LANGDELL V. HOLMES: ON LEGAL EDUCATION -AND THE LEGAL PROFESSION-*
Imer B. FLORES**
SUMMARY
I. Introduction: a gap between legal education and the legal profession?. II. Legal education. III. Conclusion: towards an integral legal education.
"It is obvious that no
matter how complete the theory may
be, a middle term is required between
theory and practice, providing a link and a
transition from one to the other".***
I. INTRODUCTION: A GAP BETWEEN LEGAL EDUCATION AND THE LEGAL PROFESSION?
Appraising law integrally implies a constant and permanent cross-examination in tandem of legal education and the legal profession. In fact, as Justice Felix Frankfurter, former student and at that time Professor at Harvard Law School, suggested in a letter dated May 13, 1927: "In the last analysis, the law is what lawyers are. And the law and the lawyers are what the law schools make them".1
However, it is a common place to say that (higher) education is in crisis due to an increasing gap between what theory supplies and what practice demands. It is also said that such crisis reaches all vanguard and rearguard countries, public and private institutions, natural and social sciences alike. Accordingly legal education in México —and elsewhere— appears to be in crisis: law schools and lawyers, as well as other legal practitioners and theoreticians, seem to be divorced or at least look as if they were in the process of getting a divorce.2
To prove the point of how from a calamity and emergency arises opportunity and possibility instead of fatality and necessity, let me call to your attention that nobody could foretell the chain-reaction that Judge Harry T. Edwards set in motion when he expressed, in the early 90’s, his deep concern about "the growing disjunction between legal education and the legal profession", in an article with the same title.3
The piece was published in the Michigan Law Review, in October 1992 (the first number of the academic year), and due to the fact that the answer was "so overwhelming" and the reaction "[so] strong and widespread",4 the Law Review decided to host a Symposium on Legal Education for the issue of August 1993 (the last one of the same volume).5 In this installment, Judge Edwards collaborated with "The Growing Disjunction Between Legal Education and the Legal Profession: A Postscript", where he replied to his respondents’ remarks, which were organized into five categories: (1) law school deans, (2) law school faculty members, (3) students and recent graduates, (4) members of the bar, and (5) judges.6
By that time, the snowball was so big that the synergy had reached all the corners of legal education and the legal profession: from theoreticians to practitioners and from scholars to students, to the extent that more than one seminar was held in the coming months and years. In fact, in a Symposium organized by the Washington Law Review, entitled The 21st Century Lawyer: Is There a Gap To Be Narrowed?, which took place on April 16, 1994 and was published in July,7 although the primary aim was to analyze a Report of the American Bar Association, better known as the MacCrate Report, named after its chair Robert MacCrate,8 Judge Edwards also contributed to the subject-matter "The Gap Between Legal Education and the Needs of the Profession" with "Another «Postscript» to «The Growing Disjunction Between Legal Education and the Legal Profession»".9
In a nutshell, his thesis all the way was:10
I fear that our law schools and law firms are moving in opposite directions. The schools should be training ethical practitioners and producing scholarship that judges, legislators, and practitioners can use. The firms should be ensuring that associates and partners practice law in an ethical manner. But many law schools —especially the so-called "elite" ones— have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and pedagogy. Many law firms have also abandoned their place, by pursuing profit above all else. While the schools are moving toward pure theory, the firms are moving toward pure commerce, and both have deserted the middle ground —ethical practice—. This disjunction calls into question our status as an honorable profession.
This… is my response to… legal academicians who disdain law teaching as an endeavor in pursuit of professional education. My view is that if law schools continue to stray from their principal mission of professional scholarship and training, the disjunction between legal education and the legal profession will grow and society will be the worse for it.
Moreover, he had to dispel in his "A Postscript" some (common) misconceptions by clarifying and explaining:11
First, I am not against theory or theoretical work…;
Second, I am not against interdisciplinary scholarship…;
Third, I am not interested in "trashing" CLS [i. e. Critical Legal Studies]…;
Finally, I do not believe that legal education should be structured to prepare students only for appearing before judges.
On the one hand, it was clear, from the beginning to the end of the main article, that, as he argued: "In the ideal law faculty, there is a healthy balance of theory and doctrine". Additionally, he had claimed "Law students should learn theory, but not at the expense of doctrine. The ideal «doctrinal» class is like the ideal work of «practical» scholarship: it seeks to integrate theory with doctrine, to show how theory resolves normative problems left open by the authoritative legal texts".12 In fact, he had already recommended:13
Law schools should also offer pure theory courses, so as to teach theories that students will later integrate with doctrine. However, pure theory courses should not displace the core doctrinal curriculum. Nor should the "impractical" scholar teach whatever pure theory class he or she finds interesting, regardless of its relevance to practical problems.
On the other hand, it was far from evident that he was neither against interdisciplinary scholarship nor anti CLS per se, but hostile to the advocates of such movements, who fit his characterization —or depiction— of "impractical" scholars, i.e. scholars that disdain the practice of law. In order to make the point of the duality approving-disapproving clear, let me reproduce the following passage:14
Over the past two decades, law and economics, law and literature, law and sociology, and various other "law and" movements have come to the fore in legal education. We have also seen a growth in critical legal studies (CLS), critical race studies, and feminist legal studies movements. In my view, all of these movements, albeit measurably different in content and purpose, have the potential to serve important educational functions and, therefore, should have a permanent home in the law schools. However, because many of the adherents of these movements have a low regard for the practice of law, their emergence in legal education has produced profound and untoward side effects.
It is true that, on one side, he affirmed "Our law reviews are now full of mediocre interdisciplinary articles. Too many law professors are ivory tower dilettantes, pursuing whatever subject piques their interest, whether or not the subject merits scholarship, and whether or not they have the scholarly skills to master it".15 He even suggested "The entire array of graduate schools must not be duplicated, in microcosm, in the law school".16 But, on the other, he accepted that "various nontraditional movements have the potential to be valuable additions to the law school":17
CLS scholars have provided a critical, anti-establishment view that, in the past, was largely absent from the law schools. Law-and-economics scholars have aimed to improve lawyers’ understanding of efficiency… Law-and-literature scholars have helped us read texts more closely and subtly. The same is true of other interdisciplinary approaches, such as feminist legal studies, critical race studies, and moral theory, which usefully inquire whether the existing legal system is fundamentally unfair in its construct.
Nevertheless, he agreed "What troubles me most about some adherents of CLS [and other nontraditional movements] is that their attempts to expose fundamental flaws in our legal system are not accompanied by any comprehensible suggestions for reform".18 Likewise, he asserted the error of structuring legal education on the axis merely of courts-judges-judiciary:19
Most lawyers rarely appear in court, and we should not design the entire law school curriculum as if the opposite were true. Nor do I believe that an emphasis on the practical in legal education should be limited to doctrine. The value of high quality clinical courses is self-evident. Likewise, courses focused on the legislative and executive branches enable students to consider important policy questions, understand problems related to drafting and enacting legislation, and develop the ability to deal with executive enforcement measures and administrative regulations. Further, it would be immensely useful if law schools offered courses designed to train students how to manage legal institutions, since the delivery of quality services often depends upon the quality of the organization in which a lawyer works. In short, I do not endorse the study of doctrine to the exclusion of all else.
To sum up Judge Harry T. Edwards is for constructing a "better bridge between legal education and practice". To cut a long story short, he advises concisely:20
In order to deal with problems that we now face, it seems to me that the entire legal academic community must work collectively to find a middle ground where a greater number of practical scholars flourish alongside their theory-oriented counterparts in an environment of mutual respect; both should contribute to an education for students that better prepares them for practice, and both should share the fundamental belief that scholarship that seeks to inform and guide practitioners, legislators, other policymakers, and judges is a valuable, indeed necessary, component of any law school’s mission. Nor should the academy be the only focus of attention. The members of the practicing bar must —if they wish to remain in a profession— put forth a significantly greater effort toward achieving the ideal of ethical practice, an ideal from which too many firms and individual attorneys appear to have strayed.
II. LEGAL EDUCATION
Albeit our striking differences, the status of the gap between legal education and the legal profession in the two countries is very similar, especially regarding not only the divorce between theory and practice but also the lack of an ethical practice. Nonetheless, for Professor James Boyd White "the relevant line is not between the «theoretical» and «practical»… but between work that manifests interest in, and respect for, what lawyers and judges do, and work that does not". Briefly, he argues:21
The opposition between "theoretical" and "practical" is… misleading. It is often the most theoretical work that will prove of surprising practical value, often the immersion in practical particularities that will stimulate the most valuable thought of a general kind. Much of the life of the law in fact lies in the constant interaction it requires between the particular and the general, between the practical and the theoretical.
He is absolutely right that we must be suspicious of anyone who disregards theory or practice, because as they are linked together the denigration of the one is the derision of the other and vice versa. Instead, we must insist in the mutual interest and respect for what lawyers, judges and other legal practitioners achieve and for what scholars, students and other legal theoreticians accomplish. At the end of the day, it is clear that there is already a bridge connecting the two sides: to the extent that one can be on one side at some position and in the other at another situation, as in the metaphor of a revolving door.
The problem is that this bridge seems to be falling apart, leaving the "impractical" scholar or the "antitheoretical" or "intheoretical" practitioner incommunicado. It is imperative to reconstruct the link between law schools and legal arenas or playing fields. In slightly different terms, re-tying the knot between theory and practice to the extent that the "practical scholar" and the "theoretical practitioner" are going to be reconnected again as unum et idem. In that sense, let me turn now to legal education, where theory and practice really do meet. At any law school: we can find the future lawyer, judge and legal practitioner in any student, and the past —or even the present— lawyer, judge and legal practitioner in any scholar.22
In assessing legal education there are three different but interconnected questions worth to ask: a) What to teach-learn?; b) How to teach-learn?; and c) Why to teach-learn?23 We take for granted that the inquiries where and when to teach-learn are settled, in favor of professional law schools —not technical— and permanent legal education —not temporary— whereas the queries on what, how and why to teach-learn are not set up as they are in constant flux shaping one another. In fact, as Professor White calls to mind, in the Preface, to a book that consists of a series of his essays on law and legal education: "education is the constant modification of expectation by experience".24
1. The case for and against ‘Theoretical Knowledge’
The question of why to teach-learn (law) can be easily converted into the quizzes what for or for which purpose? The obvious answer is to train lawyers, judges and legal practitioners, as well as scholars and legal theoreticians that our modern complex globalized society requires. Notwithstanding, the legal profession, which has been traditionally considered par excellence as a liberal one, is becoming —or at least must become— more democratic and oriented towards the citizenry due to its increasing public interest and social role: pro bono.25
As education implies receiving not only information but also formation, it enables the future lawyers, judges and other legal practitioners and theoreticians to apply their knowledge to solve the problems of their profession and science. However, there are two chief courses: 1) practical, slanting or leaning towards the actualization of the aims of the legal profession and persuasion; and, 2) theoretical, sloping or tilting towards the realization of the ends of legal science and precision.26
For the purposes of this article (which I presume would reach an Anglo-American audience or at least familiar with Harvard Law School), I will allude to Justice Oliver Wendell Holmes Jr. and Dean Christopher Columbus Langdell, as they embody the legal profession and the legal science, correspondingly, and exemplify the theoretical practitioner and the practical scholar, respectively.
Furthermore, there is a strong call on the direction of professional instruction (specialization), but there is an equal need for lawyers, judges, and other legal practitioners and theoreticians with a strong tendency towards general instruction (humanization and illustration).
In Mexico, as any student can be admitted to legal studies as a pre-graduate immediately after high school, I have insisted that the students must have first a more or less comprehensive or encyclopedic view of law —and its relationship to human life in general— in the first three years and then, only then, get a specialization in a given area of the legal profession, if they wish to do so in the last two years or even in a post-graduate level.
In contrast, in the United States of America, where the admission is limited —in recent times— to a post-graduate level, only after college, the students prima facie arrive already with a vision of law and its relationship to no less than two subjects, usually their major and minor fields. In addition, the previous information enables them to engage in a more active-participative discussion rather than being merely passive-receptive awaiting the illumination of their professors.
To put it in Karl N. Llewellyn terms: "Technical skill is not a foundation only. It is the necessary foundation".27 Moreover, as law schools are professional schools and not merely technical ones, they have a strong tendency to focus on theoretical knowledge. As we have already pointed out, they cannot focus exclusively on the scientific or theoretical aims of the science nor on the technical or practical ends of the profession: they must combine, at the same time, practical and theoretical interests, professional and general instructions, technical and scientific goals, among other things.28
After all, Justice Felix Frankfurter, in an address to the students of the Harvard Law School on April 30, 1960, acknowledged the interdependence between theory and practice: "the legal profession… is a profession that is concerned with matters of the mind; the mind, and not the imagination, is the instrument of our activities".29 Although decreasing the role of imagination while increasing the task of mind, he suggested:30
[T]he legal profession… is concerned with the things of the mind, with subjecting questions to the reasoning processes and justification by reason… It is the legal profession beyond any other calling that is concerned with those establishments, those processes, those criteria, those appeals to reason and right, which have had a dominant share in begetting a civilized society.
2. The case for and against ‘Traditional Method’
The traditional method of legal teaching in Mexico —and presumably in most Latin American countries and in some Civil Law countries— has been characterized as: 1) patronizing an informative teaching-learning rather than a formative one; 2) privileging a theoretical teaching-learning rather than one that is both theoretical and practical; and 3) producing a passive-receptive teaching-learning rather than one active-participative. What’s more, as a consequence, this model does not favor the configuration of a criteria nor a critical attitude in the student.
It is based mainly on a system of lectures, which is characterized as the exposition of a theme —or series of themes— by the professor in the classroom and the passive reception of the student. The student duties are limited to reading —or more precisely following— the textbook and taking notes of the ‘luminous’ exposition of the professor, while the latter has the prerogative of answering or not to the doubts of the former. Clearly, our traditional method is very different from the one applied in the United States of America, but is similarly flawed.
Among the criticism of the traditional method in México, we would like to point out that the knowledge seems to belong exclusively to the professor and in consequence the teaching-learning process is a mere monologue and not a true dialogue. In addition, there is a strong myth holding that law schools should limit themselves to teach theory and not practice. The belief is that they are unable and unfit to teach experience, because experience is —and only can be— taught by ‘real’ life. However, as we have argued, it is important to, as Roscoe Pound suggested, teach both "law in books" and "law in action".31
As devil’s advocate let me suggest that in México, despite the shortage of professional legal scholars, specially ‘practical scholars’, law schools are fortunately full of legal practitioners, specifically ‘theoretical practitioners’, that can teach not just law in books, but law in action as well. Notwithstanding it is necessary to adjust the traditional method to modern times. The first thing that comes to mind is to adopt and adapt the case method —to reinforce the nature of lawyers and legal professionals as problem solvers— not as a substitute but as a complement, because it seems to redress the evils that we are fighting against.
We must clarify that the criticism of the traditional method is focused most of the time in the corrupt or degenerated version of it. After all, the traditional method has proven to be —and still is— very successful most of the time, since its appearance during the emergence of Universities in Europe —Bologna (c. 1158), Oxford (1168) and as its "dispersion" Cambridge (1209), Salamanca (1218), Paris (1235)— and in the "New World" —Lima and Mexico (1551)— half century after the arrival of the Spaniards and almost one century before Harvard (1636).
From late Twelfth century to mid- Fifteenth century, due to the fact that books were handwritten, i. e. the Guttenberg’s bible was not published until 1455, the only effective way to teach-learn was orally through the lectures given by the professors. This method was also consonant with Civil Law and Canon Law traditions that take law in the form of codification as definite set of legal rules.
In fact, when the first University opened its doors in what is today Latin America, originally as Real Universidad de México (1551) —subsequently Real y Pontificia Universidad de México (1595) and finally Universidad Nacional Autónoma de México (1929)— it was the school of Canons and Laws which started to operate, specifically with the Lectures on Decretales in June 5, 1553 and on Instituta in July 12 of that same year.
In contrast, in Anglo America, the first law school, i.e. Harvard Law School, was founded in 1817, when the printing was already becoming popular and so the judicial reports were available in a printed form, both of which enabled the appearance of an alternative: the case method. It appeared during the academic year 1870-1, when its founder C. C. Langdell —the recently appointed on January 6, 1870 Dane Professor of Law became on September 27, 1870 the first Dean of the Law Faculty— described that in his course the materials to be used would be "Select Cases on Contracts", from which the publication of the very first casebook resulted: A Selection of Cases on the Law of Contracts.32 According to Dean Erwin N. Griswold, with Langdell’s contribution "A whole new era in legal education was begun".33 Furthermore, he recognized that Langdell’s work and approach had been frequently and widely subjected to criticism:34
But it would be a serious mistake to underrate the importance of what Langdell did, while recognizing that it would be an equally great mistake not to recognize the fact that his method standing alone is simply a method, and can be used badly as well as well. For what Langdell did was to introduce the method of studying law out of the careful presentation and analysis of specific cases. Law was not studied or taught in merely theoretical terms; it was no longer studied or taught in generalizations. True to the genius of the common law, students were filled with sweeping general principles and led to deduce results from them. They were encouraged to examine specific instances in great detail, and then to see whether they could find some rather narrow generalizations which could be developed from the numerous specific cases they studied.
Certainly, the main strength of the case method is that the theoretical knowledge is accompanied by a more pragmatical approach, which reinforces that experience and practice are quintessential in the teaching-learning process.35 It implies a closer interaction between the professor and the students in a dialogue reinforced via Socratic method, but which requires the student to read previously a textbook, usually in the form of casebook. This method is consistent with the Common Law tradition, which is oriented much more to concrete cases and to the practical creation-application of legal rules, whereas in the Civil Law the orientation is towards abstract hypotheses and to the theoretical creation-application of legal rules.
Langdell —the "brilliant neurotic" as Jerome Frank’s described him—36 introduced the case method because he was convinced that an inductive analysis, such as the approach applied in the other departments and schools of Harvard University, was going to be much more fruitful. In doing so, it was imperative for him to study the original and principal sources directly: the cases. Of course this idea was old and already popular in England, where it had been in vogue in the Inns of Courts as it was attributed three centuries earlier to a lawyer, Sir Francis Bacon:37
So if a man’s wit be wandering, let him study the mathematics; for in the demonstrations, if his wit be called away never so little, he must begin again: if his wit be not apt to distinguish or find differences, let him study the schoolmen; for they are cymini sectores: if he be not apt to beat over matters, and to call one thing to prove and illustrate another, let him study the lawyers’ cases: so every defect of the mind may have a special receipt.
Moreover, its reception was not unproblematic; in fact, some faculty members withdrew as a protest against the case method and founded the Law School of Boston University, having on its faculty eminent members of the Boston Bar. For many years to come this law school was regarded as a more practical school for lawyers than Harvard Law School.38 Nevertheless, in the "Preface to the First Edition" of his A Selection of Cases on the Law of Contracts, Langdell, on the one hand, clarified the reasons to prepare the first casebook:39
I entered upon the duties of my present position, a year and a half ago, with a settled conviction that law could only be taught or learned effectively by means of cases in some form…
Now, however, I was called upon to consider directly the subject of teaching, not theoretically, but practically… To accomplish this successfully, it was necessary, first, that the efforts of the pupils should go hand in hand with mine, that is, that they should study with direct reference to my instruction; secondly, that the study thus required of them should be of the kind from which they might reap the greatest and most lasting benefit; thirdly, that the instruction should be of such a character that the pupils might at least derive a greater advantage from attending it than from devoting the same time to private study. How could this threefold object be accomplished? Only one mode occurred to me which seemed to hold out any reasonable prospect of success; and that was, to make a series of cases, carefully selected from the books of reports, the subject alike of study and instruction.
On the other hand, he clarified his notion of law and its relation to the case method:40
Law, considered as a science, consists of certain principles or doctrines. To have such a mastery of these as to be able to apply them with constant facility and certainty to the ever-tangled skein of human affairs, is what constitutes a true lawyer; and hence to acquire that mastery should be the business of every earnest student of law. Each of these doctrines has arrived at its present state by slow degrees; in other words, it is a growth, extending in many cases through centuries. This growth is to be traced in the main through a series of cases; and much the shortest and best, if not the only way of mastering the doctrine effectually is by studying the cases in which it is embodied.
In the celebration of the 250th anniversary of the founding of Harvard College, he expressed what has become familiar to us a Langdell’s "laboratory" theory:41
To accomplish these objects… it was indispensable to establish at least two things: first, that law is a science; secondly, that all the available materials of that science are contained in printed books… We have… constantly inculcated the idea that the library is the proper workshop of professors and students alike; that is to us all that the laboratories of the university are to the chemists and physicists, all that the museum of natural history is to the zoologists, all that the botanical garden is to the botanists.
In sum, the move for the case method implied replacing the two edges of the scissor: 1) the Textbook with the Casebook; and 2) the Lecture with the Socratic method. Clearly, in a country belonging to the Common Law tradition, the original and principal sources were the cases as judicial made-law. Likewise, with this rationale, if Langdell had been natural from a country blended in the Civil Law one, his primary sources should have been probably the codes as legislative enacted-law.
Curiously, for most of us —from a civil law tradition— this model seems much more realist or even realistic. However, the case method, as any other teaching method, is contingent and, as such, is independent from the conception of law in which it originates. In that sense, the case method can be applied in a formalistic or realistic fashion. In fact, the method is certainly inductive, but is not completely different from the deductive: the one and the other are both formal and logical.
It is well known that Anti-formalism, in general, and American Legal Realism, in particular, benefited from Oliver Wendell Holmes Jr. phrase: "The life of the law has not been logic: it has been experience".42 However, not everybody knows that its origin is prior to the publication of The Common Law in 1881. As it appeared for the first time, in January 1880, in a Book Notice to the Second Edition of A Selection of Cases of the Law of Contracts with a Summary of the Topics covered by the Cases by C.C. Langdell:43
Mr. Langdell’s ideal in the law, the end of all his striving, is the elegantia juris, or logical integrity of the system as a system. He is perhaps the greatest living theologian. But as a theologian he is less concerned with his postulates than to show that the conclusions from them hang together... so entirely is he interested in the formal connection of things, or logic, as distinguished from the feelings which make the content of logic, and which actually shaped the substance of the law. The life of the law has not been logic: it has been experience. The seed of every new growth within its sphere has been felt necessity. The form of continuity has been kept up by reasonings purporting to reduce every thing to a logical sequence; but that form is nothing but the evening dress which the new-comer puts on to make itself presentable according to conventional requirements. The important phenomenon is the man underneath it, not the coat; the justice and reasonableness of a decision, not its consistency with previously held views.
Evidently, Holmes’ critique focuses on the excessive Legal Formalism of Langdell, as we are going to see in the next section,44 but it reaches the case method as well. Nevertheless, in a first Book Notice to the First Edition of the first part of A Selection of Cases of the Law of Contracts, he agreed that the book was "instructive and interesting" and that "Tracing the growth of a doctrine in this way not only fixes it in the mind, but shows its meaning, extent, and limits as nothing else can." And so in the final paragraph even recommended: "At all events we advise every student of the law to buy and study the book".45
In a second Book Notice to the second part, he confirmed, after further reflection and examination, his estimation and very high opinion of the selection, yet he made his disagreement clear: "We do not agree with him, however, in his seemingly exclusive belief in the study of cases. We should not shut our eyes to a rapid and continuous view of the principles deduced from them". And thus in his concluding remark warned:46
Moreover, to put a beginner upon the cases without aid or introduction, seems to unnecessarily increase difficulties which he is sure to find great enough, however assisted. We think he would find the present work a pretty tough pièce de résistance without a text-book or the assistance of an instructor. The students of the Harvard Law School are to be congratulated that they have the aid of Mr. Langdell’s learning and remarkable powers in their task.
For Holmes, the case method can result excessively formalist and by no means can be considered the one and only method of teaching-learning. In fact, the lecture is coherent with the Civil Law and the case method is consistent with the Common Law, but nothing precludes the quest for a balance between them and other methods, such as in England, where the lecture is still used along to the case method and the tutorials.47
3. The case for and against ‘Legal Formalism & Positivism’
Regarding the query what to teach-learn? We must teach-learn not only the law that ‘is’ but also the law that ‘ought to be’. In that sense it is necessary not to discard any possibility, i. e. the law that ‘might be’. In other words, it is neither possible nor desirable to reduce legal education to the teaching-learning of formally valid positive legal rules according to ‘Legal Formalism & Positivism’ alone. On the contrary, we must teach-learn law in its widest scope and the different alternative and nontraditional conceptions —and constructions— of law.48
The main objection is aimed against the excessive trust given to deductive-inductive and formal logic by focusing in the apparent mechanic application and neutrality of the legal syllogism. In the United States of America it was Oliver Wendell Holmes Jr. the first to open fire against Legal Formalism and his target, as we already saw, was Dean C.C. Langdell.
Even so, before proceeding, at this point I would like to quote a reference of Holmes made by H. L. A. Hart in his famous essay "American Jurisprudence through English Eyes: The Nightmare and the Noble Dream",49 regarding the relationship of Holmes, to whom he had a great esteem, and the ‘nightmare’, to which he obviously not:50
Holmes certainly never went to these extremes [represented by Llewellyn and Frank]. Though he proclaimed that judges do and must legislate at certain points, he conceded that a vast area of statutory law and many firmly established doctrines of the common law… were sufficiently determinate to make it absurd to represent the judge as primarily a law-maker. So for Holmes the judge’s law making function was ‘interstitial’. Holmes’s theory was not a philosophy of ‘full steam ahead and damn the syllogisms’.
He even said:51
Perhaps the most misused quotation from any American jurist is Holmes’s observation of 1884 ‘[t]he life of the law has not been logic: it has been experience’. This in its context was a protest against the rationalist superstition (as Holmes thought it) that the historical development of the law by the courts could be explained as the unfolding of the consequences logically contained in the law in its earlier phases. Judicial change and development of the law were, Holmes insisted, the expression of judges’ ‘instinctive preferences and inarticulate convictions’ in response, as he said, to the ‘felt necessities’ of his time [sic].
Although Hart tries to minimize Holmes’ frontal attack against ‘logic’, or at least to the ‘excessive use and extreme confidence in logic’, everybody knows that for any Anti-formalist or Anti-positivist, including the American Legal Realists, Holmes’ multicited quote "The life of the law has not been logic: it has been experience" is more than a phrase it has become an anthem.
Certainly Holmes’ critique is directed not only to Langdell’s formalism but also to the ‘case method’, as we have already seen.52 At this point it is imperative to tinge the phrase to modulate its force. My hunch is that it is really a frontal attack against logic, but in no way it is intended to abolish its use. Let me call to your attention that in the preceding lines of the The Common Law Holmes explains: "The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all".53 And, in the following ones, added:54
The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.
In fact, in his seminal "The Path of Law" of 1897, Holmes denounced: "The fallacy... that the only force at work in the development of the law is logic".55 Hence, even though he recognizes an important place and role for logic, cynically he argues that it is not everything:56
This mode of thinking is entirely natural. The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form.
Similarly, in his address "Law in Science and Science in Law", Justice Holmes stated:57
I sometimes tell students that the law schools pursue an inspirational combined with a logical method, that is, the postulates are taken for granted upon authority without inquiry into their worth, and then logic is used as the only tool to develop the results. It is a necessary method for the purpose of teaching dogma. But inasmuch as the real justification of a rule of law, if there be one, is that it helps to bring about a social end which we desire, it is no less necessary that those who make and develop the law should have those ends articulately in their minds.
Indeed, as Julius Cohen suggests, Holmes’ critical assessment of the imbalance between "logic" and "experience" does not "support the view that logic has no place in the development of the law… The error would, accordingly, be in viewing law solely as an exercise in deductive logic… [In fact,] [m]uch of Holmes’s notable contributions to legal thought have been a function of keen logical analysis of legal doctrines".58
Arguably, Holmes intended quite the opposite: to complement logic and experience. This idea of complementariness is explicit in Roscoe Pound’s Law Finding through Experience and Reason, where in his opening remark he recalls that three centuries before Sir Edward Coke, Chief Justice of the Court of Common Pleas, first, and of the King’s Bench, later, and archenemy of Sir Francis Bacon, argued that "Reason is the life of the law, nay the common law itself is nothing else but reason" and concluded that "law is an artificial reason": "an artificial perfection of reason, gotten by long study, observation, and experience, and not of everyone’s natural reason; for nemo nascitur artifex".59 Actually in the Centennial History of the Harvard Law School, in a part probably written by Dean Pound, it is said:60
It has, however, become evident in recent years… that the scope of legal study must extend beyond printed books, certainly beyond law books. Since law is not a water-tight compartment of knowledge but a system of rules for the regulation of human life, the truth of those rules must be tested by many facts outside the past proceedings of courts and legislatures.
III. CONCLUSION: TOWARDS AN INTEGRAL LEGAL EDUCATION
In this final section, to reinforce our main argument that it is possible to integrate 1) the theoretical knowledge and the practical technique, 2) the traditional method —whether it is the lecture or the case method— and other non-traditional methodologies, and 3) the legal formalism & positivism and other alternative approaches, in an integral model for legal education, I will like to refer to Dean Erwin N. Griswold’s illustrious address on the ocassion of the Sesquicentennial Celebration of the Harvard Law School in Cambridge, Massachusetts, on September 23, 1967, entitled: "Intellect and Spirit".61
On this occasion, and shortly before his departure in order to become Solicitor General of the United States, Dean Griswold examined the past and present of the Harvard Law School and urged a more lively involvement of the law school with the community. Certainly, according to President Nathan M. Pusey "the imprint of his influence has been of the order of Langdell and Pound." In fact "While others built the law school, Erwin Griswold presided over its rebuilding".62
As a matter of fact, Dean Griswold’s analysis of the advantages and disadvantages of the case method is well known:63
The case method is a powerful device for inculcating a certain type of logical reason. Experience with this type of reasoning is an essential part of legal education, for it is widely used by judges, lawyers, and laymen in dealing with legal problems. Thus, in this part of our work, the case method has great utility, particularly in exposing the shallow or inadequately supported reasoning to which many people are prone. In dealing with concrete situations, whether based on cases or on problems, it avoids the dangers of too broad generalizations and teaches the student to be extremely careful of his own thinking and skeptical of the easy conclusions of others.
But the case method alone does little more than this. It is only a tool. It is not an end in itself, and it is fully as dangerous as it is useful. A knife may be an instrument of mercy in the hands of a surgeon and a lethal weapon when used by another. So too, traditional methods of law school instruction may be dangerous and destructive in their results when used without adequate understanding; and this may be no less disastrous because it was wholly unintended.
Therefore, as I have suggested the idea is not to replace, but to reintegrate, theoretical knowledge with practical technique, traditional method —whether it is the lecture or case method— with other non-traditional methodologies, and legal formalism & positivism with other alternative approaches, in an integral model for legal education. In that sense, Griswold advised:64
I do not reject the case method. I only argue that we should be more careful in its use. I would urge that it is a dangerous instrumentality and that it has, over the past century, done appreciable harm as well as good. We should more carefully evaluate its tendencies, make our teachers less uncritical in their pursuit of a highly logical type of instruction, and consciously seek out ways to bring out in our teaching the other factors and approaches and objectives which are of great and often crucial importance in the effective functioning of a lawyer.
He even recognized that "Unless we keep these other objectives in mind and work hard to bring them into our teaching, we may do more harm than good, as some of our predecessors unwittingly did, and as we, equally unwitting, though perhaps more blameworthy, may be doing now". In short "The very essence of my submission is that in exalting purely logical reasoning, sometimes almost of the chess or bridge game type, we are not giving sufficient weight to other elements in the situation which are equally relevant in any truly intellectual evaluation".65 Dean Griswold clarified "the thrust of my point is not anti-intellectual". To all intents and purposes, as he said: "Intellectual qualities are likewise highly relevant. But they alone are not enough".66 And, finally, concluded:67
[I]t is important that we make changes which will give greater recognition to the role of what I have called the spirit in the training of our law students… Without a full recognition of the role of the spirit in helping us to determine what we do and how we do it, we may fail in our task, perhaps ever knowing why.
Ultimately, in order to fill the gap between legal education and the legal profession it is necessary to reconstruct the bridge communicating the practical scholar and the theoretical practitioner by integrating theoretical knowledge with practical technique, traditional method —whether it is the lecture or the case method— with other non-traditional methodologies, and legal formalism & positivism with other alternative approaches, in an integral model for legal education: one conjugating ‘intellect’ and ‘spirit’ or in slightly different terms ‘reason’ and ‘passion’.
Notes
* Published originally in De Legibus. Review of The Harvard Law School Association of Mexico, Year III, No. 3, 2004, pp. 13-42, republished electronically with kind permission from the Harvard Law School Association of Mexico, A. C.
** The author is grateful to Ariadna Valdés for helpful research assistance and to María Sol Martín for helpful comments on the content of the article. In addition, the author is thankful to his friends and professors both at HLS and at HLSA of México, to whom he dedicates the article, specially Duncan Kennedy, Richard Parker, Lewis Sargentich and Roberto Mangabeira Unger, as well as Diego E. López Medina.
*** Immanuel Kant, On the Common Saying: ‘This May be True in Theory, but it does not Apply in Practice’, 1793.
1 Letter from Felix Frankfurter, Professor, Harvard Law School, to Mr. Rosenwald (May 13, 1927), quoted in Harry T. Edwards, "The Growing Disjunction Between Legal Education and the Legal Profession", 91 Michigan Law Review (1992), 34, at 34 (Hereinafter: "The Growing Disjunction…").
2 I mean by "crisis" not only calamity and emergency but also opportunity and possibility. In doing so, I rule out any sense of crisis being associated to fatality and necessity.
3 Edwards, Harry T., "The Growing Disjunction…", supra note 1, at 34.
4 Letter from Gregory P. Margarian, Editor-in-Chief, Michigan Law Review, to Harry T. Edwards, Judge, U.S. Court of Appeals for the D.C. Circuit (January 13, 1993) quoted in Harry T. Edwards, "The Growing Disjunction Between Legal Education and the Legal Profession: A Postscript", 91 Michigan Law Review (1993), 2191, at 2193 (Hereinafter: "A Postscript").
5 "Symposium: Legal Education", 91 Michigan Law Review (1993), 1921.
6 Edwards, Harry T., "A Postscript", supra note 4, at 2197.
7 "Symposium: The 21st Century Lawyer: Is There a Gap To Be Narrowed?", 69 Washington Law Review (1994), 505.
8 American Bar Association, Legal Education and Professional Development —An Educational Continuum—, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap 1992.
9 Harry T. Edwards, "Another «Postscript» to «The Growing Disjunction Between Legal Education and the Legal Profession»", 69 Washington Law Review (1994), 561 (Hereinafter: "Another Postscript".)
It is worth mentioning that Edwards himself makes a couple of references to the Report, vid. footnote 6 and accompanying text of "A Postscript", at 2192: "[The report is] contending that there is less a «gap» between the academy and the profession than a continuum of development in legal skills and values that includes law school and practice; nevertheless, suggesting, numerous reforms in legal education" and footnotes 21 & 22 and accompanying text of "Another Postscript", at 570.
10 Edwards, Harry T., "The Growing Disjunction…", supra note 1, at 34 and 41 (emphasis is original).
11 Edwards, Harry T., "A Postscript", supra note 4, at 2195-7 (emphasis is original).
12 Edwards, Harry T., "The Growing Disjunction…", supra note 1, at 36 and 65. Vid. also at 35: "I should make clear at the outset that I do not doubt for a moment the importance of theory in legal scholarship"; at 39: "I emphasize, again, that a great professional school never can be antitheoretical"; at 65: "Finally, I repeat that, in advancing my claim for «doctrinal education», I do not propose that law schools eliminate theory from their curricula".
13 Ibidem, at 65. Cfr. ibidem, at 35: The "impractical" scholar is "disdainful of the practice of law". Meanwhile, the "practical" scholar "always integrates theory with doctrine". By analogy, we must also be distrustful of the "antitheoretical" or "intheoretical" practitioner who is "disdainful of the theory of law" to the extent that the "theoretical" practitioner "always integrates theory with doctrine".
14 Ibidem, at 34-35.
15 Ibidem, at 36 (emphasis is original).
16 Ibidem, at 56.
17 Ibidem, at 49-50. Cfr. Kennedy, Duncan, Legal Education and the Reproduction of Hierarchy. A Polemic Against the System, Cambridge, Massachusetts, Afar, 1983; and Mangabeira Unger, Roberto, The Critical Studies Movement, Cambridge, Massachusetts, Harvard University Press, 1986.
18 Edwards, Harry T., "A Postscript", supra note 4, at 2196.
19 Ibidem, at 2197.
20 Edwards, Harry T., "Another Postscript", supra note 9, at 571.
21 Boyd White, James, "Law Teachers’ Writing", 91 Michigan Law Review (1993), 1970, at 1970.
22 Idem: "[T]he main mission of law school, where practice and teaching really do meet: the education of future lawyers".
23 Cfr. Böhmer, Martin F., "Introducción", in Böhmer, Martin F. (ed.), La enseñanza del derecho y el ejercicio de la abogacía, Barcelona, Gedisa, 1999, at 14-15.
24 Boyd White, James, "Preface", From Expectation to Experience. Essays on Law and Legal Education, Ann Arbor, The University of Michigan Press, 1999, at ix.
25 Cfr. Lasswell, Harold and McDougal, Myres, "Legal Education and Public Policy: Professional Training in the Public Interest", 52 Yale Law Journal (1943), 203, and William Ayers, Jean Ann Hunt and Therese Quinn (eds.), Teaching for Social Justice. A Democracy and Education Reader, New York, The New Press and Teachers College Press, 1998.
26 We have elsewhere identified the former with Protagoras —or even Cicero— and the latter with Socrates. Vid. Flores, Imer B., "Protágoras vis-à-vis Sócrates: Los métodos de enseñanza-aprendizaje del derecho", Memoria del Congreso Internacional sobre Sistemas y Culturas Jurídicas Comparados, México, Instituto de Investigaciones Jurídicas, Universidad Nacional Autónoma de México, 2004.
27 Llewellyn, Karl N., Jurisprudence: Realism in Theory and Practice, Chicago, The University of Chicago Press, 1962, at 367.
28 Cfr. Eisenmann, Charles, The University Teaching of Social Sciences: Law, Paris, UNESCO, 1973, at 17-55 [Hereinafter: Law].
29 Frankfurter, Felix, "The Profession of the Law", in Kurland, Philip B. (ed.), Of Law and Life & Other Things that Matter. Papers and Addresses of Felix Frankfurter (1956-1963), Cambridge, Massachusetts, Harvard University Press, 1965, at 148.
30 Ibidem, at 149.
31 Vid. Roscoe Pound, "Law in Books and Law in Action", 44 American Law Review (1910), 12.
32 Langdell, C. C., A Selection of Cases on the Law of Contracts, Part I, Boston: Little, Brown and Co., 1870; and A Selection of Cases on the Law of Contracts, Part II, Boston: Little, Brown and Co., 1871.
33 Griswold, Erwin N., "Intellect and Spirit", 81 Harvard Law Review (1967), 292, at 293. Id.: "There is no doubt that the influence of Langdell was great in many ways and that it is still felt. He transformed legal education, not only here, but generally throughout the country."
34 Ibidem, at 294. Cfr. Frank, Jerome, "Why Not a Clinical Lawyer-School?", 81 University of Pennsylvania Law Review (1933), 907, and Courts on Trial. Myth and Reality in American Justice, New Jersey, Princeton University Press, 1950, pp. 225-233.
35 Cfr. Kronman, Anthony, "Living in the Law", 54 University of Chicago Law Review (1987), 835 [there is version in Spanish: "Vivir en el derecho", trans. Christian Gruemberg, in Böhmer, Martín F. (comp.), La enseñanza del derecho..., supra note 23, at 213].
36 Frank, Jerome, "A Plea for Lawyer-Schools", 56 Yale Law Journal (1947), 1303, at 1303 [there is version in Spanish: "Una defensa de las escuelas de abogados", trans. Martín F. Böhmer, in Böhmer, Martín F. (comp.), La enseñanza del derecho..., supra note 23, at 35].
37 Bacon, Francis, "Of Studies", in Essays, London and Vermont, Everyman, 1994, at 130. (Emphasis is original.) Ibidem, at 129: "Reading maketh a full man; conference a ready man; and writing an exact man. And therefore, if a man write little, he had need have a great memory; if he confer little, he had need have a present wit; and if he read little, he had need have much cunning, to seem to know that he doth not". Cfr. also Morris Raphael Cohen, American Thought. A Critical Sketch, New York, Collier Books, 1962, at 189; and Friedman, Lawrence M., A History of American Law, New York, Touchstone Books, 1985, at 612-613.
38 Vid. Griswold, Erwin N., "Intellect and Spirit", supra note 33, at 294-5.
39 Langdell, C. C., A Selection of Cases of the Law of Contracts with a Summary of the Topics covered by the Cases, 2nd edition, Boston, Little, Brown and Co., 1879, at vii (A Summary of the Law of Contracts, Boston, Little, Brown and Co., 1880).
40 Ibidem, at viii.
41 Langdell, C. C., Record of the Commemoration of the Two Hundred and Fiftieth Anniversary of the Founding of Harvard College (1887), at 85-87, quoted in Erwin N. Griswold, "Intellect and Spirit", supra note 33, at 294.
42 Oliver Wendell Holmes Jr., The Common Law, New York, Dover, 1991, at 1 (originally published in 1881).
43 Oliver Wendell Holmes Jr., "Book Notices", 14 American Law Review (January, 1880), 233, at 234 (emphasis added).
44 Infra II, 3.
45 Oliver Wendell Holmes Jr., "Book Notices", 5 American Law Review (April, 1871), 539, at 540.
46 Oliver Wendell Holmes Jr., "Book Notices", 6 American Law Review (January, 1872), 353, at 354.
47 Cfr. Hall, Jerome, "Teaching Law by Case Method and Lecture" (paper presented at the annual meeting of the Society of Public Teachers of Law in Edinburgh, July 15, 1955). Cfr. also Charles Eisenmann, Law, supra note 28, at 144-152.
48 Flores, Imer B., "La concepción del derecho en las corrientes de la filosofía jurídica", 90 Boletín Mexicano de Derecho Comparado (1997), 1001; and "El porvenir de la ciencia jurídica. Reflexión sobre la ciencia y el derecho", in La ciencia del derecho durante el siglo XX, México, Instituto de Investigaciones Jurídicas, Universidad Nacional Autónoma de México, 1998, at 999.
49 Hart, H. L. A., "American Jurisprudence through English Eyes: the Nightmare and the Noble Dream", in Essays in Jurisprudence and Philosophy, Oxford, Oxford University Press, 1983, at 123-44 [there is version in Spanish: "Una mirada inglesa a la teoría del derecho norteamericana: la pesadilla y el noble sueño", trans. José Juan Moreso and Pablo Eugenio Navarro, in Pompeu Casanovas y José Juan Moreso (eds.), El ámbito de lo jurídico. Lecturas de pensamiento jurídico contemporáneo, Barcelona, Crítica, 1994, at 327-50].
50 Ibidem, at 128 [ibidem, at 332].
51 Ibidem, at 129-30 [ibidem, at 333].
52 Supra II, 2.
53 Oliver Wendell Holmes Jr., The Common Law, supra note 42, at 3.
54 Idem.
55 Oliver Wendell Holmes Jr., "The Path of Law", 110 Harvard Law Review (March, 1997), 991, at 997 (published originally in March, 1897).
56 Ibidem, at 998.
57 Oliver Wendell Holmes Jr., "Law in Science and Science in Law", in Collected Legal Papers, London, Constable and Co., 1920, at 238.
58 Cohen, Julius, "Justice Brennan’s «Passion»", 10 Cardozo Law Review (1988), 193, at 193.
59 Coke, Edward, Seventh Report, quoted in Roscoe Pound, Law Finding through Experience and Reason, Atlanta, University of Georgia Press, 1960, passim. I am indebted to Lewis Sargentich for a fruitful discussion on this theme.
60 Roscoe Pound quoted in Griswold, Erwin N., "Intellect and Spirit", supra note 33, 295.
61 Griswold, Erwin N., "Intellect and Spirit", supra note 33, 292.
62 Pusey, Nathan M., "A Great Dean", 81 Harvard Law Review (1967) 289, at 289-90.
63 Griswold, Erwin N., "Intellect and Spirit", supra note 33, at 298-9.
64 Ibidem, at 299-300.
65 Ibidem, at 300.
66 Ibidem, at 302 and 307.
67 Ibidem, at 304 and 307. The first time that Dean Griswold’s dicta came to my attention was on the course description of Richard Parker’s Seminar: Law and Literature: Spiritual Hygiene for Lawyers, I also owe him for a rich discussion on this topic.
