January 25, 2011
FOOD FOR THOUGHT: WHAT CONSTITUTES AN EDUCATION IN LAW? IS LAW A LEARNED OR LITERARY PROFESSION, OR MERELY A PRACTICAL VOCATION?
Gilman M. Ostander, Republic of Letters: The American Intellectual Community, 1775-1865 (Madison, Wisconsin: Madison House, 1999) ("William Blackstone's gracefully written Commentaries became available to American law students in the 1770s; they remained the basic text, especially for self-taught lawyers, down to the Civil War. Blackstone himself was neither a distinguished moral philosopher nor a learned legal scholar, and his Commentaries were flawed by inconsistencies, distortions, and omissions. Blackstone considered English law to be a type of natural law, like the law of gravity, and the Commentaries comprised an undeviating rationalization for the existing order of things. At the same time Blackstone presented a comprehensive account of the law, and of substantive principles underlying the law, and the Commentaries remained the only such account available. 'Jefferson recalled that when was a law student, Coke Littleton was the universal elementary book of law students and a sounder Whig never wrote nor profounder learning in the orthodox doctrines of British liberties. Our lawyers were then all Whigs. But when his black letter text and uncouth, but cunning learning got out of fashion, and the honeyed Mansfieldism of Blackstone became the student's horn book, from that moment, that profession (the nursery of our Congress) began to slide into Toryism.' James Kent, the deeply conservative authority on American jurisprudence, implicitly confirmed Jefferson when he averred that he owed his reputation to one book: Blackstone's Commentaries had been his only text when studying law during the Revolutionary War, but that one text he mastered. Later Kent was put through a full course of readings, including substantial assignments in history, as became customary for law students in the early national period. John Quincy Adams, studying under Theophilus Parsons, read Coke, Blackstone, and other law texts but also Robertson's History of Charles V. Gibbon's Decline and Fall of the Roman Empire, and Hume's History of England. John Randolph, reading law with Edmund Randolph, began with Hume's A Treatise of Human Nature and after he returning the book, he received Shakespeare, to read, then the Scot James Beattie's An Essay on the Nature of Immutability of Truth, Lord Kame's Elements of Criticism and Gillie's History of Greece. Of this course John Randolph exclaimed, 'What an admirable system of study!' The proper study of law had become philosophy, history, and literature." Id. at 102-103. "The conception of the law as the general repository of civilized experience achieved its most authoritative written expression in the commentaries of Story and Kent, and even Story conceded that 'the technical doctrines of jurisprudence . . . must have a tendency to dull that enthusiasm, . . . to obscure those finer forms of though, which give to literature its lovelier, I may say, its inexpressible graces.' By the mid-nineteenth century, with the accumulation of law reports and the increasing division of law into specialized fields, the view of law as a repository of general historical and literary wisdom lost credibility with the legal profession. A writer in the United States Monthly Magazine in 1850 complained that lawyers were no longer sought to attain 'a comprehension of the great principles,the wide, extending analogies, which are everywhere pervading and everywhere giving a reason and consistency to the law.' Others were beginning to affirm that the law was neither a particularly learned nor literary profession but rather a practical vocation." Id. at 104. If legal education is limited to practical vocational training, then the measurement of success--both for the law schools and their students-- will consist solely of whether graduates of those law schools are gainfully employed in the vocation of lawyering. Whether those law schools provide for rich intellectual experiences for their students, whether those law schools broaden the students' intellectual, political, moral, philosophical, literary, etc., perspectives, or whether those law schools produces learned, cosmopolitan citizens, will be deemed irrelevant. It is rather sad to watch the American legal profession steady drift to sidelines of intellectual life in America. Yet, the intellectual class has always been a small community in America. "[Walt] Whitman sought to reach that anonymous serious-minded book-reading and book-buying public that existed throughout the nation, influencing literary culture by what it chose to support through it purchases in the literary line. This class of reading men and women has always constituted no more than a small fraction of the American public, judging by the sales of scholarly and literary books and magazines from the eighteenth century through the twentieth. Republic of Letters is an account of this 'literary class of the United States'--the serious readers and especially writers--from Independence to the Civil War." Id. at xiv. Law students, as do all students, are ultimately responsible for their education because, after all, an education is achieved in the stolen moments of a hectic life, in the wee hours of the night, in the space between the weekend chores and rest, in the moments of solitude, where the students choose between the easy road and the challenging road, between the good enough road and the better road, between the well travelled road and the road less travelled, and between intellectual compromise and intellectual honesty. Neither an education nor an intellectual life is a guarantee of happiness. Moreover, I would suggest that a true education would render most people unfit for happiness. Why? Because they would see more of the underside and unpleasant side of the human condition; because they would constantly wonder how this world could possible be the best of possible worlds; because they would know that they deserve neither most of the bad things nor the good things that happen to them in this life--that it all is lottery. Still, there is truth in this proposition: it is better to be Socrates dissatisfied, then a pig satisfied. So, get a quality education, and know how the world really work, even though it renders you miserable unless you are able to adopt stoicism as one's life philosophy.).