is DeLillos description of the iconic falling man, spoken by his protagonist Lianne:158
It hit her hard when she first saw it, the day after, in the newspaper. The man headlong, the towers behind him The man with blood on his shirt, she thought, or burn marks, and the effect of the columns behind him, the composition, she thought, darker stripes for the nearer tower, the north, lighter for the other, and the mass, the immensity of it, and the man set almost precisely between the rows of darker and lighter stripes. Headlong, free fall, she thought, and this picture burned a hole in her mind and heart, dear God, he was a falling angel and his beauty was horrific.
V It might be countered that a study of Euripides has an obvious place in courses on Greek tragedy; that a student who pretends to a knowledge of Shakespeare ought to know a bit about Macbeth; that there is a place for the study of the contemporary American novel. But what has this to do with law, still less with debates regarding legal education? To this, I would simply reiterate what has gone before: that a study of law which embraces alternative disciplines is a necessarily richer study; not just because there is an intrinsic merit in reading Greek plays or modern novels, but because doing so will make for a better lawyer. A law student who has stopped to think about the injustices described in plays such as Stuff Happens and Guantanamo, who contemplates the implications of DeLillos falling man, who can contextualise the events of 9/11 because he has encountered the similar invocations of apocalypse in Euripides and Shakespeare, will be better equipped to discern the dangerous idiocy which injunctions to kick ass import, as
157 158
V Brittain and G Slovo, Guantanamo (Oberon, London 2004) 5152. D DeLillo, The Falling Man (Picador, New York 2007) 222.
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well as the darker dangers which find statutory expression in ATCSA and the 2006 Terrorism Act. All law, it is often, and justifiably, argued, has a political aspect; and pretty much all the way down. The veracity of this argument is perhaps clearest of all, however, in those areas of jurisprudence which fall within the broader remit of public law, and associated aspects of civil liberties and human rights. The legal and extra-legal consequences of 9/11 are of huge import. The challenges they represent, against principles such as the rule of law, the separation of powers, fundamental human and civil rights, are no ordinary principles; they go to the very heart of what a liberal democracy is supposed to cherish. So much was made plain by the various judgments of the Appellate Committee of the House of Lords in the Belmarsh detainees case. As Lord Hoffmann confirmed:159
Terrorist violence, as serious as it is, does not threaten our institutions of government or our existence as a civil community. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.
If we are indeed serious about the role of Higher Education in general, and legal education in particular, as a vehicle for nurturing the ideals of a liberal democracy, no matter how much we might choose to squabble about the niceties of particular ideas of liberalism, and indeed liberty, we must recognise an overarching responsibility to ensure that our students are encouraged to think long and hard about these challenges; not just their legal efficacy, the appropriateness of counter-terrorist measures as legal or extralegal instruments, but also the broader consequences for the political society in which we live, and the culture which sustains it. The case for crossing cultural and disciplinary boundaries, in order to resuscitate our democratic imagination, has rarely, I would suggest, been stronger. Of course, the invocation of literature as a supplement to the often infuriatingly elusive study of terrorism and counter-terrorism law and policy is particular. But there is, I would argue, a broader pedagogical implication. If justice is the primary intellectual concern of law students, as it surely is, then they too must tread this margin, leavening their reading of statutes and cases and learned articles in learned law reviews with readings of Euripides and Shakespeare, Conrad, Hare and DeLillo. Stories, it has been recently argued, can perform multiple functions in the law classroom, allowing us to uncover a more layered and refracted reality than is immediately apparent in the stock stories of law and its systems.160 It is here that the culture of justice is written.161 And it is not, of
At paras 8687. See N Bohler-Muller, The Challenges of Teaching Law Differently: Tales of Spiders, Sawdust and Sedition (2007) 41 Law Teacher 58. 161 Walker, Pedagogies (n 14) 12.
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course, simply a matter of chronicling this composition; of hearing the voices which, as Ariel Dorfman puts it so beautifully, otherwise lie hidden at the bottom of the rivers of silence of humanity.162 It is also a matter of experiencing it, of gaining a familiarity with it, ultimately of feeling it. More than any other discipline, literature can make lawyers kinder and more helpful. It can make them, in simple terms, better lawyers.163 It is for this reason that literature in particular, and the humanities in general, are often invoked by those keenest to impress a deeper ethical component in legal education.164 Literature is not, of course, alone in demanding an imaginative engagement. But few disciplines celebrate the engagement so joyously. Literature makes for better lawyers. And better fellow citizens too, better human beings. It breeds, most obviously, a heightened sense of empathy and concern.165 The better lawyer, as Kronman confirms, is the lawyer who appreciates that the depth of her wisdom is defined by the extent of her capacity for sympathy.166 As David Hume observed, nearly two centuries ago:167
No quality of human nature is more remarkable, both in itself and in its consequences, than that propensity we have to sympathize with others, and to receive by communication their inclinations and sentiments, however different from, or even contrary to our own.
Of course, the argument should not be taken too far, and we must remain wary of fetish and disciplinary imperialism alike. A reading of Euripides or Shakespeare or Conrad will not alone make for a good lawyer, any more than a reading of Donoghue v Stevenson or Rylands v Fletcher might. But a reading of one without the other will probably sell a law student short. It will challenge them less, make them think less. It will rob them, too, of that sense of intellectual optimism and excitement the loss of which Peter Goodrich famously decried: Law school stole my hopes of change and robbed me of any surviving sense of the relevance of my inner world, of poetry, of desire or dream, to the life of the institution. My experience of law school was of the denial of the relevance of my experience of law school.168 It will rob them, in short, of their humanity. The very essence of a commitment to the democratic imagination, and it might
162 163 164 165 166 167
168
See A Dorfman, Other Septembers, Many Americas: Selected Provocations 19802004 (Pluto, London 2004) 232. For this supposition, see variously Twining, Context (n 1) 20310. See here Webb, Ethics (n 25) 147, and also Nicolson, Education (n 25) 1512, stressing the importance of developing amongst students a necessary moral sensitivity and affective capacity. So much was acknowledged in Bernard Cricks influential defence of citizenship education. See his The Presuppositions of Citizenship Education (1999) 33 Journal of Philosophy of Education 3445. A Kronman, The Lost Lawyer (Harvard University Press, Cambridge MA 1993) 6676. D Hume, A Treatise of Human Nature (Oxford University Press, 1978) 316. A similar statement is to be found in Adam Smiths Theory of Moral Sentiments, composed shortly after. Writing about his famous spectator theory, Smith suggested that pity or compassion is the most striking form of empathy nourished by our capacity to judge. See A Smith, The Theory of Moral Sentiments (Oxford University Press, 1976) 9. Goodrich, Tower (n 10) 59.
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be argued the legal imagination too, is a determination to nurture this sense of poetry, and with it this sense of humanity; for to see it without feeling it, as Rousseau observed, is not to know it.169
169
From Emile, quoted in Nussbaum, Upheavals (n 96) 323.

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(2009) 3(1) Law and Humanities 87112

Legal Education and the Democratic Imagination

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She then concludes, with compelling eloquence:149

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Legal Education and the Democratic Imagination

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Legal Education and the Democratic Imagination

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From Emile, quoted in Nussbaum, Upheavals (n 96) 323.

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