The choice of the point(s) of view from which the story is told is arguably the most important single decision that the novelist has to make, for it fundamentally affects the way readers will respond, emotionally and morally, to the fictional characters and their actions.
But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophesies of what the court will do in fact, and nothing more pretentious, are what I mean by law.
Standpoint
Jurisprudence is a questioning and reasoning activity. A useful starting point for almost any enquiry is: who is asking whom what question(s) in what context? This is one version of ‘clarification of standpoint’. I latched on to the basic idea shortly after sitting my finals in Oxford in 1955. I have been using it ever since. This section sketches the story of its development. The concept will recur in several later chapters.
Professor Hart’s lectures in 1954, in particular his inaugural lecture, started me thinking about questions and questioning and that led on to my interest in the idea of standpoint or point of view. Hart criticised ‘what is … ? questions’, such as What is art? What is justice? What is law? What is a right? He showed that they are often defective and need to be challenged before they can be sensibly answered. They can be defective, first, if it is not clear what they mean and, secondly, if interpreted in particular ways, they may be based on false or dubious assumptions.
The meaning of questions like ‘What is art?’ or ‘What is law?’ depends on who is asking the question in what context for what reason. It could be a foreigner unfamiliar with the English word, asking for a simple verbal equivalent in another language. In the case of the word ‘law’ this is not easy, because it is ambiguous, and in one of its primary meanings there is no distinction made in English between lex/ius, droit/loi, recht/gesetz. In some contexts that may not matter, but in others this opens up a Pandora’s jar of questions.3 Or the questioner may be seeking to clarify a possible ambiguity: whether in this context ‘art’ is being used only in the aesthetic sense or is referring to any kind of skill – as in the statement ‘negotiation is an art’. But the questioner may be an art historian, whose field is Art. Why is she asking this question? Maybe she is setting an examination paper? Or maybe she is thinking how to stipulate the usage of the term in an article she is writing on art in Papua New Guinea in order to delineate the scope of her enquiry; or maybe she is asking: what is the nature or essence of art? A sensible response to this last question is to express scepticism about the assumptions behind it. Why assume that art has a nature or essence? Maybe she is deeply puzzled about philosophical questions underlying her field of specialisation – she is worrying over a concept that she has previously just taken for granted. It may be appropriate to ask her to frame the question more precisely. Is she asking which of two (or more) theories of art is the most convincing? Or is she, inappropriately, asking for a general definition of the word ‘art’? Or maybe one can infer from her tone that she is dismissing all such theoretical questions and, following jesting Pilate, asking ‘What is art?’, but not staying for an answer. In short one needs to clarify the meaning of the question, the concerns behind it and the standpoint of the questioner. Since many questions in Analytical Jurisprudence had been posed in ‘what is … ?’ terms, Hart’s challenge was immensely important in the subsequent development of the field.
Hart’s inaugural lecture was seminal for me. However, over time I became increasingly dissatisfied with his narrow view of the agenda of Jurisprudence – was he focusing on the best questions? He had adopted the doctrinal assumptions of his predecessors and focused on much the same concepts, such as law, right, obligation, rule, but not on concepts needed for empirical enquiries, even though he viewed law as a social phenomenon.4 He upgraded the methods of Analytical Jurisprudence, but stuck with its narrow agenda.5
I mentioned in the Preface that in July 1955 I picked up a battered copy of R. G. Collingwood’s An Autobiography in a bookshop in Keswick and that it was an epiphany. It is surely a great work of literature, indeed of fiction. The key idea for me was that all History is the History of thought: to understand Aristotle’s Ethics, or Nelson’s decisions at Trafalgar, one needs to put oneself in the writer’s or actor’s shoes and try to understand their situation, concerns, role, concepts, information and perceptions in order reconstruct what they were thinking and what it meant.6
In a famous article on causation, Collingwood brought out another aspect: ‘A car skids while cornering at a certain point, turns turtle, and bursts into flame. From the car-driver’s point of view, the cause of the accident was cornering too fast, and the lesson is that one must drive more carefully. From the county surveyor’s point of view, the cause was a defective road surface, and the lesson is that one must make skid-proof roads. From the motor-manufacturer’s point of view, the cause was defective design, and the lesson is that one must place the centre of gravity lower.’7
This illustrates clearly that different kinds of specialists have different kinds of lenses: they bring concepts, questions and specialised knowledge from different professional or other backgrounds. The concept of lens is crucial in standpoint analysis in relation to both theoretical and practical questions.
Reading Collingwood was for me a huge step forward, but it did not dissolve all my puzzles. Soon after that, I read E. M. Forster’s Aspects of the Novel, written in 1927.8 Two related, seemingly contradictory, ideas struck me. First, Forster praised Percy Lubbock’s The Craft of Fiction (1921) and quoted with approval his statement:
The whole intricate question of method, in the craft of fiction, I take to be governed by the question of the point of view – the question of the relation in which the narrator stands to the story.9
I devoured Lubbock and most of the novels he discussed. The central ideas were distinctions between the impartial or partial onlooker and the omniscient author and seeing everything through the eyes of one or more participants. This developed Collingwood’s idea of History by differentiating several different types of points of view. It had immediate resonance in relation to studying law.
However, and secondly, in the later parts of Aspects of the Novel Forster seemed to alter course. He sharply criticised Henry James for adhering too rigidly to a consistent standpoint – sacrificing humanity and life to aesthetic form. In particular, in The Ambassadors James constructed an aesthetically complete form – like an hourglass:
[B]ut at what sacrifice! … the cost is a very short list of characters, – mainly one observer who tries to influence the action and the second-rate outsider – and these characters … are constructed on very stingy lines … Why so wanton with human beings?10
In short, James’s aesthetic formalism cut out the messy reality of life. That was just how I felt about Law and the dominant tradition – only a little less dominant today – of doctrinal formalism, as I interpreted it then (Chapter 13). This emphasis on particularity of different viewpoints was intuitively appealing. When I defected from Hart – at least he thought so – to something called ‘realism’, standpoint and multiple perspectives became key concepts for me. But, of course, I stuck with his idea of internal points of view.
Whilst in Dar es Salaam in 1955 I studied several of Collingwood’s more substantial works, especially The Idea of History and The Principles of Art. For a while I flirted with the idea of constructing a novum organum for Law along Collingwoodian lines, but I soon realised my own limitations and kept returning to just two specific ideas in An Autobiography: standpoint and the logic of question and answer.11
Differentiation of standpoint was already a powerful tool in both Analytical Jurisprudence and Philosophy.12 For example, Bentham’s distinction between the expositor and the censor was central to his thought. In an influential article John Rawls claimed to dissolve the long-standing battle between retributivists and utilitarians about the justification of punishment by assigning each theory to a different standpoint: utilitarians address the legislator’s question: under what conditions should [state] punishment be justified? The retributivists answer the judge’s question: should I punish this person? This led on to a controversial distinction between act- and rule-utilitarianism. Several other jurists used differentiation of standpoints to dissolve puzzlements and advance their ideas by showing that rather than disagreeing about shared questions, protagonists in long-running debates were addressing different questions.13 This has great explanatory power, but is sometimes overused. As we shall see, clarification of standpoint also has other uses, for example in anchoring an enquiry at an early stage, in bringing to the surface how much legal discourse is participant-oriented, and raising related questions about roles.
From early on, I emphasised the importance of clarifying standpoint in teaching and developed it as a key intellectual tool in that context.14 It brings out the extent to which academic law is a participant-oriented discipline. Law students are rarely asked to adopt the standpoint of observers rather than actors.15 Rather they are asked to pretend to be different kinds of participant: Advise your client; What should we (the legislator) do? How should I (as appellate judge) decide this question of law? What is for me (advocate) the best theory of the case? This is obvious in role plays, such as moots and mock trials. But it is much more pervasive than that. And I noticed that in intellectual exercises students often shift standpoints without realising it. Nietzsche said that the commonest form of stupidity is forgetting what one is trying to do. For law students the commonest form of stupidity may be forgetting who they are pretending to be.
Clarification of standpoint can be quite simple or more or less complex, depending on the context and nature of the enquiry. In teaching, I have usually advised students to follow a simple three-step protocol at the start of any enquiry: who am I? At what stage in what process am I? What am I trying to do?
The first question is not an invitation to existential angst. For law students it is normally enough to select one of the standard functionaries, such as advocate (for one party) or judge. The second question specifies the situation and immediate context. If this is litigation, which law students are frequently asked to imagine, it is useful to begin with a simple linear model of the total process of litigation starting with a triggering event, such as a death, a minor road accident, or an incident in a pub. In simplified form the model outlines a typical series of decisions and events or stages in litigation involving different actors, including investigation, a decision to seek legal advice, the initial consultation followed by action (e.g. a solicitor’s letter or an arrest), through to a decision to prosecute or sue or abandon the case, or to negotiate (plea bargain? settlement? mediation?), pre-trial decisions, preparation the night before trial, actions and decisions in court by judges and other participants, procedural decisions, decisions on the law, decisions on the facts, and then on to decisions on sanctions (punishment, damages or other remedies), decisions whether to appeal, other decisions in the appellate process, post-trial decisions (including parole, bankruptcy, revenge) and the end of the process or its revival or continuation as in a feud. This model illustrates the variety of actors at different stages of litigation or other dispute processes, with different roles, vantage points and aims, and information needs. It is linear, whereas in practice the sequence of decisions and events in disputes can vary considerably.16
Of course, legal actors are involved in other processes and transactions besides litigation: negotiating deals, drafting contracts, interviewing, checking title, attracting clients, inventing tax avoidance schemes, destroying evidence, money laundering and so on; again, each of these has more or less standard procedures and models, but in every case there may be special other considerations.
It is important to distinguish between using standpoint analysis for rational construction or reconstruction of purposive thinking and for psychological or otherwise empirical study of a person’s point of view, including their attitudes, feelings, intuitions and so on. These might be crudely characterised as the ‘right brain’ and ‘left brain’ approaches.17 Collingwood used standpoint in the first way and was criticised for being too rationalistic. To start with I used clarification of standpoint in much the same way, pragmatically as a useful intellectual device, like Collingwood, usually positing a rational actor thinking purposively, typically adopting a normative model of a standard role, rather than using standpoint as a tool for empirical study of actual actors or classes of actors. Later I started to reflect about the implications of the idea. In a series of papers, spread over many years, I elaborated the general approach, while still focusing more on the pragmatics than its philosophical implications.18
Theorising standpoint
Having been introduced to the idea of standpoint by Collingwood and Lubbock in 1955, I continued to use it in a rough and ready way in teaching and in trying to sort out disagreements and differences in legal theory. Then, while visiting the University of Pennsylvania for a semester in 1971, I began to develop the idea more systematically. I gave a course on American Legal Realism and we spent about two weeks focusing on Oliver Wendell Holmes’s classic article ‘The Path of the Law’ (1897). This is the text that has been most used to suggest that Holmes, Llewellyn and other Realists advanced ‘a prediction theory of law’. They did nothing of the sort.19 I argued that the context was an address about legal education to law students at Boston University in which Holmes was urging intending practitioners to adopt a more realistic standpoint for them than those of appellate court judges and advocates, viz. ‘The Bad Man’ and his legal adviser, a counsellor more often in his office than in court. The weakness of the Langdellian case-method system has been that it makes students focus on the higher reaches of the system and wholly exceptional client problems. In hammering home his plea to students to be more realistic about legal practice Holmes resorted to rhetoric and epigrammatic statements, including a famous passage in which he introduced the amoral Bad Man who ‘does not care two straws for the axioms or deductions’. He is only interested in what the courts of Massachusetts or English courts are likely to do in fact.
Severed from its context, this passage was widely treated as Holmes’s definition, or even theory of law. In 1971 I drafted a paper which defended him from these unscholarly interpretations, but criticised him for being too court-centric, omitting the other decisions and events that a rational real bad man might be concerned to predict.20 However the device suited Holmes’s immediate purpose, which was to persuade students to adopt the standpoint of a typical office lawyer and to wash this standpoint in ‘cynical acid’ so as to distinguish legal and ethical questions. For Holmes’s Bad Man also provides a powerful image for a positivist perspective, which sharply distinguishes between morality and law. The Bad Man is amoral, rather than immoral.21
This paper was mainly about the implications of ‘The Path of the Law’. Switching to the standpoint of the Bad Man and his advisers does make prediction a central concern and presents legal rules as only one of many aids to prediction. But prediction of what? Not just what courts will do. For a more realistic approach one needs to go beyond Holmes, who focused on courts, and ask for a more detailed risk analysis for an individual citizen assessing a number of contingencies and options, such as how likely is it that they will be suspected, brought in, interrogated and so on?
Whilst in Philadelphia in 1971 I became interested in Erving Goffman’s writings, especially Asylums (1961) and Presentation of Self in Everyday Life (1959). As he was in the Sociology Department, I contacted him and we met in a bar for a long conversation. He was encouraging, but the only detail that I remember is that he advised me to steer clear of abstract role theory and to keep things concrete. I suspect that he influenced me more profoundly through his writings.
Standpoint analysis became a central element in my approach especially in teaching interpretation of legal and social rules (Chapter 11), reading juristic texts (this chapter, below) and Evidence (Chapter 14). My 1971 essay contained the seeds of a more general analysis of standpoint, which I developed in several later papers and applied systematically in student books on rules and evidence.22 These essays explored, inter alia, ‘bottom-up’ perspectives and total process models of litigation as useful thinking tools.
I am sometimes asked: what is your concept of standpoint? If that means, what factors do I take into account in clarifying standpoint, the answer is: it depends on the context. The term ‘standpoint’ is quite ambiguous and with several shades of meaning in different contexts.23 It is often best kept quite vague at an abstract level. Terms such as vantage point, historical situation, immediate context, role, perspective and objectives sometimes need to be differentiated. Sometimes epistemology or ideology may be relevant. Often a general concept of standpoint suffices; sometimes it needs elaborate analysis, observing such distinctions or with reference to immediate concerns, available information, tactics, specialised lenses and so on. Collingwood’s account of causation, quoted above, illustrates how different kinds of specialist have diverse kinds of lenses in practical as well as theoretical enquiries. They bring to bear concepts and questions and a stock of knowledge from their professional backgrounds. And there may well be other local or specific factors that influence the standpoint and judgement of an individual engineer or county surveyor or insurer about causation in a particular road accident.
In teaching I usually restricted the standpoint analysis to various standard characters, differentiated mostly by their roles: legislator, judge, jurist, advocate, adviser, investigator, party, user, witness, victim, offeree, and many others have stereotypical roles as actors in legal processes. They operate in different, but related, contexts with different objectives and resources. Standard standpoints, characterised mainly in terms of situation and role, have some explanatory power. They capture common ways of differentiating between classes of actors but can fall short on particularities. A historian trying to explain Nelson’s decisions at Trafalgar (or that of each French and Spanish Admiral) could start with stereotypes, but very soon would need more data – about his vantage point, the information he had, his ideas about the enemy’s intentions and capacity, the weather conditions and his own expertise, skills, temperament, strategy and objectives. In analysing the standpoint of a particular legal actor in a specific situation ‘realistically’ one may need to ask many detailed questions about their situation relevant to the particular enquiry.
It is worth emphasising that the same actor, such as a solicitor or prosecutor, in the same case may have different roles and aims at different stages even when representing the same client – initially the solicitor will typically adopt a pessimistic stance, advising caution; but if the case gets to court then the role of the advocate (who may or may not be the same person) is typically to win the case by appropriately forceful argument; yet again, in a plea in mitigation in a criminal case the situation, the roles of adjudicator and advocate and the relevant information are different and, for example, previously inadmissible evidence may now be used.
Sometimes students are asked to adopt the role of observer, or participant observer, rather than an actor. As with actors, there are many kinds of observer.24 But these are not always easy to differentiate. This is nicely illustrated by the elusive role of the expositor. Even when writing a doctrinal essay or discussing a contested point of law, the student is often implicitly asked to adopt the role of expositor. But what exactly is that role? It is often remarked that learned authors of treatises or scholarly articles are participants in the legal system – they may influence judges and practitioners, they may even be cited as authorities, and they may shape the climate of opinion or help to change the law directly or indirectly or even through private legislation.25 In short, expositors can have impact. They have the ambiguous role of participant-observers. On one view, there is no such thing as neutral or objective exposition of law. But many expositors claim to be legal scientists or at least relatively detached scholars (Chapter 13). Such considerations make the standpoint of expositor more problematic than it may seem at first sight.26
The role of the judge is similarly problematic, especially in appellate or otherwise hard cases. Most will agree with Bentham that in routine cases the judge should aspire to rectitude of decision; that is to say, apply the law correctly to facts proven to be true. But a great deal of Anglo-American academic literature is focused on cases where the law is unclear. What is the nature and extent of judicial discretion? If judges make law, are they involved in interstitial legislation? Can or should judges be guided by morality in hard cases? If so, whose morality? How can judicial discretion be reconciled with the Rule of Law? Is the judicial finder of fact like a historian? What is the significance of the maxim ‘judges decide, historians only conclude’? How far are all of these questions over-generalised?27
Much intellectual effort has been invested in such issues about adjudication and there is little consensus at general or even local levels. That is obvious. Less obvious is the point that adopting the standpoint of an appellate judge to try to clarify other theoretical issues typically allows puzzlements about the judicial role to complicate and obscure puzzlements about other topics.28
I am also asked whether my approach to standpoint commits me to rejecting the idea of ‘a view from nowhere’.29 This raises profound and complex philosophical questions about objectivity, knowledge, freedom, the self and so on, to which I do not have ready answers. My interest and use of the idea of standpoint has been more pragmatic than philosophical. My response is that there is probably a tendency in that direction, but no necessary commitment, that I consider objectivity and subjectivity to be relative matters and that as a scholar I aspire to relative detachment.
One final observation: analysis of standpoint brings out the unrealism of much academic law: a few elementary statistics can show how rare contested trials and appeals on questions of law are in contrast to decisions at other stages of litigation or in non-litigious processes, yet the tendencies in academic law go in the reverse direction. Students are usually asked to pretend to be actors in the higher reaches of the system. It is much more fun to pretend to be a Supreme Court Justice, the Attorney-General or a Minister or a QC or a policy-maker than a magistrate, pupil barrister or legal executive, administrator or witness. Moots are admittedly easier to stage than mock trials, which also tend to be focused upon that wholly exceptional event, the contested trial. There are some justifications for treating jury trials or appeals to the Supreme Court as paradigmatic, in terms of their visibility, importance and interest; but the main driver for emphasising these lofty roles is the doctrinal tradition of legal scholarship and education: the assumption that the study of doctrine is the be-all and end-all of academic law (Chapter 13).
Questions and questioning
Questions have taught me nearly all I know. I am inquisitive, have developed questioning skills in teaching, examining, interviewing, debating, problem-solving, inspecting and, of course, enquiring and thinking. A central aim of much of my activity in legal education has been directed to righting the imbalance between emphasis on know-what to the detriment of know-why and know-how (Chapter 16). Latterly I have started to ask questions about questions. Scattered throughout this book I have given examples of questions that I have asked or failed to ask. Even as a child questions intrigued and bothered me: I failed to ask my mother directly what my ‘thing’ was called and wasted a lot of time failing to find out; at school there were questions that put me on the spot (‘Boxing or confirmation?’), and ones that troubled me (How many of the Thirty-nine Articles do I really believe?) (Chapter 2). We have seen that Herbert Hart was the first to teach me that questions may be ambiguous, based on false assumptions or otherwise open to criticism (Chapter 3). I learned from Collingwood that a question is often the attempted expression of an underlying concern or puzzlement and that [most] propositions can usefully be looked at as answers to questions; and that a question may be an indirect or misleading expression of an underlying concern. For example, in reading a text it may be useful to start by asking: what questions was she trying to ask? What was biting her? This idea leads on to clarifying standpoint: who is asking what question in what context, and why?31
In our academic culture students starting on a PhD are advised to clarify, refine and articulate with precision their ‘research question’ and ‘sub-questions’ before moving on to matters of method, hypotheses and the like. A carefully crafted research question can anchor an enquiry, but is open to revision. When reading a thesis, I regularly check early on whether the conclusions are answers to the original research question, which sometimes gets forgotten. If a thesis is conceptualised as an argument justifying one’s conclusion(s), the ideal type should fit the model Question-Answers-Reasons (QAR). This is sound advice, provided the student does not get prematurely stuck into a corner with a narrow, sterile question or set of questions, or ones that she is not really interested in or competent to answer. Questions about standpoint and concerns can help the student bring to the surface what she really cares about or wants to know: what is biting her?
There is a large and diverse literature on questions and questioning. Much of it relates to practical advice on skilful questioning in particular kinds of context: how to ask questions in class or in police investigation and interrogation, or interviews on TV or for jobs and all sorts of other practical enquiries. In many of these the questioner knows or has a pretty good idea of the answer in advance – examiners are meant to do so and barristers are advised that in cross-examination one should never ask a question to which one does not know the answer. There are fascinating accounts of the skills of good questioners (such as David Frost in Frost-Nixon, or Jon Snow, or Sherlock Holmes). There are collections of notable cross-examinations as models for advocates, especially in America. One of my favourite passages in literature is the scene in Dostoyevsky’s Crime and Punishment in which Porfiri Petrovitch interrogates Raskolnikov like a fly-fisher playing a trout.
In my role as teacher, examiner and inspector of institutions (mainly law schools) I became quite proficient at asking questions. But it was much later that I began to think and read about the theory and practice of effective questioning in different contexts. Much of it is to do with psychology, but there is also a fragmented philosophical literature, which I found rather disappointing.32 One question that is open to criticism, but which still nags me is: what makes for good questions? Intellectually I know that there is no ‘silver bullet’ at such a general level and that on the whole the appropriateness of a question or line of questioning depends on context – that is, who is asking whom, about what, for what purpose, in what circumstances, with what resources and prior information? Some of the underlying concerns relate to creativity and invention, others to questioning tacit knowledge and working assumptions.33 There is plenty of writing about specific types of questioning in, for example, cross-examination, medical diagnosis and social science investigation. I think that a few general things can be said. However, the fact is that I am a practitioner more than a theorist of questioning and an essay on ‘good questions’ must await another occasion.
In this book I have deliberately used questions as a device for stimulating interest and there are many more questions than answers. That, I think, is appropriate for a jurist’s memoirs. However, I have borne in mind Morris Zapp’s criticism of his colleagues in the Rummidge English Department:
Their pathetic attempts at profundity were qualified out of existence and largely interrogative in mode. They liked to begin a paper with some formula like ‘I want to raise some questions about so-and-so’, and seemed to think they had done their intellectual duty merely by raising them. This manoeuvre drove Morris Zapp insane. Any damn fool, he maintained, could think of questions; it was answers that separated the men from the boys. If you couldn’t answer your own questions it was either because you hadn’t worked on them hard enough or because they weren’t real questions. In either case you should keep your mouth shut. One couldn’t move in English studies these days without falling over unanswered questions which some damn fool had carelessly left lying about.34
‘Thinking like a lawyer’: ‘legal method’, ‘skills’ and ‘legal reasoning’
The phrase ‘thinking like a lawyer’ became fashionable as a way of epitomising learning objectives of the Langdellian case-method approach in the United States. Restricted to case-law skills, this is easily criticised, for it assumes that all lawyers think, and that they think in the same way about the same matters. Taken literally these assumptions are clearly false, for legal practice is stratified, complex and diverse. Moreover, understanding law requires further standpoints and questions.
It should be clear by now that throughout my career I have been strongly committed to the values of liberal education in the English and Scottish traditions. Both the classical and the medieval seven liberal arts were all oriented to developing transferable intellectual skills.35 I have also supported a switch within professional training from emphasis on legal knowledge to direct teaching and learning of specific professional skills and techniques, such as negotiation, advocacy and drafting, but that needs to be kept fairly distinct from developing general intellectual skills (Chapter 16).36
‘Legal method’
As a teacher my central aim has been to teach students to think, actively, analytically and imaginatively. My teaching of ‘Legal method’, Juristic Technique, Evidence, Torts and even Jurisprudence (how to read a text, conceptual analysis, constructing arguments, questioning one’s own assumptions and presuppositions37) have all been skills-oriented in accordance with the values of liberal traditions of learning. Despite my unhappy experience of Classics at school I did learn how to read, write, parse, translate and even compose passable light verse – all of which have stood me in good stead. It was tough and it was not fun. The mantra for most of my own courses has been: ‘TOUGH, BUT FUN’. My undergraduate Law degree, despite its shortcomings, as well as teaching me how to write to deadlines, did develop some powers of analysis. So did my self-education in Philosophy.
‘Skills’
As an educationist I have had to fight on four fronts: first, against rote learning and emphasis on coverage rather than depth; secondly, for balancing know-what, with know-how and know-why (knowledge, skills, understanding); thirdly, a rearguard action against the threat of imposition of more knowledge-based material onto already overloaded undergraduate curricula when professional training in England, especially for the Bar, moved to a greater emphasis on direct teaching of basic professional skills. Here, the central argument was that as academics ‘we are in the skills business too’.38 Fourthly, I then had to support this position against academic colleagues who thought that emphasis on skills was illiberal, ‘instrumentalist’ or banausic. My argument was that this was to conflate specific operational techniques (such as letter writing or conveyancing) with transferable intellectual skills. Liberal education in classics, history, literature and the humanities has been largely skills-based: historians do not just mug up facts, rather they learn how to do history and be historians; similar approaches are found in most studies in logic, rhetoric, literature and the pure and applied sciences. Such approaches are sometimes crudely instrumentalist, but that is neither necessary nor desirable.39
As a scholar I have traced the history of the American Skills Movement in legal education, placing Langdell, Llewellyn and Frank at the centre.40 I told the story largely in terms of Langdell’s switch from knowledge to case-law skills, which dominated elite American law schools to the 1940s and beyond. Llewellyn wrote that Langdellian skills were ‘sharp and well-instilled, but the wherewithal for vision was not given’.41 In 1944 Llewellyn himself chaired a Committee on Curriculum that advocated a broadening out from case-law skills to a list of six ‘lawyering skills’, which included drafting and appellate advocacy. In the late 1950s Irving Rutter, a pupil of Llewellyn’s, produced an analytical model for a systematic approach under the title of ‘A Jurisprudence of Lawyers’ Operations’.42 Such an approach, he suggested, should begin with a job analysis of what lawyers in fact do, breaking each kind of job down into operations, then transactions and then extending a skills analysis of each ‘skill set’ into a more specific set of techniques. Llewellyn, as we have seen, saw no inconsistency in emphasising skills with proclaiming that ‘the best practical training, along with the best human training – is the study of law, within the professional school itself, as a liberal art’.43 Later Rutter’s approach was the basis of the McCrate Report on ‘Fundamental Lawyering Skills’ which was quite influential in the United States.44 The main weakness of that report was its insistence on retaining the fiction that the American legal profession is homogeneous, monolithic and classless, which empirical studies have shown is just not the case. This false assumption underlies the ideas of ‘basic skills’ and ‘core subjects’.45
My first public experience of ‘the skills debate’ was at the Commonwealth Law Conference in 1993. A distinguished Australian QC argued that ‘skills can only be picked up in practice and that the function of law schools is to teach legal doctrine’.46 This stimulated some sharp rejoinders. He had quoted a great classical scholar as authority for his argument. My modest contribution was to point out that classical education is itself largely a training in transferable intellectual skills. This conflation of intellectual skills and professional techniques has continued to bedevil discussions about ‘legal method’ and ‘legal skills’.
There is no point in fighting old battles here and most of my somewhat repetitive writings in the area are easily accessible.47 The war is not over, because bureaucracy, new technology and student apathy are among the forces that will generally push towards easier options than thinking for oneself. However, I do think that the time is ripe for rethinking our idea of ‘legal method’ in the current context. This is partly because the skills and competencies to be expected of future law graduates and lawyers of different kinds are expanding all the time and we do not have a coherent working theory for dealing with this.
To begin with, it is important to distinguish between the skills that an undergraduate law student needs and ‘lawyering skills’. For example, some courses on ‘Legal Method’ deal with such matters as how to use a law library and other study skills.48 Most emphasise skills in interpreting cases and statutes. Some have extended the idea to introduce even first-year undergraduates to basic ‘lawyering skills’ such as negotiation, advocacy and drafting. While not opposed to that idea in principle, I think that it is important to keep intellectual skills conceptually separate from study skills and professional techniques that are quite specific to particular kinds of practice. What legal practice involves ranges from sharply honed generic intellectual and problem-solving skills to specialised kinds of operation or to form-filling or box-ticking or adept use of scissors and paste.
If intellectual skills are to be at the centre of academic legal education then enough time needs to be allowed for direct study as well as reinforcement. This is especially the case if the idea of ‘Legal Method’ is expanded to include fact-handling as well as rule-handling, comparative method (‘we are all comparatists now’),49 basic numeracy and scientific literacy (science and scientific evidence are growing in importance) and some basics of semantics and conceptual analysis. Yet the more skills one tries to fit into a single module or course the lower will be the levels of competence attained. Otherwise ‘first steps’ will decline into ‘learning about’ a shift back from How? to What?, as happens in many courses on ‘Legal Method’.
So how to approach rethinking ‘Legal Method’ as a subject? First, it is important to grasp some basic distinctions, many of which are standard in educational theory: affective/cognitive learning objectives; learning what, learning why, learning how (knowledge, theory, skills); learning about and learning how; intellectual skills, and specific practical techniques; mastering the basics, increasing competence and reinforcing it; learning through direct instruction, by picking it up, by controlled experience, learning by doing and reflecting on it (‘experiential learning’) and so on.
Some of these distinctions are contested or elusive: for example, there is controversy about how far ‘skills’ and ‘knowledge’ can or should be kept apart. As Herbert Simon pointed out in relation to ‘problem-solving’ it ‘must, of course, be taught in the context of a rich environment of problems – mostly but not entirely drawn from the professional field in question – there is no such thing as expertness without knowledge’.50 For me, that is mostly a matter of emphasis and it is important to bear in mind that in law most detailed knowledge is local.
Two of these distinctions relevant to the concept of ‘legal method’ are regularly conflated in legal education discourse. The first is between learning about and learning how. Books on ‘Legal Method’ quite often tell about the doctrine of precedent and the alleged rules of statutory interpretation, but do not encourage students to learn how to use the techniques of precedent in constructing a legal argument or how to read a statute or some particular part of it.51
A second set of distinctions that are sometimes glossed over is between learning the basics of a skill or skill-set, mastering it to a level of competence or excellence and reinforcing it through practice. One can read a manual on driving a car, one can do enough to pass a driving test, but one only becomes an excellent driver by repeated practice, with or without additional formal instruction. Courses on Legal Method and some of the skills courses at the vocational stage are only ‘first steps’ towards mastering the relevant skills. Our culture of legal education and training has, on the whole, not taken the idea of direct advanced skills training very seriously. The Bar in England has instituted post-qualification training in advocacy, but that is a long way behind some of the more specialised courses offered by the American National Institute of Trial Advocacy.
One of the most successful courses I have been involved in has been an access course, which focused only on ‘legal method’ and had no separate substantive law elements.52 By learning how to read and use cases and statutes students in fact mastered many of the basic concepts and principles of Contract, Torts and Criminal Law, because the concrete material concerned these subjects.
In recent debates in England the idea of ‘graduateness’ has become quite fashionable, but it is also contested.53 Insofar as this suggests that all graduates should have learned to read, write, analyse, argue, synthesise and communicate orally and in writing (and I would add have some basic numeracy) the idea of a liberal legal education is consistent with this. There remains a question whether there is anything unique or special about legal materials and about ways of thinking, using and arguing about them. This is a controversial area which can be usefully considered in relation to the topic which is conventionally referred to as ‘legal reasoning’.
Reasoning in legal contexts
For my whole career I have been involved in thinking, reading, teaching and writing about reasoning in legal contexts. Over time this has resulted in broadening my focus in several directions. Starting conventionally with reasoning from authoritative sources (mainly cases and legislation) about disputed questions of domestic law, as they featured in reported cases of judicial decisions, each of these elements was extended gradually to other kinds of texts (e.g. policy documents, trial records), other kinds of questions (e.g. questions of fact, reasoning in sentencing), other kinds of actor (e.g. police, detectives, prosecutors, advocates, parole boards), other kinds of operations related to litigation (e.g. police investigations, settlement out of court, fact-finding, appeals, mental health orders), to non-litigious operations, and to foreign and transnational legal systems, and non-state normative orders. All of these activities and decisions can in principle involve reasoning.
My first step away from tradition was to shift the emphasis from ‘learning about’ to ‘learning how’. In Khartoum I taught students how to read and use reported cases and statutes as part of my course on Introduction to Law. I did something similar in Dar es Salaam, where I also offered an extra-mural course on ‘Clear Thinking’ to the public at large – in fact about a dozen or so anglophone clerks and school teachers. Later in Warwick I offered a similar extra-mural course on ‘Rule-handling’. In teaching I emphasised that practical reasoning in law is not so very different from ordinary ‘common sense’ practical reasoning and that this (especially informal logic) was the best starting point for both extra-mural and law students.
In Belfast the year-long course on ‘Juristic Technique’ gave us an unusually large amount of space to expand the subject. In the early years I interpreted my task fairly conventionally, except that I drew heavily on what I had learned in Chicago from Levi and Llewellyn. Statutory interpretation had been given much less attention than precedent in traditional courses; stimulated by two colleagues – David Miers and Abdul Paliwala – we placed much more emphasis on legislation, including drafting, processes of enactment and finding one’s way around complex statutes.
The idea that there are close similarities and continuities between reasoning in legal contexts and ordinary practical reasoning became a central plank of my approach. It is easy to show that the English doctrine of precedent, the rules about admissibility of evidence, and the rules of statutory interpretation were only a small part of what is involved in arguing about interpreting cases and statutes, questions of fact and so on. For example, the doctrine of precedent is largely permissive, except that lower courts are bound by precedents from higher courts; however, there are several standard techniques for departing from an adverse upper court precedent.54 On the other hand, there are conventions of respect for ‘merely’ persuasive precedents, from lower or cognate courts, and for precedents from some other jurisdictions – but the conventions are vague. In contrast with the anaemic doctrine, Karl Llewellyn constructed from a sample of state appellate cases an illustrative list of sixty-four ‘Available, Impeccable Precedent Techniques’ used by judges in handling prior precedents, both favourable and unfavourable, in justifying their own decisions.55 Here practice is richer, more complex than and greatly outruns doctrine in sophistication and nuanced reasoning. The same applies to reasoning in interpretation of statutes where, except for a few very specific rules, the principles are more like warring ghosts than helpful guides. In short, precedents are more important than the doctrine of precedent; evidence is more important than the Law of Evidence; and handling statutes involves much more than understanding the principles and rules of statutory interpretation, which are not very useful in struggling with a complex statute. The doctrinal aspects may be a part of what is distinctive about legal reasoning and interpretation, but they are not the best place to begin.
It is also easy to show that the importance of such rules in practice is often greatly exaggerated, mainly by the force of the assumption that the best starting point is studying the doctrine. Often, in interpreting a particular provision, after clarification of standpoint, focusing on context or on the original perceived problem is a better next step than identifying the rules. Where the rules appear to be thin or ineffective or ghostly, important questions are worth addressing such as: what would we study if there were no rules – or very few? This line of thinking was developed in relation to the course on Juristic Technique and How to Do Things with Rules (Chapter 11). It was also important in my approach to Evidence (Chapter 14).
In this early development standpoint analysis took on an increasingly important role, as did a total process model of different kinds of litigation or dispute processing. In my teaching two distinctions became especially important. First, I have always emphasised direct learning of skills in contrast to colleagues who suggest that one develops these while learning substantive law. That Pick-it-up view conflates reinforcement and learning the basics. Secondly, the term ‘legal method’ in legal education often conflates learning about and learning how: it is one thing to study about how judges in particular cases or Lord Denning or Justice Cardozo reasoned; it is another to learn the basics of how to reason as judges or advocates do, let alone how to emulate great judges or advocates. An exercise in writing a judgment in the style of Lord Denning may combine the two, but this is asking a lot of beginning law students.56
The bias in traditional legal education, and even some legal-method books, has been on learning about rather than learning how. The main exception is role-playing in traditional moots, where students adopt the roles of advocates arguing ‘moot points’ (i.e. difficult questions of law) before a mock appellate court, sometimes composed of fellow law students or lecturers or even real judges. Moots can be excellent vehicles for preliminary training in appellate advocacy, but in my experience emphasis on etiquette, style of presentation, correct citation of authorities and thinking on one’s feet often dilutes the core element of argument. The correct vocative in addressing judges, dress, body language, procedural matters, finding one’s place in bulky volumes, handling interruptions, and other matters often distract attention from the core intellectual skills of constructing a valid, rational and cogent argument and presenting it persuasively.57
A third major step away from traditional approaches to ‘legal reasoning’ was to ask: in what kinds of operations do lawyers and other actors need to reason? The answer, of course is many. In the Preface to How to Do Things with Rules we summarised one answer as follows:
Those who participate in legal processes and transactions, whether or not they are professionally qualified to practise law, are called upon to perform a variety of tasks. Professional legal practice encompasses such diverse activities as advising on the procedure of a particular course of action, collecting evidence, negotiating, advocacy, other kinds of spokesmanship, drafting statutes, regulations, contracts and other documents, predicting decisions of various types of courts, tribunals and officials, determining questions of fact, making and justifying decisions on questions of law, communicating information about legal rules, or devising improvements in the law.58
This overview of standard activities in which professional lawyers are involved ties up with Irving Rutter’s ‘Jurisprudence of Lawyers’ Operations’.59 The word ‘Jurisprudence’ in Rutter’s title is significant. For the approach also points to a host of theoretical questions, both normative and descriptive. For example: can all these reasonings be subsumed under standard models of practical reasoning? In regard to each standard kind of operation, in what non-trivial respects does ‘best practice’ deviate from ordinary practical reasoning? Are there patterns of reasoning that are generalisable across different operations? For example, does reasoning in negotiation within litigation follow essentially the same pattern at every stage? How does reasoning in negotiation in civil cases differ from reasoning in plea bargaining (approved and not approved)? What are the uses and limitations of cost–benefit analysis in each of these operations? Does the Cautious Solicitor argue in the same way as the Bold Barrister and the Puzzled Judge? Some of these involve explicit reasoning and for all of them the reasons for the decision can in theory be rationally reconstructed.
In UCL in the mid-eighties I devised a module on ‘Reason, Reasoning and Rationality in Legal Contexts’ which was based on this kind of approach, but I was diverted to other matters and only offered it for two years with the result that I never developed it fully.60 One of those diversions is relevant here. This was to focus on how to construct, refine and criticise arguments involving inference from evidence. With Terry Anderson and Dave Schum, I developed this in teaching and writing in courses called ‘Evidence and Proof’ and ‘Analysis of Evidence’. Out of this came our version of ‘Modified Wigmorean Analysis’ (MWA) and a lot of theorising which is discussed in the chapter on Evidence (Chapter 14).61
For many years I have railed against the practice of treating the term ‘legal reasoning’ as being confined to reasoning about questions of law. This complaint has generally fallen on deaf ears, probably because this practice has deep roots in the doctrinal tradition and the quest for finding features that make law unique or special (Chapter 13). For example, some of the most rigorous discussions in Jurisprudence are concerned with whether ‘legal reasoning’ is a subset of moral reasoning or unique in important ways. This can be read as a sharply focused rerun of positivism versus anti-positivism debates. Recently I have completed the first draft of a paper provisionally titled ‘Rethinking “Legal Reasoning”: A Modest Proposal’.62 This is a critique of the practice, suggesting that ‘much of the standard literature is narrowly focused, decontextualised, susceptible to tunnel vision with severe imbalances in the attention accorded to different topics and the relations between them’. On the positive side it argues that focusing on the broader field of ‘Reasoning in Legal Contexts’ opens up new enquiries and some possibly surprising conclusions: for example, that reasoning about disputed questions of law and of fact in adjudication are much more similar than is commonly supposed in respect of structure, the uses of narrative,63 and potentially shared concepts (e.g. relevance, weight, cogency, admissibility, coherence and logical consistency).64
I divided my critique of the traditional literature into two, reflecting the difference between mild and strong versions of legal realism (Chapter 13). The Modest Thesis argued in detail that it is obvious that decisions on questions of law potentially involving reasoning are made by different actors with multiple standpoints in a variety of contexts; that judges, lawyers and other actors also make other kinds of decision that involve a variety of kinds of reasoning; and that these other reasonings and how they relate to each other are jurisprudentially and practically important and have been largely neglected (reasoning from evidence being a partial exception). The Modest Thesis explicitly drew attention to this neglect and suggested some ways in which a broader approach to reasoning in legal contexts might be approached.
Of course, the Modest Thesis is not modest – hence the capitals – because it opens up a huge range of interrelated lines of enquiry. I also suggest that even the Modest Thesis has implications for our understandings of reasoning about questions of law: for example, that texts of such arguments, such as judgments in the Law Reports, take for granted certain conventions and standards governing law reporting; or more specifically, communication between counsel and the Bench may assume some unstated understandings shared by members of a particular legal community. Thus, many explicit legal arguments can only be explained by reference to tacit knowledge of various kinds that need to be brought to the surface; furthermore, much of such knowledge tends to be contextual and local, threatening the generality of bland decontextualised theoretical statements.65 Thus even the Modest Thesis challenges very abstract accounts of ‘legal reasoning’.
Conscious that many scholars wedded to the narrow view of ‘legal reasoning’ are likely to be resistant to even the Modest Thesis, in my preliminary paper I concluded:
[S]tronger versions of the thesis of this paper challenge any suggestion that ‘legal reasoning’ can be understood divorced from any consideration of contextual factors. In short, decontextualised accounts of legal reasoning often distort, mislead, delude or deceive. This paper advances the Modest Thesis, but suggests that stronger versions can mount further powerful challenges to mainstream views of legal reasoning. That is my reply to those who shrug their shoulders and reply: There are of course many interesting questions about other reasonings in legal contexts, as this thesis suggests, but I am only interested in reasoning about questions of law.
This is still work in progress.66
Standpoint and putting texts to the question
This limerick has been my main vehicle for introducing the idea of standpoint. Most students remember it, but not all recall the point, which is mainly to bring out the difference between participants (on the bus) and observers (outside the limerick).67 In teaching Evidence I have used original trial records extensively, especially Edith Thompson’s stream of consciousness love letters, about which one student said: ‘If you can analyse Edith’s prose, you can analyse anything.’ Over many years of teaching in the UCL Law Teachers’ Programme I have only identified two students who claimed to have studied more than one trial record in their primary legal education, only one who had studied a limerick, and none who had analysed love letters. Is this the dead hand of the doctrinal tradition or is it that law teachers do not know how to use such wonderful materials in teaching?68
Broadening out from conventional teaching of ‘legal method’ has already been discussed in relation to the Newspaper Exercise and other materials of law study and more systematically differentiated methods of reading. The skills of reading as an intelligent law student should be added to the idea of ‘thinking like a lawyer’ as part of ‘legal method’. But reading what? Much of orthodox ‘legal method’ teaching has been confined to conventional techniques for reading and using cases and statutes. It has emphasised only two types of text and a limited number of ways of reading them. The typical context was adjudication (not even litigation conceived as a total process) and the assumed standpoint has been that of a judge or a student studying reported cases. But why only two kinds of materials and these limited types of reading?69
Later in the Law Teachers’ Programme at UCL I would ask the class: ‘During your primary legal education, how many of you studied particular specimens of actual wills? Or complex commercial contracts? Or a major corporate merger? Or airline tickets (including the small print)? Or articles of incorporation? Or trial records? Or other formal legal documents?’ The answers were usually none or one or two of one or two. Some had studied novels, films or plays, but were not sure why. Very few perceived newspapers or original documents as potential materials of law study. This, of course, was not a serious survey. But it does suggest some hypotheses for empirical testing in a given jurisdiction at a specified period:
(a) Law teachers rarely, if ever, use materials other than conventional ones (constitutions, treatises, statutes, reported cases, law journal articles) in teaching undergraduates or other primary legal education.
(b) Few law teachers teach systematic approaches to reading law reports for different purposes and from different standpoints; few teach systematic approaches to reading other potential materials of law study.
(c) Almost any text or artefact can be used to further sensible learning objectives for law students, if used reflectively and in a disciplined way.
During the 1980s, I tried to systematise the approach to reading any kind of text relevant to studying law, including cases, statutes, contracts, constitutions, trial records, policy documents, newspapers, and novels. After clarifying standpoint, the core of the approach is to ask three questions: What? Why? How? What is the genre, nature and provenance of this text? What are my objectives in reading it now? What method of reading is appropriate to these objectives? I condensed this into a twelve-page text, called The Reading Law Cookbook. It consists almost entirely of questions. I tried to persuade a publisher to take it, but he pointed out that even puffed out with some pictures it would need to sell thousands of copies to break even. I published it as an Appendix to How to Do Things with Rules, where like most appendices it seems to have passed largely unnoticed. A somewhat longer, wordier book, called Reading Law, is part of my unfinished agenda. I have kept putting off completing this, because I prefer the compactness of the Cookbook. Ability to put texts to the question should be a central part of ‘Legal Method’.
