The Practice of Law and the Intolerance of Certainty

29 Pages Posted: 23 Dec 2014 Last revised: 6 Feb 2015

See all articles by Stephen Tang

Stephen Tang

ANU College of Law

Tony Foley

ANU College of Law

Date Written: December 22, 2014

Abstract

This paper seeks to challenge a lingering view that law is and should be intolerant of uncertainty and must strive for certainty. Although inconsistent with the embedded uncertainty and ambiguity of law as a system, there is still an implicitly accepted view that the practice of law, and the role of lawyers, is to make determinate the indeterminate, to use legal rules to remove the uncertainty from human existence. This paper provides a preliminary sketch of an alternative and humanising epistemology of law in practice, one that embraces and makes adaptive use of uncertainty at the level of psychological experience, rather than just at a conceptual or institutional level. It focuses its attention on the preparation for practice of new lawyers and their lived experience of uncertainty as one of the defining aspects of their transition from law student. In the process, the paper challenges the conventional perceptions that thinking like a lawyer involves an additive set of skills sitting above and beyond those of ordinary thinking. Learning to think like a lawyer is more often subtractive, leaving out the messy world and in the process leaving out the messiness of uncertainty. As an alternative, the paper examines what many good lawyers have taught themselves: the importance of embracing uncertainty, complexity and acquiring a healthy intolerance of certainty. It suggests these skills and habits would be better taught and learned in advance of practice.

Keywords: Legal practice, uncertainty, legal education

Suggested Citation

Tang, Stephen and Foley, Tony, The Practice of Law and the Intolerance of Certainty (December 22, 2014). University of New South Wales Law Journal, Vol. 37, No. 3, 2014, 1198-1225, ANU College of Law Research Paper No. 14-44, Available at SSRN: https://ssrn.com/abstract=2542033

Stephen Tang

ANU College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

Tony Foley (Contact Author)

ANU College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia
02 6125 1403 (Phone)
02 61253518 (Fax)

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
147
Abstract Views
951
rank
217,128
PlumX Metrics