Law, Not Rocket Science
May 11, 2016 (Mimesis Law) — I don’t want to sound like a broken record. (That is a metaphor which the post CD generation probably doesn’t use, but think of Frank Sinatra and 78 and 45 rpm phonographs, when popular music had melody and lyrics had meter.)
Much has been said about dissatisfaction with the practice of law, and disillusion with the justice system. I join, even though I am enthused and excited that my oldest granddaughter is graduating from law school and soon to become a law clerk.
It is perhaps excessively pedantic to theorize about the cause of our present angst being the Enlightenment, but doing so makes a lot of sense to me. With the Enlightenment came the dominance of science as the preferred mental discipline. Much good came of this, but the scientific method also produced some undesirable results.
Rhetoric, the art of persuasion, eventually withered as an academic discipline. Today, the study of history, philosophy and literature is only reluctantly cognizable in the academy. By the late 1800s, the absurd notion that “the Law” is a science became the orthodox belief and the case study method the only acceptable curriculum for law school education. This dominance produced legal positivism, and with it, the end of grace.
For the past one hundred and fifty years, law students have been indoctrinated to assume that law is science, and some positive and remarkable practices and concepts have resulted. But the emphasis on science and positivism has given us a focus on the computer screen.
Lawyers, decisions and legislation now speak in numbers, statistics and probabilities, but these result in what the historian Theodore Porter calls, “a technology of distance.” Clients become abstractions, and solutions to legal dilemma are expressed in metrics.
I see some hope for restoring humanism to the law in the development of clinical education. The hope, however, is not based on the pedagogic rationale of clinical legal education, but rather on the serendipitous experience that the students have from sustained experience with the ambiguities of human foibles. Understanding clients and their needs must precede looking at the internet for an algorithmic resolution of a mechanical problem.
Likewise, scientific jurisprudence has led us to opinions that are determined by their preconceived results rather than the developed perception of how best to accommodate discernible societal values. The practice of law in the coldness of abstraction and distance is not a place that nurtures satisfaction and purpose.
John L. Kane Jr.
Senior United States District Judge (Colorado)