Legal Education
Critical approach to legal study: The phases and fusion(s)
M A Sayeed, Saifuz Zaman
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Photo: employeesscreeningblog |
Sharon Hanson in his book Legal Method and Reasoning once commented that “the study of law is about critiquing the choices made, as well as critiquing the rules themselves.” Law students may, by and large, be familiar with the message contained in the word 'critiquing', particularly when they come to know that legal learning involves 'critical approach,' that is, they must learn law critically. What do we understand by 'critiquing' or approaching critically? Is it a 'state of mind' or a mere process? What does critical approach to legal studies actually require? How should we then approach critically?
There is no doubt that 'central to the task of every study is cultivation of excellent critical thinking.' But how critical thinking process can well be cultivated in the peculiar field of legal study seems still confusing to many students. The confusion arises partly from their failure to comprehend the reasons of such special emphasize in critical learning, and partly from their failure to capture a 'manifestly pursuable angle' in the way of their endeavor.
Through this writing, we will thus try to take this confusion out by attempting to show a general route of how we can apply critical thinking in the process of legal learning. However, in doing so, we will not concentrate on the traditional concern of what materials we should deal with and how we should actually begin in dealing with the same. Our purpose is rather confined to the aim of clarifying what the aspects of critical legal learning are and what they virtually imply.
In the pursuable parlance, the aspect of critical legal learning implies the exercise of a strong intellectual skill or an outstanding outlook in 'thinking about law.' It therefore, necessarily involves the existence of two important dimensions, namely, i)) a careful and curious “state of mind” capable of reflecting, subjecting and comparing the legal learning with our experiences of practice, and ii) a “productive process” affording alternative intellectual ways of understanding the dynamics of law and legal assumptions.
Both the aspects, as identified above, have a coinciding consequence that requires understanding not only the inner dynamics of law but also its deeper ramifications as “foundational to critical legal study.” In other words, the aspects of critical legal learning demand no more than an entry into a holistic approach to the theoretical and practical study of law. At this moment, we will thus attempt to clarify what constitute the contents of this (holistic) legal learning process and what are the phases a “critical learner” should go though for the cultivation of such process.
The first step to develop critical approach relates to the challenge of understanding the peculiar character of legal language. The laws are carried in language, and very often, the language itself (which contains the law) is taken as the law. To be true, it is hardly possible in practice to dismantle a law from the language by which the law itself is expressed. This fact seems to explain why lawyers are usually described as “wordsmith” or why Lord Templeman views lawyering as “trading with the words”.
Since language always becomes the “bare bones” of legal learning, the law students must initially be aware of the technique of overcoming the linguistic difficulties. In terms of legal education, the linguistic difficulties originate both from the feature and from the structure of legal language. The distinctive feature of legal language is that it employs concepts that may not be explicable in terms of everyday definition. As regards the “structural difficulty”, the fact is most commonly addressed with reference to the legislative format of legal language. In practice, it is more likely that the language of law will be found “in an unusual grammatical form, potentially confusing, tediously literal, dense text, exhibiting scant punctuation, [and] liberally prepared with alphabetical and numerical dividers.” (Legal Method and Reasoning, p, 37) Considering the layers of such difficulties, it has been usual to ascribe the importance of excellent language skill for the study of law. But there remains a crucial point, excepting that usual ascription, on which a critical learner must concentrate more.
Being closely allied with political and theological rhetoric, the language of law has the potential for persuasive power. Thus, it is instructive for a critical learner to consider simultaneously such persuasive power for becoming alerted to the influence of figurative language. Practically, this will add an additional phase to the understanding of legal language by requiring the learner to analyze the language carefully for the purpose of reaching into the root of it. This entire process of becoming familiar with legal language can be termed as “legal analysis”, for the analysis of language will ultimately result in the analysis of law.
The outcome of legal analysis is further flourished with an original skill of factual analysis. Coming next to the phase of legal analysis, the aspect of factual analysis requires primarily that the learners of legal text would strive to ascertain the real meaning of the words always being held out as an attainable and sensible goal. More importantly, the promotion of this skill makes the law students accustomed to study law through a method that relies heavily on the acquisition of “argumentative strategies”. To determine the relevance and rationality of law to be applied in particular fact-situations the exercise of such strategy is indispensable.
The necessity of developing argumentative skill to legal enterprise gets momentum in the theoretical orientation of law itself. Long ago, Aristotle defines law as “reason without passion”. This classical view of law as reason [which actually forms the major part of natural law formulation] was clearly indicative to law's assimilation with argument. Moreover, the contemporary philosopher Roland Dworkin's concept of “argumentative attitude” seems to confirm that law is nothing but the argument for best answer. The overwhelming win of positivist's pedigree in the modern law making process results in the disregard of natural law doctrine that deserves law to be found in the reason. Nevertheless, the “domain of reasoning” in relation to legal enterprise has not been diminished altogether.
Being largely dependent on codification, the modern legislative project has to face with some inevitable problem arising out of the relationship between law and language. To be true, the language merely expresses the thoughts that contain the “spirit of law” in words. But the words have their own limitations. Due to the limitation of our linguistic expression, it becomes more likely that the “letter of law” may often fall short of the exact expression of the “spirit of law.” Moreover, by the limits of our language, what Edward Sapir poignantly described as the “limits of our world”, the laws may themselves be shaped, and may thereby be moved to a wrong drive.
Thus at this stage, critical legal learning requires heavy reliance of the role of reasoning. On the way of searching the spirit of laws, the “dispassionate appeal to reason” is necessary, because it helps the learners to go beyond the limits and cultural boundedness of our language. By using the skill of legal reasoning or argumentative strategies, the critical learners need to look for the hidden assumption underlying the face value explanation of the legal text. They must be able to understand the logic and the limits of such logic in relation to the “legal argument.”
We have termed this phase of legal argument as “factual analysis” in order to emphasis that it involves an analysis of facts. However, at this phase, the critical learners will not be confined to analyze the facts only; they will rather set forth their argument to search for the hidden assumption of law to be applied in those particular facts. In this respect, they will actually go for a total logical confrontation which demands a delicate balance of facts, theories and the application of existing rules connected by reasoned comment. By logical confrontation, the learners will thus be able to persuade the validity of adopting the outcome suggested by them.
The writers are studying law at the University of Dhaka.
