A piece I wrote for some NUS publication
WHAT MAKES A GOOD LEGAL EDUCATION
Seow Zhixiang
Law, Year II
Many laypersons, and not a few lawyers, believe that a legal education is all about learning an allegorical book of rules. Apply rule A in situation X, rule B in situation Y, and so on. But this conception of legal education is necessarily incomplete, even if we are prepared to make the wild assumption that rules can be formulated in advance for every situation. An example will serve to illustrate. Imagine a law which imposes a $1,000 fine on persons wearing red socks. It sounds simple enough. But look slightly harder and problems emerge. What about socks that are a deep shade of pink? What, for that matter, is ‘wearing’ – does a sock slung over the shoulder count? These problems, one might say, can be dealt with by tighter definitions. Fair enough. But tight definitions will never quite eliminate the uncertainty inherent in words. Also, words are quite unlike numbers, whose precision increase with the number of decimal places cited. Use more words, and very often the effect is confusion and contradiction.
A more sophisticated legal education would include learning legal principles, such as the celebrated neighbour principle, which simply states that a person must not by her carelessness cause harm to his neighbour. Legal principles can be described as rules which are broader in scope but less precise in formulation than rules of thumb, such as the red socks rule described above. By generalising, legal principles help provide guidelines in solving legal questions when facts do not fit neatly into established rules. For example, the neighbour principle was first applied in the context of ginger beer that was tainted with the mortal remains of a snail, but has now been developed and applied in diverse situations, such as when a solicitor negligently forgot to draw up a will in accordance with his client’s instructions. But even armed with a formidable arsenal of legal rules and legal principles, the lawyer remains ill-equipped. In a famous episode in legal philosophy, it was demonstrated that the United States Constitution could be interpreted consistently with socialist ideology, using only orthodox legal principles. Whatever that exercise revealed about socialism, democracy and capitalism, it certainly laid bare the inability of formal legal principles to produce results acceptable to the judge on the bench or the person on the street.
To make a complete lawyer, therefore, it is necessary to go beyond the incomplete formal law. Lawyers must realise that the law they deal with did not drop from some legal heaven. On the contrary, it would have no meaning apart from the people to whom it speaks and whose allegiance it hopes to command. The law, and those who work with it, must therefore seek to persuade and convince people about the worthiness of its prescriptions. This is what distinguishes the very best lawyers from the merely mediocre. It is equally necessary for both the advocate advancing a seminal argument in the highest appellate court, and the solicitor advising an illiterate old woman on her will. The best judges exhibit this quality – their judgments are tightly reasoned, powerfully persuasive and I daresay accessible to laypersons. And in order to persuade and convince people, the lawyer must first understand them. To this end, other fields of learning – philosophy, economics, psychology, to name a few – are useful. Even more importantly, the lawyer must have the empathy and practical wisdom that comes from working with people, and not relate in a top-down fashion, as people are so apt to do nowadays.
The best legal education must equip aspiring lawyers to achieve all this, in addition to the learning and teaching of the formal law. It might seem to some a tall order, and in these hardnosed days unnecessary to boot. But, for those of us who share the view of Thomas Henry Bingham, an English Law Lord, that law is not merely a set of arid prescriptive rules but is a sacred flame which animates and enlightens the society in which we live, it is a vision that we must try, and try hard, to achieve.
Seow Zhixiang
Law, Year II
Many laypersons, and not a few lawyers, believe that a legal education is all about learning an allegorical book of rules. Apply rule A in situation X, rule B in situation Y, and so on. But this conception of legal education is necessarily incomplete, even if we are prepared to make the wild assumption that rules can be formulated in advance for every situation. An example will serve to illustrate. Imagine a law which imposes a $1,000 fine on persons wearing red socks. It sounds simple enough. But look slightly harder and problems emerge. What about socks that are a deep shade of pink? What, for that matter, is ‘wearing’ – does a sock slung over the shoulder count? These problems, one might say, can be dealt with by tighter definitions. Fair enough. But tight definitions will never quite eliminate the uncertainty inherent in words. Also, words are quite unlike numbers, whose precision increase with the number of decimal places cited. Use more words, and very often the effect is confusion and contradiction.
A more sophisticated legal education would include learning legal principles, such as the celebrated neighbour principle, which simply states that a person must not by her carelessness cause harm to his neighbour. Legal principles can be described as rules which are broader in scope but less precise in formulation than rules of thumb, such as the red socks rule described above. By generalising, legal principles help provide guidelines in solving legal questions when facts do not fit neatly into established rules. For example, the neighbour principle was first applied in the context of ginger beer that was tainted with the mortal remains of a snail, but has now been developed and applied in diverse situations, such as when a solicitor negligently forgot to draw up a will in accordance with his client’s instructions. But even armed with a formidable arsenal of legal rules and legal principles, the lawyer remains ill-equipped. In a famous episode in legal philosophy, it was demonstrated that the United States Constitution could be interpreted consistently with socialist ideology, using only orthodox legal principles. Whatever that exercise revealed about socialism, democracy and capitalism, it certainly laid bare the inability of formal legal principles to produce results acceptable to the judge on the bench or the person on the street.
To make a complete lawyer, therefore, it is necessary to go beyond the incomplete formal law. Lawyers must realise that the law they deal with did not drop from some legal heaven. On the contrary, it would have no meaning apart from the people to whom it speaks and whose allegiance it hopes to command. The law, and those who work with it, must therefore seek to persuade and convince people about the worthiness of its prescriptions. This is what distinguishes the very best lawyers from the merely mediocre. It is equally necessary for both the advocate advancing a seminal argument in the highest appellate court, and the solicitor advising an illiterate old woman on her will. The best judges exhibit this quality – their judgments are tightly reasoned, powerfully persuasive and I daresay accessible to laypersons. And in order to persuade and convince people, the lawyer must first understand them. To this end, other fields of learning – philosophy, economics, psychology, to name a few – are useful. Even more importantly, the lawyer must have the empathy and practical wisdom that comes from working with people, and not relate in a top-down fashion, as people are so apt to do nowadays.
The best legal education must equip aspiring lawyers to achieve all this, in addition to the learning and teaching of the formal law. It might seem to some a tall order, and in these hardnosed days unnecessary to boot. But, for those of us who share the view of Thomas Henry Bingham, an English Law Lord, that law is not merely a set of arid prescriptive rules but is a sacred flame which animates and enlightens the society in which we live, it is a vision that we must try, and try hard, to achieve.
posted by zxseow at
10:49 PM
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