Tan, S H --- "Teaching legal ideals through jurisprudence" [2009] LegEdDig 23; (2009) 17(2) Legal Education Digest 27

• Teaching legal ideals through jurisprudence

---

Teaching legal ideals through jurisprudence

S H Tan

43 (1) The Law Teacher, 2009, pp 14–36

The value of legal theory or jurisprudence in legal education has been the subject of considerable debate. While some law schools require students to read jurisprudence, detractors in academia and practice bemoan its abstraction and doubt its utility.

In light of such controversy over the worth of theory, this article examines the value of teaching jurisprudence in law schools, with a focus on law schools in the common law tradition.

A random check on the web pages of several law schools in the common law tradition revealed that jurisprudence is not mandated in any of the United States or two Canadian law schools checked. It is mandated in seven out of 11 United Kingdom law schools, one out of three Australian law schools, and the University of Hong Kong. In the National University of Singapore, an introductory course was mandated from the academic year 2002-2003: ‘Introduction to Legal Theory’ is currently taught to the first year cohort divided into sections run autonomously by different teachers. The description offered in this article pertains to the section I run.

Law schools have a special responsibility to get students to think about the nature and legitimacy of law, and how law is related to justice, morality, politics and reason. These questions are not adequately addressed in a course on professional ethics, or teaching jurisprudential perspectives in doctrinal subjects. Further, the objective of a compulsory jurisprudence course, as opposed to an elective, should be to inculcate a concern for ideals underlying the legal enterprise. In terms of content, this is best achieved by a thematic teaching of jurisprudence, rather than one structured along the lines of existing theories of law.

Self-examination through jurisprudence acts as ballast against the moral transformation of the law student which results from two forces in legal education: first, doctrinal education, legal reasoning and thinking like a lawyer; second, the ideal of advocacy and the perception of the requirement of client interest.

In relation to the first, legal education rests, as some suggest, ‘on a fundamental belief in the separation of law and morality’, and ‘[c]urrent pedagogical practices and values implicit in law teaching push students to replicate this jurisprudential separation of law and morality in their conceptions of professional responsibility’. Such socialisation into the lawyer’s role may occur when students are taught to distil rules from cases and learn to abstract objective generalisations of facts. It may occur when they are told to be objective rather than bring in their own moral values, leading to a sense that legal reasoning is objective and special, different from controversial moral reasoning which is subjective and which they soon learn to banish as emotionality from their legal thinking. Soon, they define ‘moral dilemmas in legalistic terms’ and ‘[solve] them with reason by dispassionate answers that fit into some legal classification governed by some legal principle’.

Insofar as some schools of jurisprudence challenge the special nature of legal reasoning, they raise issues and unveil assumptions taken for granted in doctrinal legal education, and heighten students’ critical sensitivities to these issues and assumptions when they are learning doctrinal subjects. The intrinsic value of jurisprudence, if readings are carefully selected, is its ability to raise critical awareness and teach students to raise questions from their own moral or political viewpoints instead of thinking of them as illegitimate.

Through jurisprudence, the foundational assumptions of legal systems may be unpacked, and students invited to consider these in light of their own comprehensive worldviews and determine whether they conform to their own ideas of procedural, substantive or social justice. While professional ethics courses tend to focus on posited ethical codes, theoretical and anti-necessitarian examination in jurisprudence of theories of lawyering challenges students as to what constitutes ethical counseling or advice for the client. Students may be apprised of the possibility of discouraging clients ‘from using formalistic technicalities to effect insidious treachery against the spirit of the law’ and alternative ways of practice.

Some have argued that it suffices for teachers of doctrinal subjects to teach jurisprudential perspectives. I would suggest, however, that this is inadequate. First, the expanding content and complexity of substantive law subjects would limit discussion, even as teachers already struggle to teach the legal rules. Second, teachers who are taught doctrinally may have to be geared up to teach jurisprudential perspectives. Third, teachers of particular areas of law may hold strong views on those areas and may, given the limited time for teaching, propound only one view. While a jurisprudence teacher faces the same temptation to expound her own persuasions, the teacher of a mandatory jurisprudence course has a special responsibility to teach alternative perspectives.

The effect of a heightened moral consciousness developed by thinking through issues in jurisprudence is the development of moral character and professional identity. Being exposed to such issues in a wholly theoretical course undistracted by the stress of learning doctrines is important as socialisation through the doctrinal curriculum tends to be accompanied by a de-emphasis on theory.

The autonomy a teacher has in designing a jurisprudence course is greater than that in designing a substantive doctrinal course, in which particular legislation and common law cases must be taught.

Books dealing with schools of jurisprudence tend to categorise theories into chapter divisions of natural law theory, legal positivism, utilitarianism, historical jurisprudence, sociological jurisprudence (sometimes referred to as empirical or functionalist theories), Marxism, Scandinavian realism, American legal realism, justice theories of Rawls and Nozick, and the enforcement of morality. Books addressing the subject of jurisprudence thematically may explore the topics of legal and moral obligations, rights, responsibility, adjudication and legal reasoning, gender and the law, liberty and the enforcement of morality, justice and the rule of law, philosophical foundations of contract, tort and criminal law, and constitutional law issues such as freedom of expression and equality.

I suggest that an effective mandatory jurisprudence curriculum requires students to explore the philosophy of law thematically rather than through schools of philosophy or theories of law. Thematic teaching does not limit the students to the perspective of the theorist in question. One could teach a larger number of views and facilitate the students’ choice among alternatives, whereas if theories are taught, there is only so much time to teach a few theories meaningfully.

Thematic teaching could be done through concrete examples that present students with questions of law’s connection with power, justice, morality, politics and reason, and cases through which students question whether legal reasoning is special, political or haphazard. Concrete examples and real cases contextualise theory for the students.

The eventual professional vision of justice is served through giving students a broader perspective of the law and inculcating a concern for values of the law. A course that is thematically structured is better geared to achieve such objectives. Further, I would argue that such inculcation is better done earlier than later in legal education, so that students may begin to see other compulsory doctrinal subjects through an examined and critical lens, instead of simply accepting current modes of discourses. Also, it is possible that students are more open to theory at a stage before their minds are arguably ossified by modes of legal reasoning.

In this Part, I share my experience in designing and teaching a compulsory introductory jurisprudence course in the National University of Singapore, with a view to inculcating a concern for legal ideals.

The course is divided into eight parts and taught in the following order (unequal weightage):

(1) Legal education, the construction of boundaries of law and the uses of philosophy: Thus far, students have covered one semester of course work covering torts, contract, an introduction to the legal system, and a skills course on legal analysis, writing and research. I invite them to step back to consider how the idea of legal reasoning and discourse in classes shape their view of the law and possibly construct boundaries of law or what is ‘legal’. I ask them what they understand when they think of law and legal reasoning, whether they perceive law to be related to or separate from morality and politics, and whether law’s rationality is peculiarly legal. Through this, students may re-imagine boundaries of law which they had hitherto accepted as necessary.

(2) Perspectives of law: the nature of disagreement about law and theories about law: Through a common law case (McLoughlin v O’Brian) and a case involving the interpretation of a statute (Riggs v Palmer), I consider the nature of disagreement about law. In McLoughlin, judges had to consider whether a person causing an accident on the road owed a duty of care to a person who suffers nervous shock as a result of perceiving the aftermath of the accident – something not encountered in previous cases. McLoughlin showcased the concerns of the judges in developing the law. In Riggs, judges considered whether an heir named in a will was entitled to inherit when he murdered the testator, in view of the law that a will signed in the presence of a certain number of witnesses was valid and effective.

From this, students are introduced to two major contending theories about law – legal positivism which suggests that law is determined by the master rule of a particular society, and natural law theory which suggests that law must conform to fundamental principles of morality or justice. Students are shown how differing views in real cases hinge on the definition of law to which lawyers and judges subscribe. The aim is to highlight a possible value judgment involved in each conclusion about what law is – from the advocate to the judge to the citizen.

(3) Rule of law: Students are likely to have heard of an old adage that even the king is subject to the law. They examine characteristics of the rule of law, in contradistinction to the rule of man. They consider a sceptical (and also Marxist) view that law is politics and serves to perpetuate existing hierarchies and further the interests of the rulers, and are invited to reflect on their experience to determine if this is true. Students read excerpts of Lon Fuller’s work on the internal morality of law and E P Thompson’s work which argues that law is an unqualified human good.

(4) Law, morality, justice and liberty: This is a major segment of the course during which students consider law’s underlying values of justice and morality. As some philosophers argue that laws posited by legal systems have to comply with the law of reason or morality, they have to defend their notion of morality. What arguments are there for and against the idea of moral absolutes or objective values or higher principles in a pluralist, postmodern world? Students reflect on the connection between law and morality, and whether there is minimum moral content in every legal system in the world in seeking to prevent violence, theft and the like.

One topic concerns the manner in which existing laws enforce controversial moral notions and impinge on the liberty of the subject. Criminal laws which prohibit consensual sexual acts (for example, adult incest, bestiality and homosexual acts) which apparently harm no one provide a useful launch pad for this issue.

Another topic concerns the relationship between rule-following and justice. Is it always just to apply all rules, even substantively unjust ones? What injustice is done, for example, if a merciful judge deviates from an unjust law that requires him to put to death a person on the basis of race alone, and lets off one member of the race who has been brought before him? What is the worth of formal justice, if substantive justice is not done? Further, with the case study of Nazi laws, students analyse obligations. Is a legal obligation different from a moral one?

(5) Foundations of the legal order: Students move away from individual laws to consider the foundation of the legal order. If law constrains our wild lawless freedom to give us a freedom under law (to borrow Kant’s phrases), what justifies the constraints that law imposes upon our freedom? Students consider whether the legal framework should respect maximum individual autonomy or promote particular ideas of the good life. I use the example of laws regulating abortion: by setting students the simple task of articulating reasons they would use or have heard others use to justify prohibiting or allowing abortion, students experience a debate in the public square on this issue in real time.

(6) Adjudication and legal reasoning: As some law students will spend some of their lives arguing before judges, they are asked to consider whether there is a right answer that the judge must arrive at, and the source of such a right answer, if any. They explore the liberal perspective propounded by such as Ronald Dworkin that law is rational and that coherent ideals are found within the law which generate legal rules that apply to specific fact situations. They explore critical perspectives – the American legal realist view that law is just politics and legal rules are not the heavily operative factor in decisions, and the critical legal studies view that contradictory ideals exist within the law, which mirror the competing ideals we experience within our larger social life.

(7) The constitution and jurisprudence: Students are introduced to the idea of constitutionalism, which is applicable in Singapore. How the preceding topics fit in with the existence of a text in the country which purports to be the supreme law of the country is examined.

(8) Role of the lawyer and professional identity: Students relate what they have learnt to their future role as a lawyer. How would their view of law impact on the way they practice law and their conception of the professional duty of the lawyer? The impact of the dominant metaphor of the lawyer as a ‘hired gun’ in shaping the student’s thinking about professional identity is assessed, and alternative metaphors, such as the lawyer as a healer of conflicts or a defender of justice, considered.

While every good philosopher is aware of her personal worldview, my mission is not to impart mine, but to challenge students to formulate theirs. In terms of pedagogy, I have found the Socratic techniques of the dialectic and the elenchus helpful. I hear what my students have to say on a particular subject, put to them further questions to elicit an elaboration of the same subject, challenge them about possible contradictions, and encourage them to reassess their commitments or reformulate their views accordingly.

Controversial current issues in the public square are employed to spark interest. Last year, Singapore’s criminal laws inherited from its British colonial masters were hotly debated in the public square and the legislature. In particular, there was an outcry over the retention of what was perceived to be an archaic provision of the law prohibiting male homosexual acts, with equally staunch defence of such retention by conservative groups in the country. I used the law in question as a launch pad for questions about the proper function of criminal law, the relationship between law and morality, the legitimate basis of laws in general, and the extent to which legal systems should promote individual liberty. While similar provisions of the law had been debated in classic works of jurisprudence in England in the famous Hart-Devlin debate decades ago over the Wolfenden Committee Report, apart from requiring students to read these works, I screened YouTube clips of speeches by members of Singapore’s legislature to contextualise legal philosophy to Singapore. The familiarity of context and currency facilitated debates.

In official student feedback conducted by the university administration on the course, students have appreciated the employment of culturally current tools to teach abstract philosophical issues, as they are able to see the real world implications of the theoretical debates covered in class. For example, clips from movies such as Schindler’s List and Emperor’s Club have been used: a scene of a woman describing random shooting in the first movie was used to illustrate the idea of arbitrary power that leaves citizens with no means of being guided by rules; a scene of the teacher adjusting the marks of a student to encourage him because he had showed improvement from lackadaisical days was used as a launch pad for the topic of fairness and what it entails. The use of ‘everyday’ materials further becomes an effective trigger when students encounter such materials in their lives outside school as students have learnt to spot the jurisprudential perspectives by example in their classes.

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

Assessment takes the form of a written examination counting for 75 per cent of the grade in the course, and class participation counts for the remaining 25 per cent. The latter component is made up of oral participation in class as well as written participation in an online discussion forum. The latter mode of continual assessment helps those students who are too shy to speak up in a class of 80 students, and also renders the assessment of participation fairer given the limited airtime students have even in a Socratic-style seminar. It is also intentionally chosen over a mid-term essay for two reasons related to the objective of the course: first, it allows students to selectively write on topics they are passionate about, rather than forcing them to answer particular questions; second, one hopes that students will come to enjoy standing up for their views, and learn to engage in debates in the public square.

One major contributing factor which students identified in official feedback on the course was teacher-participation in the online forum, which struck a balance between giving them feedback, raising further questions to compel a deeper analysis, correcting fallacious statements of the materials when necessary, and yet not forcing premature ‘right answers’ or cutting off dialogue.

I want students to engage not just their minds, but their hearts, and to come up with their own theory about the legal process, and decide what role they will play in it in future. Awakened to legal ideals, my hope is that my courses play a part in the moral transformation and development of professional identity of my students.

The classroom experience must translate into the daily thought-lives of the student. When the teacher of legal philosophy sees the empowerment of the student in the debates in the public square, when philosophy infiltrates into activities unrelated to law, these may be said to be the first fruit of values education, the ripening of which lies in the translation into daily consciousness and social action beyond legal education. The citizen graduates from law school more aware of her philosophy and ready to engage in shaping laws in a deliberative democracy. The advocate does not unthinkingly accept the law but questions what purpose it serves, refusing to meet only the minimum standard of professional codes of ethics or attend only to the letter of the law in representing clients.