The Purer Fountains: Bacon and Legal Education
36 Pages Posted: 7 Feb 2005
Today, the classical underpinnings of American legal education are under intense critical review. The dominant pedagogy, the case book and the Socratic method, were established by Christopher Columbus Langdell (1806-1906) at Harvard Law School more than a century ago. Together with Langdell's first year curriculum, which was exclusively focused on Anglo-American common law doctrine, and his emphasis on a competitive, anonymous graded meritocracy, this system still exercises an incredible grip on elite American law schools. But Langdell's 19th Century model has now been challenged by many rivals, including critical legal studies, law and economics empiricism, global curriculums, and clinical instruction.
As is so often the case, Bacon anticipated these major forces of change. In his great De Augmentis Scientiarum (hereafter, De Augmentis), Bacon attacks the narrow parochialism of the common law pedagogy of his day. For at present there are nothing but schools and institutions for multiplying altercations and controversies on points of law, as if for the display of wit. And this evil is also an old one (Spedding ed., V, 108 De Augmentis Aphorism 93). Attacking reliance on decided judicial cases and on the parochial, prevailing common law treatises and pedagogy, Bacon evolved a new system of legal instruction based on empirical observation, distilled into maxims or aphorisms, one that sought true global significance and universal scientific legitimacy. [T]here are certain fountains of natural equity from which spring and flow out the infinite variety of laws which individual legal systems have chosen for themselves. And as veins of water acquire diverse flavors according to the nature of the soil through which they flow, just so in these legal systems natural equity is tinged and stained according to the site of territories, the disposition of peoples, and the nature of commonwealth. It is worthwhile to open and draw out the purer fountains of equity, for from them all amendment of laws in any commonwealth must be sought. The Aphorismi (Neustadt, ed., 273). This paper will set out Bacon's philosophy of legal education, analyze its fundamental pedagogical and doctrinal elements, and examine its lessons for American legal education today.
In so doing, it will be necessary to traverse a minefield of controversy. As E.O. Wilson has so powerfully described in his book Consilience: The Unity of Knowledge (1998), Bacon was the grand architect of an enlightenment dream that called for the illumination of the moral and political sciences by the 'torch of analysis.' (Edward O. Wilson, Consilience: The Unity of Knowledge (New York, 1998), p. 23. (Hereafter, Consilience.)) Bacon was also devoted to a belief in a unity of knowledge, relying on the common means of inductive inquiry that might optimally serve all branches of learning. (Consilience, p. 27). In E.O. Wilson's words, Bacon envisioned a disciplined and unified learning as the key to improvement of the human condition. (Consilience, p. 27).
But the unity of the modern legal academy has been fragmented into academic specialties and increasingly divorced from the experience of law practice. Post-modern and post-structuralist ideologies have attacked any pretense neutral and objective rule of law that could be taught in a formal, external setting, like mathematics or physics. Increasingly, law, and legal education, are seen as devoid of external truths. In E.O. Wilson's words: In the most extravagant version of this constructionism, there is no 'real' reality, no objective truths external to mental activity, only prevailing versions disseminated by ruling social groups. Nor can ethics be firmly grounded, given that each society creates its own codes for the benefit of the same oppressive forces. (Consilience, p. 40).
Hence comes the post-modernist prohibition against universal truth . . . which can have particular force in modern legal pedagogy.
Equally important, law practice itself has changed. The three qualities of modern law, described prophetically by Max Weber (1864-1920) and articulated in his great Law and Economy and Society, seem to be coming true. First, the legal ignorance of the layman has increased, as legal rules become more specialized, complex and technical. Most lawyers in modern firms are divided into such specialties, and usually have little or no idea of what their partners and associates actually do. Second, the anti-formalistic tendencies of modern legal development have led courts and tribunals to increasingly depart from objective or universal rules, and to rely instead on economical utilitarian meaning. Finally, there is the lay justice and corporate tendencies in the modern legal profession. Weber adds, The use of jurors and similar lay judges will not suffice to stop the continuous growth of the technical element in the law and hence its character as a specialist's domain.
Add to those changes the rapid shrinking of world cultures by improved communications and the welcome, and dramatic, increase in cultural diversity throughout American law schools and American society generally, and it becomes clear that conventional legal pedagogies and curricula will come under great stress. The century old orthodoxy of American legal education could soon be shattered into a hundred unrelated pieces. Can Bacon help us?
Keywords: Bacon, legal education, pedagogy, Socratic Method
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