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On how legal traditions shape teaching traditions

Alert readers will have noted that I often write here about education. What happens is that I dash off a piece for my Education Blog, and then say to myself: this will just about do for Samizdata. And since I now find writing adequately for Samizdata harder than for my private blogs, and since Samizdata has many more readers, here is another such piece which I hope will suffice for here, provoked by an essay I am in the middle of reading, by Paul Graham. (Thank you Arts & Letters Daily, a daily resource without which I could not now do.) The first few paragraphs of this esssay grabbed my attention, and I am now about half way through it.

In that previous reaction to Graham’s essay, I made much of the idea of an essay being “persuasive”.

I am right, and wrong, says Paul Graham. Yes, a lot of education is rooted in legal education, but, he says, too much. An essay, he says, is not – or should not be – lawyering:

Defending a position may be a necessary evil in a legal dispute, but it’s not the best way to get at the truth, as I think lawyers would be the first to admit. It’s not just that you miss subtleties this way. The real problem is that you can’t change the question.

And yet this principle is built into the very structure of the things they teach you to write in high school. The topic sentence is your thesis, chosen in advance, the supporting paragraphs the blows you strike in the conflict, and the conclusion – uh, what is the conclusion? I was never sure about that in high school. It seemed as if we were just supposed to restate what we said in the first paragraph, but in different enough words that no one could tell. Why bother? But when you understand the origins of this sort of “essay”, you can see where the conclusion comes from. It’s the concluding remarks to the jury.

As I often find myself saying, to justify my enthusiasm for argument: my dad was a trial lawyer, and so were both my grandfathers. My family’s basic activity when dining, when we weren’t eating or listening to classical music on the Third Programme or Family Fun Chat on the Home Service, was arguing. And if no one was disagreeing with a dominant consensus, someone would, just for the fun of it. “Defending a position” is, I think, a pretty good way to get at the truth, provided more than one position is being defended, which is exactly what is happening when a jury is involved. The adversarial principle is, I would say, a whole hell of a lot better than a “necessary evil”.

Think only of the clash of conclusions – of, in Dan Rather’s words, “political agendas” – that recently got the truth of the Rather documents fracas out into the light of day in the space of a few hours. In our legal world, the advocates start with their rival conclusions and defend them, and attack them, while the judge listens, occasionally asking a question, or insisting that a question already asked be answered. (“The witness will answer the question.”) Also, the judge occasionally, sports umpire style, restrains the advocates if they get too rude, or if they use arguments that are too sneaky. (“I object your honour!” – “Objection sustained.”) In the blogosphere, the ‘judge’ is other bloggers and other journalists, and the ‘jury’ is the people reading it all and buying things and voting for things on the strength of all that arguing and counter-arguing.

On the Continent of Europe their legal tradition is very different from the one shared by Paul Graham and me, and by most of you reading this. There, the judge takes the initiative. He does not merely endure the clash of the advocates and help the jury to decide. He decides, by doing just what Graham says an essayist should do. He searches disinterestedly for the truth. He walks, to use Graham’s excellent metaphor, through the open door into the room where the truth of the matter is to be found, and he finds whatever he finds. Then he announces it, and that is what is true and what is to be done.

These contrasting traditions have a profound effect on the different ways in which education is done in the Anglo-Saxon world and in Continental Europe, or so I am persuasively informed by my continental friends). (By the way, in Scotland, they also have a ‘Continental’ legal system. They do not have judges. They have ‘intendants’ in Scottish courts. I think that is what they are called. That is, active investigators, as in ‘super-intendant’.)

Anglo-Saxon schools are often experienced by their congregations as boring churches in which the God Almighty Preacher says what is what and they, the congregation, just have to suck it up. But it is the very things that these Preachers often say in these churches, to say nothing of all the things said outside of them, that do much to make the congregation so restive. On the Continent, the Teacher/Professeur (the Judge substitute) finds The Truth, and then announces it. Your job as a mere pupil is to learn it, not to argue about it. Anglo-Saxon schools are anarchic dog-fights compared to the average secondary school on the Continent of Europe.

The weakness of the Anglo-Saxon system is that the truth gets lost in the mayhem and din of battle. Juries emerge from trials wondering what the f*** that was all about and having chosen their verdict with a coin toss or because the prosecuting lawyer had a cute smile. We tune into the Internet, and retreat in confusion from the hubbub. School pupils just become confused and give up, steamrollered by their more confident and louder rivals. Or they do not know which is the right answer and hate having to decide it for themselves.

But the weakness of the Continental system is that the actual truth of this or that particular matter may be forbidden or ignored, with only lies or obsolete platitudes about it being taught by the Man At The Front, and these lies and platitudes may not be contested by the peasantry.

It is in the nature of educated people brought up in either tradition, but aware of the existence of the other tradition, that they often perceive only the vices of their own system and cast envious eyes over the fence, or in this case over the English Channel (known over there as ‘La Manche’).

No accident, then, that ‘essay’ is a French word.

So. On with Paul Graham’s essay…

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9 comments to On how legal traditions shape teaching traditions

  • At least such things in some places may be openly discussed. Sadly, the Left across the pond in the US wish only to smother such open comparisons. And pray for mercy for anyone who favorably compares Anglo-Saxon traditions. C’est la vie, I guess.

  • By the way, in Scotland, they also have a ‘Continental’ legal system. They do not have judges. They have ‘intendants’ in Scottish courts.

    I don’t think that’s right. Read this (Link), for info. We do have judges, juries and an adversarial system (my mother was on jury duty only a couple of weeks ago). The major difference between Scots law and English law is that Scots law is more codified and less reliant on precedent.

    It is sometimes said that, like the continental systems, Scots law is derived from Roman law, rather than common law, but, as I understand it, this is usually taken to refer to its codification, rather than whether it’s an adversarial or inquisitorial system.

  • Guy Herbert

    There are quite a lot of variations in the Civil Law tradition, too.

    I don’t know that Scots Law is all that codified, even in an informal sense. If codification were the touchstone in any case, then US Federal and State law would count as Civil Law!

    Nowhere in Britain has an ordered, published, civil or criminal code, or even part of one. The nearest thing we have are so-called codifying and consolidating statutes which take the form of any other legislation and are usually riddled with non-textual amendments within a couple of years. How messy this gets is neatly illustrated by this year’s Statute Law (Repeals) Act, which manages to delete an entire Act of 1997 that is apparently already without consequence, at the same time as getting round to removing refrences to long-abandoned colonies from 19th century legislation still partially in force.

    Though Scotland does have adversarial courts, and a much of UK law applies there as in England without significant variation, it also has in the Procurator Fiscal a judicial official in many ways analogous to a juge d’instruction, and a lot of Civil Law concepts (such as delict) floating about. Pace Brian precedent does have authority in Scotland. But the Scots line of precedent is separate, though informed by and informing the English line.

  • I don’t know that Scots Law is all that codified, even in an informal sense.

    According to this (Link) page:

    Still there are differences between the Scottish and the English legal system. The civil law in Scotland is based on more generalised rights and duties than in England and Scots law argues deductively from principles and still holds the distinction between legal process and substantive (i.e. actual) law.

    I’d usually understood “codified” to be synonymous with “argued deductively from principles”. But the issue isn’t whether Scots law is entirely codified, but how codified it is compared to English law.

  • Guy Herbert

    Andy Wood and I have understandings of the term “codified” so different as to be virtual opposites. In my understanding codification is the explicit reduction of large areas of law to ordered codes, as in the Code Napoleon, or the US Uniform Commercial Code. One can say law is codified in that traditional sense without saying anything of its content or manner of interpretation.

    Such codes in the Civil Law tradition often do contain statements of principle, rather than detailed provisions, because indeed they anticipate they will be used according to the Civil Law method–always expressed as deduction from principle, even where guidance is sought from previous cases. It is certainly a feature of Civil Law systems that they tend to be codified in that sense, and they look to codes and constituting documents as the source of law. But I would say that that is a feature distinct from, though related to, their distinctive legal method. US Law is substantially codified in my sense, yet operates on the Common Law approach; Scots Law is not.

  • Paul Graham does write very interesting essays. In his essay about essays that Brian links to, he also writes this:

    If all you want to do is figure things out, why do you need to write anything, though? Why not just sit and think? Well, there precisely is Montaigne’s great discovery. Expressing ideas helps to form them. Indeed, helps is far too weak a word. Most of what ends up in my essays I only thought of when I sat down to write them. That’s why I write them.

    Which links all the way back to this:
    Blogging as self-education

    Paul Graham adds:

    Just as inviting people over forces you to clean up your apartment, writing something that other people will read forces you to think well. So it does matter to have an audience

    All of which suggests to me that blogging may combine the inquisitorial and adversarial methods of learning quite nicely: the article allows one to gather one’s thoughts; the comments section allows for some arguing…

  • Andy Wood and I have understandings of the term “codified” so different as to be virtual opposites.

    I wouldn’t say opposites, just referring to different things.

    I gleaned my understanding of the term from conversations with friends who were studying law at university. They’d typically say that Scots law is derived from Roman law, and hence is more codified and less reliant on precedent than English law. It’s quite possible that I got the definition confused. Some of the definitions at Dictionary.com seem more consistent with yours, although I think a couple of them could be stretched to be consistent with mine.

  • In many ways the adversarial system anticipated Popper. Although couched in terms of evidence and proof, what actually happens is that P puts forward a case (the conjecture) and D does all he can to attack it (rational criticism). If the case is left standing at the end then P wins. Otherwise he loses. I have seen it many times in practice and it is a remarkably effective way to weed out falsehood. I have also been involved in inquisitorial proceedings. Whilst they have their own virtues – the inquirer is more objective and less wedded to a particular point of view – the rigerous process of critcism that typifies the adversarial process, tends to be missing.

    For this reason, if it the truth (or at least the rejection of falsehood) that you seek, I commend the adversarial process ahead of the inquisitorial.

  • LAURA VASS

    should Scots criminal law be codified?