USA legal education crisis

-- Excerpted fromBerman (USA)"Faith and order", Central Compilation and Translation Press2011Years01Month1Version

Like today's ceremony is an historic event--"Historic"The word has a double meaning. It is a review of the past, there are prospects for the future. As Boston College law school students, staff, students and friends, you come here, there is a part of a new celebrates the group has had a common goal, to celebrate their new. A group has gathered, by building completed the occasion, re commitment, on such occasions, even an outsider can also feel the pride and joy.

This re commitment, is looking to the future, and undertake the past. Some people say, historians is reviewing the past prophets. Similarly, the prophet is to face the future Historian: he is concerned about the new times in which he declared the historical significance. Through the interpretation of the signs of age, he will be the past and the future to separate, which helps us to determine the relative position of the two party.

Therefore, the new building of some important buildings, those human named it for memorial, the choice of name will be revealed by the group selected from the past to the future.

Sorry, I have no opportunity to get acquainted with James·Warren·Smith. I know that he is a man full of wit, beloved teacher. I know he was a social, contributed a lot to the Massachusetts and its legal system. He devoted himself to the law--Both the practice of law, or as an ideological system of law. Finally, he is a very devout Catholics, the occupation career and work by the religious motivation, including teaching.

From James·Warren·Smith, we can get wide inspiration, especially in the major problem solving USA legal education in the past forty years faced, he is the source of our strength. These problems, in my opinion, actually let America legal education crisis.

I said the crisis, is not to say that students are not diligent, also is not to say the law teacher should not be conscientious and do one's best, not qualified faculty, failed to fulfill their responsibility, does not have the ability, or less than ever. As I see it, is engaged in legal practice of professional skills and knowledge,1984The law graduates than any previous is not inferior to a number.

I don't mean the people of this criticism, namely now law students on how to serve the public interest has not been fully taught. Bock (president of Harvard UniversityBok) pointed out, we have to make some educational programs to train future legal practitioners and law makers, to provide legal aid services to the poor, the development of new more modest, more economic way to resolve disputes, explore new fund-raising to improve productivity and eliminate pollution, crime, poverty and other social disorder. Cheng such words. However, these deficiencies is hard to say is USA lawEducationThe real crisis, because in these areas completed when service reform eventually law school, the function is very little.

I said the crisis, is the attitude to the legal crisis, the crisis is legal thought.1984Years of law school teachers' and students' views on the legal nature, its position error, error deep, than previously USA any historical period.

The legal political creed completely conquered our--And it is quite narrow sense of Politics: not Aristotle said the law namely politics means, but more is Marx·Webb and Frankel·Iraq·Lenin.V. I. Lenin) said the law is political, that is the rule significance. Our school is generally believed that, the law is essentially the legislature, including legislators, judges and officials to implement their own policies and things; the law is essentially a social management means; the legal nature of the ruling power in order to realize his own will use practical means, is a tool. Of course, the law is indeed the case, but notAll--LawIn essenceAnd be not so. The popular idea of ignoring such a belief, namely Law rooted in those declared legal person more important things--Law rooted in history, rooted in the moral order of the universe.

Indeed, the law is the political. But the legal and moral. Legal history. The law is not only the power of theMake thingsThe law isGod given. Legislators and judges is in charge of law, but also subject to the rule of law.

In today's American law school, very few people have mentioned, the source of our legal tradition in our ancestors' religious beliefs, including Judaism, including Christian; no one mentioned, in the history of western legal system, all are to be such a belief is formed, all by the law governing, fundamental objective law is to guide people to save. In the13At the beginning of the century, Blackton (Bracton) had said, the king under law, and two under god. At about the same time, the history of the first German law books--"Isaacson," a book that mirror:"God himself is the law, therefore the law is God's precious."If not the purgatory fear, not the last hope, do not form the western legal tradition.

Undeniable, today we are not teaching these historical facts, in one hundred or one hundred and fifty years ago America law school is generally not taught. But at the time, the family and the church to teach us these things. These ideas were considered behoove. They have become a part of popular philosophy. In fact, the whole19Century and20The first ten years of the American, legal major from Blackstone to study law, but he wrote:"At any time and in any country......Dear God......Natural law......Must comply with the law; if no any effective against this; the effective method, all of its effectiveness and authority are directly or indirectly from the."

The self in all one's born days, only to the two people there, USA public philosophy was changed into a secular religion from legal theory, legal theory, from moral theory into politics theory, tool theory, a pragmatic theory from historical theory. Nowadays, people thinks generally, the law is used to achieve specific political goals, a means of economic target and social target. The task of the law is limited, physicochemical, without personal emotional color--Is to get things done, let people to behave a certain way. Rarely listen to reflect the objective justice people talking about the law, is the embodiment of life's fundamental meaning or purpose. Generally, the law to reflect the common understanding of the social for what good things; more commonly, people think, law reflects the legislators somewhat arbitrary will.

Change of public philosophy that legal education background have changed. Even if we even one hundred years ago and sixty years ago, is the same case teaching theory, the same rule, the same, but its connotation has be totally different. For example, Christopher·Columbo·Randall, he19Century70The earliest start collecting about contract case, combined with the lawsuit, recover the debt default claims of compensation and other forms of litigation, formed a set of general principles of contract law. He told the students that his legal science has nothing to do with justice. One of his followers said to the students, if they are interested in justice, you should go to the seminary! But Randall--At least his students, do believe in justice, including the righteousness of God; but he also believes that justice unrelated to the contract. Now is not the same: now if the said contract law and justice, he and his students might even what is justice, justice exists know nothing at all.

Moreover, these changes were very deep. We are still in the use of case, but due to legal generation evolution of the belief has ceased to exist, the principle of precedent cases gradually shaken, the law no longer has the objectivity. They were taught to students, in any case, no matter how decisions can be--The law is the main debate skills. Generally, the judge in the political, economic, stereotypes psychological decided his ruling; legal reasoning is just make out a good case. The theory is known as the"Legal Realism". Since then it has become"Policy Science". In the legal education of contemporary America, this theory in a more rigorous form of widespread, although some people it with some important qualifications, they stressed, due to the so-called"The legal process"The influence of various fields, this theory has inherent limitations of its.

On this point, review the past85The law school survey years, quite afford much food for thought.1900Overview of Harvard law school year called:"The school aims to provide the basic principles of Anglo American law training, such training will pass anywhere in the legal system is engaged in the occupation practice fully prepared."Overview of annual thereafter are repeating the phrase. This sentence refers to the basic principles of Anglo American law, they are after hundreds of years of. Legal history provides can obtain justice transcendence.1930Annual overview (Roscoe·Pound Dean of) more call a spade a spade, it said:"The fundamental purpose of the college, it is to pass on any common law (Common law) areas in the legal occupation ready. The school strives to in accordance with the English common law tradition spirit to the training of law home."But recently it has been deleted. In the20Century70Time until1982Years, we see the following text replace sb:"The school seeks to develop graduates can handle any common law (passCommon lawLegal problems appear somewhere)."Basic principle? The common law tradition?"The common law"(Common lawThe word) didn't end up capital letters with the first form, and in the1983 1984Annual overview, even the words also disappeared Not the least trace was found.

1970Years of Harvard Law School overview says:"Today any law school graduates can not guarantee the teaching occupation career can the application of the law. The school to students in knowledge, analysis ability and comprehend ability to lay a solid foundation, to discharge fully one's duty let them continue to change in the side of the law and the legal system under the circumstances."From here you can see the legal education of contemporary America crisis. We cannot establish a common goal, and can only provide the lawyer"Discharge fully one's duty"The required that"Knowledge, analytical skills and the ability to comprehend"Training. We think, as long as a person is to learn"As a lawyer", can analyze a changing society, a law is always the problem means any other society, an objective moral law and evolution of traditional ideas will be of little social possible.

Legal positivism theory (that is, law is the legislator's will) victory, and opposition theory (including moral theory, namely the law is reason and conscience, and historical theory, that the law is a continuously evolving tradition, politicsAndIn the moralAllPlays an important role in the decline of), let the legal education has lost the direction. Skepticism and relativism is popular. Only a few of the things to be taught believe firmly. Although we still use case as the basic teaching material, but we even stare decisis almost no longer teach. Although we are still in the opening of contract law and tort law basic course of the first year, but many teaching these courses history teacher has spent a lot of time to prove that in fact there is no"Contract Law"And"Tort law".

At the same time, the students in the first year on the old"The common law"(it's relatively recent case)"Basics"After the course, will face many choices. In order to let everyone on actual situation changes have an impression, let me talk about thirty-six years ago I had just become a Harvard Law School faculty at the scene. At that time, the first, the second yearAllThe course is a required course, to the third year at leastA doorRequired course. At that time, there is a thing called"Law"Also, people know what it is! Now, Harvard Law School1983 1984Annual overview lists more than 240 door every kind of courses and seminars--That is to say, is more than 240 different law course and seminar! We've gone beyond legal pragmatism of justice Holmes, go to the extreme of legal pragmatism. Holmes said the law is to predict the court will do what, who think the law is to predict the lawyers will do what. Some evaluation, pragmatism are good in theory, but there is no useful in practice.

I think, the law school curriculum has become incomplete, because of the characteristics of legal tools focus, namely regards law as means, whether it is a means of social control in general, or the implementation of specific policy measures, maintain the authority means, however, the law is only a means not an end in itself. If the law is a political tool, in essence, so in a society without law and what be misfits, also in the law is not what is unique or necessary. The nature of law depends on its serving other purposes. Therefore, law gradually becomes infinite practical solutions to social problems.

In this context, in recent years the emergence of a legal requirements of teaching open completely"Political"Law professors surprising. These critics have called for law school should be dedicated to exposing all legal means at all belong to the nature (and is stultify oneself's), on the other hand, we should be to the tool of current legal system into change rapidly to the egalitarian society. Because in their view,"The legal political"(referred to in the Weber's or Lenin's sense), so some people advocate, within the law school community"To seize power"(according to them), should be open by radical political means. Thus, dominated pragmatism, instrumental and utilitarian jurisprudence theory, is a cluster of nihilism and Utopianism in a revolutionary emerged, paving the way for.

However, if you think American legal education crisis lies in the violent attacks on the liberal system, might be a mistake. In my opinion, the essence of the crisis is not criticism, but that is suffering from criticism of liberalism. For two generations, liberalism has been telling us, the legal nature of practical tools for the implementation of public policy. As a whole, thus becoming the legal process is in fact one of its main aspects. Can say, now is to reap what one has sown.

Obviously, the American legal education problems, including the legal thought of the crisis, is a microcosm of the historical trend. The overall legal structure, evolution of law, legal religious foundation, law of transcendence, the traditional Western beliefs not only gradually disappeared in the law school teachers and students of the mind, in the vast majority of people's consciousness to disappear; moreover, these beliefs are disappearing from the law itself. The law itself becomes more be reduced to fragments, more subjective. The adjustment of the law for a matter of expediency, fresh required for moral. The law pays more attention to immediate results, but the non consistency, continuity. Inoculation of the western legal tradition in the history of soil20Century by erosion, and the western legal tradition itself is going to collapse.

Legal education crisis, part of the reason lies in the economic life complete right of every hue, bureaucracy, socialism is its performance or results. Public all new branches have appeared in the field of tax law, securities law and the administrative law of the numerous. In addition, the fundamental changes that have occurred over the past thirty years, the Constitution also has a great impact on the whole legal. The legal system of center of gravity has shifted, special style of some legal thoughts, legal thinking after centuries of unique, seems to have become obsolete. We have entered the era of collectivism individualism.

If we are in20Century (in many countries) experience is really just an economic revolution, technical revolution, or even just a political revolution, we should be able to adjust our legal system and legal education system to adapt to the new requirements on them, just like that in the past we have done in the revolutionary situation. After America revolution two hundred years ago and the French Revolution, after the English Revolution three hundred and fifty years ago, in the16After the early Lutheran Reformation and the religious reform in Calvin11End of the century12At the beginning of the century Pope Revolution (Gregorian reform), the law will eventually catch up with the pace of change, the science of law, legal education but also to adapt to change. However, our difficulty is bigger than ever. Today we are facing the threat of ingrained legal cynicism, it has already seeped into all strata of the people. It is because of this threat, legal education crisis is so important, so grim.

There is a story. A man hanging out Valley Branch, he could not climb the tree, was unable to support, so he looked up to heaven, and shouted:"Someone above? Help me!"A voice echoed in the canyon:"I'm here. If you believe in God, I can save you."The man shouted:"The letter, the letter, I believe in god. How to do anything."The voice said:"If you believe it, you let go of the branches."The man looked at the canyon probe, and then screamed:"AboveAlsoOthers?"

To rebuild our legal tradition of Ancient Judaism and Christianity, perhaps has not been possible. But the important thing is, we must first recognize that, is the lack of these religious foundation, to the nihilist embrace the utopian belief in forces--This power can overcome liberalism shallow utilitarianism. In particular, the sceptics of the justice seems real, history also meaningful times may also have a bit nostalgic. Anyway, let them shout:"AboveAlsoOthers?"

Secondly, we must let the law of our heritage to complete recovery. We must reorganize the blend in each branch of the law once thought together: including legal positivism, natural law theory and the history of jurisprudence. In my opinion, in order to creative tensions between political and moral reconstruction, especially we should restore the understanding of legal history dimension. If you do not have a strong sense of legitimacy, that we will not realize social justice; if not a comprehensive law to find our law not only originates from the political, also originated from history, human nature and the universe itself, then we will not again formed the strong legal awareness.