"A(nother) Critique of Pure Reason": Toward Civic Virtue in Legal Education
Summary (4 min read)
- In Patricia Williams' book, The Alchemy of Race and Rights: Diary of a Law Professor, Williams mentions "a constitutional-law exam in which students are given the lengthy text of a hate-filed polemic entitled 'How To Be a Jew-Nigger' and then told to use the First Amendment to defend it.", Williams makes the point that students taking such an exam, in this case especially Jewish and African-American students, are required to write against their own personal knowledge and experience.
- Seeking to remove legal reasoning both from "the political" and from "the personal," law professors traditionally shun openlyexpressed emotions in the classroom.
- The authors disagree with both positions, and this essay seeks to explain why.
- When strong emotions are considered inappropriate, participants in an intellectual exchange may miss the places where they need to think more deeply.
- In their view, acknowledging the role of emotion in intellectual endeavors, including the classroom experience, can enrich debate.
II. THE DOMINANT IDEOLOGY OF LEGAL EDUCATION
- In their experience, most law teachers share an ideology about the appropriate roles of rationality and feeling in the classroom.
- This ideology can be reduced to two propositions: first, that rationality and feeling are opposites, and second, that rationality is appropriate in legal reasoning whereas feeling is not.
- In accordance with this ideology, law teachers tend to treat the development of logical thinking as the central, even exclusive, focus of legal training, and they seek to suppress emotional expression in the classroom.
- This ideology harms both the educational process and the understanding of legal institutions and legal thought.
- The authors first offer some speculations about the sources of and reasons for the dominant ideology.
A. The Sources and Function of the Dominant Ideology
- The sources of the dominant ideology are not hard to find.
- The only variation was that occasionally, for several minutes at a time, he would close his eyes entirely while he continued talking.
- The dichotomies of reason and emotion, subjective and objective, have powerful practical consequences in the academy.
- Even where lawyers are advocates or advisors rather than adjudicators, the profession emphasizes "thinking like a lawyer.".
- 15 More significantly, law and legal institutions seem deeply and inevitably infused with emotion.
B. The Dynamics of the Dominant Ideology
- In their view, the dominant ideology about the relationship of rationality and emotion contributes directly both to the alienation and malaise of students and to the dissatisfaction of teachers with the process of legal education.
- The polarization of reason and emotion prevents either from enriching the other, resulting in emotion that is undisciplined, unexamined, and unowned, as well as thinking that is ard and shallow.
- It was not only the authors students who were absent from the class as individuals.
- The authors talked about incentives and disincentives, George Gilder's social theories and Frank Michelman's view that welfare should be considered a right.
- In legal education, one result of the dominant ideology is a classroom atmosphere that gradually alienates both students and teachers.
- After the closing class in my first year of teaching, I returned to my office fresh from the rousing ovation my students had bestowed on me, carrying a bouquet of flowers and some joke gifts they had given to me.
- Some may avoid teaching certain subjects, like rape, or even certain courses, like civil rights, in order to avoid provoking student emotion.
- The teacher excitedly looked forward to a stimulating intellectual exchange.
- One white woman described a day in her civil rights course when she asked her two black students, the only students of color in the class, to talk about what it felt like to be discriminated against.
- 2 4 The dynamics of the dominant ideology thus contribute to ever shallower visions of rationality and to ever more unproductive expressions of emotion.
C. The Politics of the Dominant Ideology
- The ideology which denigrates emotion and elevates rationality in the law school classroom also has systematic political consequences that harm students and truncate intellectual inquiry.
- Existing legal rules and arrangements are not "neutral"; rather, every legal structure or decision creates "winners" and "losers.".
- The student ends up further disempowered and the teacher further empowered by the use of the dominant ideology to deflect an intellectual challenge.
- Thus, the part of the dominant ideology that elevates rationality over emotion excludes from the conversation (in the vernacular, "silences") individuals who are used to infusing thought with feeling.
- The more radical an idea, the more disquieting it is to those comfortable with the status quo.
III. TOWARD A NEW IDEOLOGY OF REASON AND EMOTION
- Neither banning emotion, intuition, and gut instinct in a search for "rigor" nor encouraging the expression of raw emotion in a search for mean-27.
- Rather than casting reason and emotion as opposites, the authors should think of them as shading into one another.
- Nussbaum repudiates the view that emotions are "blind animal reactions... in their nature unmixed with thought, undiscriminating and impervious to reasoning.".
- For these reasons, objectivity and neutrality are necessary elements of justice.
- 40 (1990) But idealized justice also embodies wisdom and compassion.
28. MARTHA NUSSBAUM, LOVE'S KNOWLEDGE: ESSAYS ON PHILOSOPHY AND LITERATURE
- As a philosophy of legal education, then, their view of reason and emotion as complementary elements of thought requires us not just to allow emotions into the classroom, but to learn how to examine them, learn from them, and incorporate them into rational argument.
- The authors offer some stories from their own teaching experiences to illustrate their successes and failures in trying to follow this new ideology.
A. Marge's Stories: Examining Emotion
- "If you can't understand business language, you shouldn't be a businessman.".
- "I learned in college that it's better to keep your mouth shut on these issues.".
- And if the life experiences, agendas, and beliefs of people in the classroom vary widely, emotional friction will be enmeshed in any genuinely meaningful exchange.
- Controversial issues in contracts are less visible than those in rape doctrine or civil rights law, but, as in all legal material, vital issues are embedded within its rules and principles.
- Engagement with the entire range of judgment, reason, feeling, and intuition about them can yield payoffs that are not simply interpersonal, pluralist, or democratic, but also hard-headedly substantive.
33. Ian Ayres
- After about fifteen minutes, the authors breathe a partial sigh of relief.
- More wary than before my naming error, but much better than before the authors aired it out, they continue their discussion of the law.
- Falling through emotional thin ice is terribly scary.
- But when the authors can examine what has been said and done in the classroom community, calling upon the eyes and hearts of all the various participants, they can go forwardalmost regardless of what has transpired.
B. Angela's Stories: Risk-Taking and the Search for Substance
- But the longer I thought about it, the more the phrase struck me as an interesting insight.
- Poetic language is dense, heavy with meaning; it tries to reduce some of the "noise" and redundancies that everyday language carries.
- Legal language seeks clarity and univocality, not the shifting multiplicity of poetry.
- If nowhere else, an awareness of ambiguity's potential is useful for taking law school exams, which require students to explore as many twists and turns as possible.
- As a teacher, I habitually repeat student comments in other words, in part to make the students feel heard but in part also to bring out the ambiguity in their statements.
STANFORD LAW REVIEWV
- Dents praise me for restating their comments to make them sound "smarter than they are.".
- As prosecutors, students find themselves asking for harsh punishment, not out of a simple desire to beat up defendants but out of anger and sorrow for the victim.
- But all I can think about when I walk into the classroom are those four guys!".
- Too afraid to precipitate an explosion at a strange school, I acted as if nothing was wrong until the last day of class, when I made a few wry remarks about Stanford students' reputation for being hostile to visitors.
- 45 Similarly, the ideal of acknowledging and examining emotions in the law school classroom may be hard to achieve until a certain level of safety and trust has already been established; and racial and sexual politics deeply threaten both individual and group safety.
- When the authors decided to use Pat Williams' story about the First Amendment exam as an opening, 46 they spent some time discussing whether they could see ourselves assigning such an exam.
- Even that adaptation is imperfect in that it is unable to adjust for the fact that some groups have been subjugated while others have not.
- First, at this point in the essay, the reader may object that, given the politics of the law school classroom, their suggested ideal of acknowledging and encouraging the expression of emotion and "whole selves" in legal education is a dangerous one.
- Instead of attempting to suppress emotions, convictions that are "too political," and the teacher's own views, the teacher should make clear both as an announced norm and as a practice that neither the degree to which a conviction is emotion-laden nor the identity of its holder is an index of its correctness.
- Emotions, and opinions fusing emotions and reason, may change from day to day; and people have the capacity to persuade one another.
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Cites background from ""A(nother) Critique of Pure Reason"..."
...For instance, rationality is prized at the expense of recognizing—or being able to deal with—emotion (Harris and Shultz 1993)....
Cites background from ""A(nother) Critique of Pure Reason"..."
...The study of emotion cultures also encompasses the culture of particular legal institutions, such as the bench (Maroney 2011a), the courtroom (Haney 2005), the law school classroom (Harris & Shultz 1993), and the law firm (Levit & Linder 2010).5 3....
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