Last week I was in Italy for a couple lectures. I love going to Europe for talks. Among other things, it reminds me how cloistered and parochial we are in the American legal academy. It shakes me out of my jurisprudential somnolence. It reminds me that there are other ways of doing things.
This time it reminded me of a small idea–a small idea about a big problem confronting law teaching in America. The big problem (in fact, it’s my candidate for the biggest problem) is the tacit jurisprudence of the classroom—one which is almost never questioned, never discussed, never criticized and thus swallows everything in its path. This tacit jurisprudence is so successful that it never features as a jurisprudence at all, but registers quite simply as “law” itself. This tacit jurisprudence of the classroom is the one that inculcates repeatedly, the idea that judicial opinions, statutes, regs and other such official texts are the repositories of law and that the task of the teacher is to help the students extricate the meaning of these artifacts.
This simple idea (and in part, it is an idea) effectively turns professors into facilitators. Hence, our assigned roles as professors is to facilitate. It is not to profess, it is not to teach what we think matters or is important about our subjects or any such thing. No, our assigned role—what we are called forth to do—is to assist students in accessing “the law” that is found in these official texts–the judicial opinions, statutes, regs. etc. Now, of course, one can have a more rather than a less sophisticated sense of just what can be found in/elicited from these artifacts. And one can variously try to “supplement” them with this or that learning. And this is not nothing. But let’s not kid ourselves. Always the facticity, the gravitas and the presumed authority of the official artifacts will pull the class back to the opinions, statutes, and regs as the true repositories of law. And note here that my beef is not just with overwhelming importance we attach to these particular artifacts. My beef is also that we tend to treat these artifacts as repositories of meaning.
Why do faculty accede so readily? Umpteen reasons. But the one I will give here is that no one—not the students, not the faculty—want to face up in any serious way to the obvious alternative. We have two choices. 1) Either law can be found in/elicited from these official artifacts through the usual exegetical techniques or 2)…… ? Yes, that’s right: Option 2 is currently blank–not fully formed, perhaps not formed at all. It would have to be created. The texts would have to be written. It would require a lot of hard work. You would need a group of people.
Still, hope springs eternal. And so I have to think that Option 2 might appeal to someone. One could hope to find someone who would say: “Look at this law stuff. How cool is this?–there’s virtually nothing here! A lot noise for sure. But very repetitive. And the formalizations–so brittle. It’s awesome. We can really do something with this!”