Sarat, A --- "Law in the Liberal Arts" [2005] LegEdDig 35; (2005) 14(1) Legal Education Digest 3

Review Article: Law in the Liberal Arts, A Sarat, Cornell University Press , 202pp

Dr John Nelson

[1993] LegEdDig 57; (2005) 14(1) Legal Education Digest 3

The purpose of this collection of essays is neatly summarised in the following brief statement on the dustjacket: ‘Should law be left to the lawyers? Is legal education properly understood as technical education? (This book) answers no and suggests that our society is not well served by the current professionalism of legal knowledge. An ideal approach to legal education, in Austin Sarat’s view, would open up law and legal knowledge by making them the proper objects of inquiry in the liberal arts.’

The editor tells us that the book inquires into the situation of legal scholarship in the liberal arts by examining the work now being done by teachers and scholars outside the professional law schools, in order to isolate its promises and possibilities. It aims to assess the place of legal scholarship in the liberal arts by asking whether and how law teaching and research are different in liberal arts settings than they are in the law schools.

Sarat points out that only a handful of liberal arts colleges and universities in the US allow their students to concentrate their studies in areas such as legal studies or law and society. He contends that, as a result, the work of understanding law is generally coupled with the lawyer’s need to grasp how to use law or with the policy-maker’s desire to reform it, impoverishing our ability to see the complex connections of law, culture, and society in all their variety and to relate theorising about law with the humanities and social sciences.

Pointing out the pervasiveness of law in society, he suggests that the study of law invites examination of a wide range of critical questions about persons and the way they live together, raising issues traditionally linked to liberal inquiry. It provides a useful and engaging way to sharpen students’ skills as readers, as interpreters of culture, and as citizens, a knowledge that extends beyond theoretical understanding to civic and moral action. His conclusion is that legal study complements the general education objectives of a liberal arts education.

Nonetheless, it is fair, in his opinion, to ask why study law in the liberal arts when there is a well-developed tradition of legal study in law schools. For Sarat the answer is that legal education has a validity in its own right and naturally emphasises doctrine and teaching students to think like lawyers. In other words, it is treated as a subject for professionals and practitioners who must understand what the law says and how it can be used to serve the interests of clients. As a consequence of this focus on law as a tool, rather than its place in society or its ethical and rhetorical dimensions, law schools largely ignore broader regions of legal knowledge. It is Sarat’s contention that neither our students nor our society is well served when legal education is surrendered to the professional schools.

The book contains contributions from eight scholars, who together seek to chart the work of legal scholarship in the liberal arts, its practices, possibilities and pitfalls.

In ‘Defending liberal education from the law’, Goodman and Silbey articulate a vision of legal scholarship in the liberal arts that differentiates it from the professional school concept and label professional education in law as mere training. They maintain that colleges and universities have avoided the systematic study of law because they fear it would slip easily from education into training, with the outcome that liberal arts students would end up seeing the law as something to be manipulated rather than the subject of an informed critique.

In his essay ‘The liberal arts, legal scholarship and the democratic critique of judicial power’, Bybee also emphasises the antivocationalism of the liberal arts, pointing out that differences between professional education in law and legal scholarship in the liberal arts result from the historical connection between the latter and political life. Legal scholarship should contribute to democracy by helping students cultivate an appreciation of diversity and provide practice in handling disagreements and diversity, thereby instilling in them skills necessary for successful democratic self-government.

Constable in ‘On not leaving law to the lawyers’ focuses on the dangers of law school conceptions of law as too much concerned with techniques, which in turns infuses the notion of law in the liberal arts. She also asserts that legal scholarship in the liberal arts should attend to the discursive work of law and how it tends to tell people what to do. In this sense law is too discursive to be left to lawyers or the social scientists eager to rescue it from them. If we are to engage with law as a moral accomplishment, rather than a social fact, legal scholarship in the liberal arts must attend closely to the way that law speaks.

In his chapter ‘Crossing boundaries: toward an integrated conception of legal scholarship’, the editor acknowledges the importance of Constable’s insight but argues that attending the way law speaks should be part of a broader, integrative conception of legal study in the liberal arts. The heart of the study of law as technique is the separation of law from morality and politics, which is the key to law school efforts to get their students to think like lawyers. The work of legal scholarship in the liberal arts is to reconnect what professional legal education seeks to keep separate.

White engages with the argument about law’s discursive and linguistic qualities for legal scholarship in his chapter ‘Meaning what you say’. His point is that legal scholars, like others in the liberal arts, should be attentive to the quality of writing in the texts they produce as well as in those they read and interpret. They should turn their critical gaze on legal writing, exposing and criticising those who treat law as a set of rules applied more or less routinely to the facts of cases as they arise.

Abramson’s essay ‘Teaching civil liberties as a branch of political theory’ provides one example of how legal scholarship in the liberal arts advances the understanding of law as a moral accomplishment through examining the writings of appellate judges in civil liberty cases. By teasing out the philosophical bases of legal decisions, he believes that legal scholars in the liberal arts can alert students to the richness and complexity of the choices that judges make.

In ‘Romancing the quotation’, Hartog suggests that the title of his chapter provides one particular liberal arts way to gain understanding about law, allied to which is the analysis of the ‘troubled case’. He insists that the humanistic task for those not of the law school world is ‘to reconstruct and play out the meanings and tonalities located in the stories, quotations and anecdotes that offer our primary access to the ways women and men work through and think about their relationships to law.’ (p.163).

Finally, Heinzelman concludes with a caution about the search for a single political meaning or epistemological project for interdisciplinary work in law. She proposes the adoption of a view of law as a moral accomplishment. Pointing to the democracy-enriching qualities of legal scholarship in that liberal arts, celebrating language and good writing and romancing the quotation are all ideas that replicate the regressive claims of earlier men of learning that a complete education implied knowledge of law. Although legal scholarship in the liberal arts may seek to liberate law from the technocrats, it should not fall into an alliance with aristocracy and patriarchy.

As can be gauged from the above precis of the essays contained in this collection, this book adopts a philosophical approach to the notion of the place for the study of law and for legal scholarship in the liberal arts. A range of important different theoretical underpinnings are offered by the contributors. These are largely grounded in their own individual views about the limitations to the way law is taught in law schools, where they claim the emphasis is on law as a mere technique to be manipulated in the interests of clients’ interests, while neglecting its wider social context.

However, while they all recognise the important role for the study of law in the liberal arts, none of the contributors offers practical advice on the design of curriculum and the teaching methods to be adopted, including the way law can be integrated into the study of liberal arts subjects, to overcome the shortcomings they identify. As a consequence, this collection of essays is of decidedly limited utility for law teachers within the liberal arts.