A stern, almost cruel-looking lecturer stands at the front of a law class and picks on a student at random.
“Mr. Hart,” the lecturer says, “What are the facts of the case?”[1]
The student stands.
“I haven’t read the case,” the student says quietly.[2]
The lecturer grumbles in frustration, mentioning that the assignment has been stuck on a wall in Langdell Hall for over a week.
“I will give you the facts of the case myself, Mr. Hart,” the lecturer says, to the student’s visible relief.[3]
—-
The above scene from the 1973 film The Paper Chase is a classic example of what is now called the Socratic Method, a system of asking questions to a student about a particular case of law. Invented by the law professor Christopher Langdell in 1870, the Socratic Method bears little resemblance to the actual ideas of Socratic wisdom in Meaieutics and the Apology. In this paper I intend to challenge Langdell’s interpretation of Socrates, and ask whether his method reinforces authoritative structures of law as opposed to granting students the ability to flex their critical thinking skills.
In a true Socratic law school, I suggest, students would be instructed to ask questions to those in authority instead of answering them. Nothing and no one would be beyond a student’s questioning, especially by virtue of claims to authority or expertise alone. Students would be empowered to question the wisdom of lecturers, judges, politicians and the law itself, unpacking the hidden values, ideological motivations and the philosophical foundations of legal principles. By questioning the origins of law, students would learn to refine their critical thinking and analytical skills in a manner that Langdell himself intended to teach, but which he never truly managed to achieve.
Langdell’s Socratic Method:
As Dean of Harvard Law from 1870 to 1895, Professor Christopher Langdell systematically laid out the foundation of modern legal education.[4] His two primary inventions were the case method of instruction and the Socratic method. Langdell taught on the basis of “a settled conviction that law could only be taught or learned effectively by means of cases”.[5] He taught these cases by asking students a series of questions about the “principles and doctrines” contained therein.[6] Students were expected to understand the facts of a case, the legal principles of a case and understand how those legal principles could be applied in a new set of factual circumstances.[7] Although some law schools have recently adopted a less interrogative approach, the case method and to a lesser extent the Socratic method remain a benchmark of modern legal education.[8]
Langdell’s Socratic method was inspired from a similar method of instruction outlined by Socrates in Maieutics.[9] The ancient philosopher outlines a method of interrogating young Greek men by asking them a series of questions to draw out any fallacious reasoning in their logic.[10] Socrates boasted of his “ability to apply every conceivable test to see whether [the] young man’s mental offspring is illusory and false”.[11] This bears some resemblance to Langdell’s technique. By forcing students to justify any illusory or false understandings of case law, Langdell was applying his own version of Socrates’ technique.
Under his Socratic method, Langdell encouraged students to come to a different opinion on a ratio decedendi of a case by questioning judicial reasoning. But his method lacked any sustained debate on the origins of those legal decisions or the method by which they were reached. Where a judge provides an opinion, it is not the student’s place to disagree with the judge on first principles or philosophical foundations. Indeed, philosophy is not a part of the method at all, which is ironic, given that the method is called the Socratic method. If a student does question a judge, they must do so by reference to another case, and another judge – i.e. they must question authority by reference to another authority, rather than questioning authority itself. In this sense, the current Socratic method is used to pacify students and prevent them from questioning what they are being taught. This works in a similar manner to the ways in which ideologies discourage lateral thinking by discouraging followers from questioning the basic foundations of the ideology. As Yuval Harari suggests, “How do you cause people to believe in an imagined order[?] First, you never admit that the order is imagined”.[12]
Langdell himself did question authority on occasion, but only if “their opinion did not square with the original [cases themselves]”.[13] He “cultivated the intellectual autonomy of students,” but only in so far as they had a different, judicial opinion on how a case should be understood.[14] If a student uncovered a new ratio decedendi in a case, Langdell was the first to change his opinion.[15] He did so three times in a week, on one particular occasion.[16] However, Langdell’s method failed to interrogate the origin of those decisions, the philosophy behind those decisions or whether the decisions themselves were unjust. Langdell taught the law, but his method failed to question where the law came from. What mattered to Langdell was the outcome itself.
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.[17]
In the above reasoning of law as a “science [of] principles,” Langdell closely mirrors the German legal philosopher Hans Kelsen. Kelsen argued for a study of law as “pure law,” suggesting that law should be rid of the “baggage” of the social sciences and studied in its own right.[18] By ‘pure law,’ Kelsen meant that no justification for a case was ever necessary, as law derives its authority from prior law alone, and the highest piece of law can “presuppose its own validity,” as in the case of constitutions.[19] Under the case method, students are implicitly taught in this way to “draw boundaries between the spheres of legal, moral and political consideration”.[20] By focussing solely on the reasoning of judges, students learn that a decision is always justified by reference to another decision.[21] Never is the ‘end point’ or the original conception of law, in terms of its derivation from politics, society, morality, social values and so on, allowed to be questioned.[22] In this way, the case method intrinsically justifies the existing legal order and the social authority of the state.
One of the biggest flaws in Langdell’s method, particularly in his use of the Socratic method, is its tendency to allow those in a position of power, the teacher, the judge, the law, to interrogate those in a position of weakness, the student. As the American founding father Benjamin Franklin elucidated: “I found this [Socratic] method the safest for myself and very embarrassing to those against whom I used it”.[23] This is a frequently cited complaint of those who critique the Socratic Method. Orin Kerr calls the method “cruel and psychologically abusive” because it creates a strange power dynamic of authoritative distinction between teacher and student.[24] It is this final point of power dynamics, which Socrates himself sought to redress in his actual use of the Socratic method in Ancient Greece.
Toward a new Socratic Method:
Although Langdell correctly identifies a Socratic form of questioning in Maieutics, he fails to understand that the method used by Socrates was primarily used on figures of authority. This is revealed with a wider reading of Socrates, particularly when Maieutics is read in conjunction with the Apology.
At the heart of the Apology is Socrates’ trial for the corruption of the youth of Athens.[25] Socrates was charged with corrupting the youth by questioning their wisdom, but also by questioning the social and political institutions of Athenian high society. His “curious” nature is what condemns him in the eyes of his accusers.[26] At the trial, Socrates lays out his vision of what it is to be wise, a pivotal point of which is a Socratic method type analysis of the state. Before one can look to his own private interests, Socrates says, in the trial, one must “look to himself and seek virtue and wisdom”.[27] Before one can look to the interests of the state, Socrates says, one must “look to the state”.[28]
By “look,” Socrates here means examine, in the sense that one must examine the state before blindly following its dictates. One must look to himself, in the same manner in which the “unexamined life is not worth living”.[29] Here we might extend the idea of the state’s “interests” to the enforcement of law. The law is after all a state’s primary interest, its existential existence, for a state can only exist on the basis that the people follow the law, foremost of which is the constitutional basis of the state’s authority. A lawyer who does not examine the law he learns or what the state wishes him to do or the states ‘interests’ in enforcing said law is not virtuous or wise in Socrates’ phrasing. He is not ‘looking’ to the state, before enforcing its interest. A study of law which neglects to mention that the state has any interests in applying one particular law over another, one particular case over another or one particular agenda over another, is not a Socratic study of law at all.
Instead of using the Socratic method on inexperienced students, the Apology seems to suggest that the Socratic method should be used on figures of authority. In the middle of the trial, Socrates’ recounts the story of the Oracle of Delphi declaring him the wisest of all men.[30] To disprove this absolutist claim, Socrates seeks out figures of authority and wisdom whom he suspects are wiser than he. He begins to interrogate them using his Socratic method, and this is what gets him in trouble.[31] Here the Socratic method is revealed as a tool to interrogate those who hold themselves out to be wise, to test whether they are in fact wise at all.
To undergo such a test, the figure must have authority – which is why it is strange to use the technique on a student. Socrates himself suggests that he primarily used the method on three individuals. A politician who claimed himself wise, an artist, who did the same, and a poet, whose wisdom was self-evident in his poetry.[32] In each case Socrates questioned a figure of authority on the subject matter. In the case of the politician, Socrates was literally ‘looking’ to the state in the manner expressed above.[33]
The above examinations of the Socratic method as used in the Apology reveal three distinct claims. One, the method should be used to question the interests of the state. Two, the method should be used to question those in authority. Three, the method should be used to question those whom hold themselves out to be wise. A modern version of the Socratic method would therefore encompass all three.
The law, being an interest of the state, a source of authority, and an often self-proclaiming source of wisdom, would be an ideal target for the modern Socratic method. The student, being a subject of the state, a subordinate, and a self-proclaimed amateur in their field of training, would not be an ideal target for the Socratic method. It is this foundational mistake which Langdell made in his formulation, and which should be corrected to adjust the method for the use of students.
Conclusion:
While Langdell’s Socratic method was an improvement on prior forms of legal education, a new reformulation is necessary to accommodate the actual wisdom and virtue of Socrates. It is well time for a second Socratic method, one that equalizes the power dynamic between teacher and student and empowers the student to fully engage in critically examining legal principles.
Once students are empowered to admit that they do not, in fact, have all the answers to law waiting for them in a dusty old casebook but must reason through the law for themselves by asking questions to those in authority, they will grow to understand that the foundation of knowledge is ignorance as Socrates suggests, and that wisdom comes from challenging authority rather than blindly following it
[4] ‘The Case Study Teaching Method,’ Harvard Law School: The Case Studies <http://casestudies.law.harvard.edu/the-case-study-teaching-method/>
[5] Christopher Columbus Langdell, quoted in William Schofield, ‘Christopher Columbus Langdell,’ 55 The American Law Register 5 (1907) 278.
[6] Harold Anthony Lloyd, ‘Raising the Bar, Razing Langdell’ Wake Forest Law Review 51 (2016) 231.
[7] Todd D. Rakoff and Martha Minow, ‘A Case for Another Case Method’ 60 Vanerbilt Law Review 2 (2007) 599.
[8] Christopher M. Ford, ‘The Socratic Method in the 21st Century,’Masters Thesis, West Point <http://www.usma.edu/cfe/literature/ford_08.pdf> 3.
[9] ‘Maieutics’ in Plato, Plato: Theatetus (R. Waterfield trans.) (Penguin, 1987) 25-29.
[10] ‘Maieutics’ in Plato, Plato: Theatetus (R. Waterfield trans.) (Penguin, 1987) 25-29.
[11] ‘Maieutics’ in Plato, Plato: Theatetus (R. Waterfield trans.) (Penguin, 1987) 25-29.
[12] Yuval Noah Harari, Sapiens.
[13] William Schofield, ‘Christopher Columbus Langdell,’ 55 The American Law Register 5 (1907) 276.
[14] Bruce A. Kimball, ‘Christopher Langdell: The Case of an ‘Abomination’ in Teaching Practice,’ The NEA Higher Education Journal (2004) 30.
[15] Bruce A. Kimball, ‘Christopher Langdell: The Case of an ‘Abomination’ in Teaching Practice,’ The NEA Higher Education Journal (2004) 30.
[16] Bruce A. Kimball, ‘Christopher Langdell: The Case of an ‘Abomination’ in Teaching Practice,’ The NEA Higher Education Journal (2004) 30.
[17] Christopher Columbus Langdell, ‘Preface’ in A Selection of Cases on the Law of Contracts (Brown & Little, 1879, 2nd ed) x.
[18] ‘The Pure Theory of Law’ (July 7 2010) Stanford Encyclopedia of Philosophy <http://plato.stanford.edu/entries/lawphil-theory/>; Hans Kelsen, Pure Theory of Law (University of California Press, 2007).
[19] ‘The Pure Theory of Law’ (July 7 2010) Stanford Encyclopedia of Philosophy <http://plato.stanford.edu/entries/lawphil-theory/>; Hans Kelsen, Pure Theory of Law (University of California Press, 2007).
[20] Vanessa E Munro, ‘Legal Education at the Intersection of the Judicial and the Disciplinary’ (2003) 2 Journal of Commonwealth Law & Legal Education 1, 39; Gonzalo Vitalta Puig, ‘Legal Ethics in Australian Law Schools’ (2008) 42(1) The Law Teacher 34.
[21] Edward J. Phelps, ‘Methods of Legal Education’ (1892) in Steve Sheppard (ed) The History of Legal Education in the United States: Commentaries (Salem Press, 1888) 532.
[22] John D. Whyte, ‘Finding Reality in Legal Education’ (2013) 76 Saskatchewan Law Review 99.
[23] Benjamin Franklin, Benjamin Franklin: His Autobiography (Harpers & Collins 1849) 26.
[24] Christopher M. Ford, ‘The Socratic Method in the 21st Century,’Masters Thesis, West Point <http://www.usma.edu/cfe/literature/ford_08.pdf> 3.
[25] Plato, Apology (Benjamin Jowett trans.) The Internet Classics Archive <http://classics.mit.edu/Plato/apology.html>.
[26] Plato, Apology (Benjamin Jowett trans.) The Internet Classics Archive <http://classics.mit.edu/Plato/apology.html>.
[27] Plato, Apology (Benjamin Jowett trans.) The Internet Classics Archive <http://classics.mit.edu/Plato/apology.html>.
[28] Plato, Apology (Benjamin Jowett trans.) The Internet Classics Archive <http://classics.mit.edu/Plato/apology.html>.
[29] Plato, Apology (Benjamin Jowett trans.) The Internet Classics Archive <http://classics.mit.edu/Plato/apology.html>.
[30] Plato, Apology (Benjamin Jowett trans.) The Internet Classics Archive <http://classics.mit.edu/Plato/apology.html>.
[31] Plato, Apology (Benjamin Jowett trans.) The Internet Classics Archive <http://classics.mit.edu/Plato/apology.html>.
[32] Plato, Apology (Benjamin Jowett trans.) The Internet Classics Archive <http://classics.mit.edu/Plato/apology.html>.
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