Jurisprudence | Duncan Kennedy
Duncan Kennedy and the Philosophy of Legal Education
We live in a society comprised of different individuals. Everyone has their personal interests which ideally should not be encroached by others. However, conflict of interest often happens. It needs to be solved by rule of law. Somehow, legal rules and principles are ambiguous and arguable regarding any particular interest. It needs interpretations by considering a lot of issues. However, one might ask, do the judges and lawyers interpret those rules without biasness? Are all the interest groups equal before law? Thus, what law can be respected and applied is important in conflict solving.
As the globalisation is in a fast pace, a lot of new issues has been popped up. People are more aware of their rights. They request more from what had been granted in the law. However, from the perspective of the legal education, do the law students or junior lawyers are competent enough to satisfy the social needs?
This essay will discuss these issues by laying out Kennedy's views on his philosophy of legal education. In line with it, it will discuss whether the students or young lawyers are able to understand the real essence of the law in order to serve the society. Besides, this essay will also examine whether there is real equality in this hierarchical system.
Kennedy and the Critical Legal Studies Movement
Duncan Kennedy born in 1942 at Washington, D.C., and graduated from Yale Law School in 1970 against the political background of Vietnam War, American Civil Rights Movement and political corruption. He became a professor in Harvard Law School in 1971. As a professor, he has also worked along with his colleagues on the issues of internal law school reform. He had further participated in Marx Study group which critically discussed Marx's work on current issues.
In 1977, owing to the widespread activist movements and highly charged political situation and tension, Kennedy and other academics held a conference at the University of Wisconsin. They aimed to gather all academics pursuing a critical approach towards legal study in society according to two sorts of work, which is accessing legal action in terms of broad purposes and developing a general approach that law is an instrument of social, economic and political control. That was the beginning of the Critical Legal Studies (‘CLS') movement.
This movement is an attempt to understand legal doctrine in a new way by understanding it as political. CLS scholars argue that judges were agents of the political process. It is important to analyse how the judges own politics affect them when exercising their vast discretion in law making.
Kennedy and Legal Education
1. Case Study
As part of the CLS movement, most of Kennedy's works were concentrated on legal education because hidden political agendas are pervasive in law schools. He mentions that law school is a training place for those willing to work in the hierarchical corporate welfare state. In 1981, he wrote his famous and authoritative article in this aspect, ‘Legal Education and the Reproduction of Hierarchy' (‘LERH').
These hidden political agendas can be seen in the outcome of case study. Kennedy finds that students are hardly able to grasp the points in hard legal terms and they are in difficulties to respond to their teachers especially when their own personal initial reactions are not to be accepted by their teachers. It is because legal reasoning skills are taught badly and the use of terminology is frequently unintelligible for law students who are still same as other laypersons. As observed by Kennedy, most of the teachers are likely to teach in an authoritarian way based on their objective knowledge. As a result, students hardly understand whether a particular teacher is misrepresenting or distorting the legal thinking and they will end up more dependent on the “legal reasoning” taught by the teachers rather than the policy consideration in the case study. In this regard, in order to get students to have more understandings and to develop manipulative techniques, Kennedy suggests that teachers should have their extreme views through classroom politicization in case study by splitting the conservatives and liberals close from right down to middle as much as possible in the case discussion.
From the observations of Kennedy above, it seems that law should be interpreted in a “legal” sense and should sound “logical”, yet this so called “legal” and “logical” view can only be affirmed by the authorities within the rule of law. In this sense, it reflects that the extent of the application of law in our society is being controlled by a certain class of people. This shows that law indeed is a political expression. All related to it are political exercises. It causes problems due to law teachers who pretend apolitical. As a law student, understanding the real essence of particular rules is important since legal reasoning is different from cases to cases. This requires students to have a great critical mind by considering the situation and the fact of the problem in order to determine whether the rules are still applicable in the present problem. Thus, teachers should not simply draw their personal conclusion based on previous cases and reject the opinion of students. This is far from what is proposed by Bertrand Russell because the development of students in exercising their individual judgment is being threatened by the indoctrination. Indeed, they are lacking skills in developing their critical mind or forming their personal own opinion by recognizing the real authority. It looks like students and teachers have to be more aware on what the society needs and to examine whether a particular law fits the present situation in order to draw a conclusion together in a case study. They can get in touch with the society by having some interactions with the local community instead of having discussion in the classroom. This should be the value expressed by the “humanistic conception” in legal education.
2. Interpreting the Law
Kennedy also points out that there is a great influence of capitalism in interpreting the law. As an expression of class interest, he mentions that judges might deliberately subordinate “justice” to the short run financial interests of the ruling class or in accordance with the “needs” or “structural prerequisites” of a particular “stage of monopoly capitalism”. Moreover, since legal rules and legal concepts constitute capitalism and other interests that operate within it, law is also an aspect of the social totality. It seems like law is everything and people often struggle for power through law.
Thus, as stated by Kennedy, “to understand law is to understand this struggle as an aspect of class struggle and as an aspect of the human struggle to grasp the conditions of social justice”. It seems that in order to solve the conflicts between individuals in society, one has to understand well the struggle between individuals before applying legal rules and principles. However, it is hard to examine the struggle well because it involves different perspective from different people. For example, it is hard to determine what reasonable standard should be used in a particular situation especially in criminal law. Is it to be used objectively or subjectively? In this regard, there is often an indeterminate legal reasoning and it often relates to the process of interpretation. However, as mentioned by Kelman, it is difficult to interpret particular rules in a broader level or find the real substance of the rules because “the dominant legal thought is nothing but some more or less plausible common wisdom banalities, superficialities, and generalities.” Thus, it seems that lawyers or even judges are hardly able to interpret the rules by themselves freely. They are merely restricted to follow existing laws on such occasions. In the situation where all the parties involved are all subject to the same ambiguous rules, it cannot be said that there is equality before law. It is because the application of the law in this circumstances is more favourable to the party that having same condition as the parties in the precedents. Since the ambiguous rules are in dispute, it should not be applied again because it will make the dispute more complicated. Indeed, the ambiguous rules should be subject to review or well examination. The real equality before law can only be achieved when there are clear rules and regulations.
Moreover, in the interpretation of the law, it often involves the marginalisation of other principles or policies that do not fit due to the interests of the powerful groups in the society. It is thus difficult to achieve a fair and just result since a lot of considerations had been omitted. As mentioned by Kennedy, individuals live in a society having relations with family, friends, bureaucrats, cultural figures and the state are hardly to have freedom due to the numberless conformities and self abandonments to others. This is the fundamental contradiction that is pervasive and incompatible to our freedom. Therefore, in drawing a legal reasoning, plenty of issues have to be considered by the judges and it is a test for the lawyers to bring out the intense needs or struggles of their clients. However, owing to most of the judges are being appointed and most of them came from the same educational and social background, it is hard for them to fully understand the struggles of the disadvantaged minority. The situation will even worst if the lawyers cannot understand or lack of awareness to the disadvantaged groups. They will then fail to pass the message from their clients to the judges, and as a result, the issue which may be important to the present case cannot be brought out. Thus, it is no doubt that all individuals are having equality before the law and all of the interest groups are entitled to be represented as the legislations per se, but it is only an illusion due to the reality of the legal system. All in all, it is the matter of the quality of the proceedings that whether the judges and the lawyers can bring out the struggle and analyse it well.
3. Grading System
In addition, the grading system in law schools is another example having great influence of capitalism. Kennedy criticised the grading system in law schools that it is irrelevant to what students will do as lawyers but only makes students put more focus on sitting for examinations and promotes hierarchy especially when they feel incompetent in learning. It seems like this system gives a message to students that only those who possess great result will easily find challenging works and they will have a high standard of living like a majority lawyers.
If law continues to be taught in this way, it is submitted that students will only learn the techniques on how to attempt exam questions instead of solving problems in a real situation at hand. Even if they learn detailed knowledge about law, however, as pointed out by Thompson, the problem is how do they relate and apply this knowledge outside the classroom. They will not understand the real essence of law. Law students are the forces in the development of our legal system of tomorrow. The legal system will not be developed if all the judges or lawyers do not have a critical thinking mind. It is meaningless even if they possess a great result in the law school if they fail to determine whether a particular rule is fit to the present society. Indirectly, society will be in chaos if there are a lot of legal loopholes have been created particularly where there is no designated rule to solve a new problem. Thus, it is important for law students to have a humanistic conception in considering the development of legal system and the society in order to ensure social harmony.
4. Hierarchical Relationships
Besides the teaching problems, as models to students, professors in law schools are another issue in legal education. They give an impression to the students that they are the upper class in the school by hiring colleagues who are as intellectually high up as possible in order to improve the school ranking and secondly, the relationship between secretaries and professors shows students on how a boss treats his staff and vice versa. Thirdly, a majority of the teachers in law schools are white, male and middle class whilst black and women teachers give the impression that they had been assimilated to the majority. It forms an indirect pressure to students that they have to intensely conform to the majority. Students have to follow and adapt to their cultural style. Kennedy describes this oppressive cultural uniformity process as a necessary process in legal training and there is nothing students can do about it.
Apart from that, teacher student relationship shows the model for the relations between judges and lawyers, and between junior associates and senior partners. Students learn how to defer to their teachers in this relationship. According to Kennedy, these relationships reflect the acceptance of hierarchy in real life law practice and legal education is one of the causes for this hierarchy because legal education structures prospective lawyers and trains them to act and think like other lawyers in the system.
On the other hand, Shain comments that Kennedy overestimates the influence of professors since the majority of students do not become law teachers and thus, they do not model themselves after the professors. Furthermore, Shain also states that the deference in law school is different from that which one needs in courts before a judge and the needs for deference to senior lawyers in the job because practice is different from study.
However, having said that, as students are young and lack experience in the real world, there is no doubt that there will be a certain level of professors' influence on the student which may affect how they act and think as a lawyer. Thus, it is submitted that although there is a difference between study and practice, the habit to defer to the seniors is hard to be changed since seniors are having more experience than them. In this regard, student will learn that humane relations are utmost important rather than human need and social justice. As a result, when they come into practice, as junior lawyers, they will only do what had been instructed by their seniors. Junior lawyers are supposed to serve the community rather than particular senior associates in the firm. When these junior lawyers become senior associates, they will transmit the same type of legal education to their juniors and go round and round. At the end of the day, there will be only one type of legal thought controlling the application of law. Then, there is only dogmatic legal thinking remaining in this area. Lawyers will not have the thrust to get a new legal thinking or launch a legal revolution.
Furthermore, the real equality before law is hardly to be achieved since all the students or junior lawyers have conformed to the majority. Although it is quite apparent that there are a number of female and different ethnic students studying in law schools nowadays, given the fact that there are only few numbers of female judges and minority ethnic judges, it gives the impression to public that this area is still being dominated by white men. It should be noted that the law application and law making process is different. There are some female and ethnic minority Members of Parliament who represent their groups in the drafting of a new legislation in Parliament. However, in law application, there is usually only one judge who gives his decision. He has to weigh the arguments carefully and to consider whether there are other important issues which have been omitted by the parties. If the judge gives his decision without considering different cultural values or sexual differences, the judgment will be doubted by the public. Thus, it is hard to convince people that equality of law has been achieved in this regard.
Other than changing the teaching method and attitude in law schools, it is viewed that student have their own responsibility in order to enhance their critical thinking mind. As the process and effect of globalisation is in a very fast pace, legal issues will only get more complicated. Law can and ought to be regarded as a living thing. It keeps developing and changing from time to time. What students learnt in school might not be applicable when they come into practice. If they feel that the skills learnt in school are not enough, they may enhance themselves with other skills by joining socio or community based extra curricular activities. For example, read and do their own research, acquire rationalisation, streetwise and interpersonal skills, imbibe themselves with integrity and a good conscience or other. As Ghandi said, “There is a higher court than the courts of justice and that is the court of conscience. It supersedes all other courts”. Learning the accountability for one's actions and inactions is clearly important. One cannot let one's political affiliations override good thinking and conscience for the betterment of country and society as a whole. It is the individual student's initiative too that is of paramount importance. Thus, their attitude rather than the training in law schools will have a bigger impact on their future job. As long as they keep updating themselves and stay human, they can easily overcome any legal issues in future.
It is submitted that hierarchical influence is still pervasive in our legal system nowadays. No one can avoid it. In law schools, there are professors acting in an authoritarian way. When students come into legal practice, they have to learn from their senior associates and refer to judges. Perhaps, this is the better learning way that must be undergone by a student in order to become an effective lawyer. However, it seems that law is not a fraternity in nature. The legal system is being dominated by a class of people consisting of law professors, senior lawyers and judges. Legal rules in force are made by those social actors that have won in the struggle of power. It will be ideal if judges reconcile their professionalism and integrity with their political loyalty and to be apolitical when they exercise their discretion. Law schools should not just favour in training corporate lawyers. The law seems one sided and does not favour every individual in community but we cannot afford to please everyone and it is long accepted that “the majority rules” so that there is no anarchy by the minority. This is what the law is about and thus, there is no real equality.
However, according to Kennedy, as the law is full of contradictions, only a person getting more sophisticated in law, the more likely he could handle all issues within the field by reducing it into a single dilemma. Thus, getting proper skills as stated above and understanding the law well are crucial to solve problems. Sadly, students lack these. They must not treat law as subjects in examination without considering it in depth.
Law schools must try not to perpetuate the myth of the neutrality of “legal reasoning” that conceals contradictions and conflicts. Teachers should not readily disagree with a student's personal interpretation. They must not teach case study in shallowness by forcing students to accept existing rules without encouraging them to rationalise. What law teachers say must not be treated as “gospels truths” by students. Students are prospects for positive change to the legal system. They should have their own opinion based on the real authority and be ready to assist their teachers. In line with this, they must not fail to appreciate and learn the real essence of the law. These are the values expressed by the “humanistic conception”. Thus, it is submitted that to the extent that law is ruled by the majority only, it is full with dogmatic legal thinking and it is hard to achieve the real equality before law.
Clark, G., ‘A Conversation with Duncan Kennedy' in The Advocate, The Suffolk University Law School Journal, Volume 24, No. 2, 1994, at pp. 56 61
Duncan Kennedy's Biography, available at http://www.duncankennedy.net/biography/index.html. (Acessed 8 April 2009)
Fitzpatrick, P. and Hunt, A., Critical Legal Studies, Oxford: Basil Backwell, 1987
Hare, W., Bertrand Russell on Crtitical Thinking, available at http://www.bu.edu/wcp/Papers/Educ/EducHare.htm (Acessed 12 August 2009)
Kennedy, D., ‘Legal Education and the Reproduction of Hierarchy' in Journal of Legal Education, Volume 32, 1982, at pp. 591 615
Kennedy, D., ‘Politicizing the Classroom' in University of Southern California Review of Law and Women's Studies, Volume 4, 1995, at pp. 81 88
Penner, J. et al., Introduction to Jurisprudence and Legal Theory: Commentary and Materials, London: Oxford University Press, 2005
Riddall, J.G., Jurisprudence, 2nd Edition, London: Oxford University Press, 1999.
Shain, R., Legal Education and Hierarchy: A Reply to Duncan Kennedy, 2000, available at http://www.lsus.edu/la/journals/ideology/contents/shainarticle.htm. (Acessed 8 April 2009)
Ward, I., Introduction to Critical Legal Theory, 2nd Edition, London: Cavendish Publishing, 2004