New Judges Orientation Session
April 22, 1997
Judicial Education v. Legal Education
Thoughtful observers have long realized that legal education is not adequate judicial education. As a matter of fact, thorough indoctrination in legal thinking can lead judges away from the reality of law as embedded in society. The great modern legal philosopher, Ronald Dworkin, has dubbed judges and lawyers “the interpretive community.” According to Dworkin, law does not happen until the “interpretive moment.” Unfortunately, the texts of our interpretations can become far removed from the reality of the social structure which they supposedly represent. In effect, law, solely in the possession of lawyers and judges can get out of touch with reality. It can serve the needs of the interpretive community rather than the larger community.
Not all modern states think that education to be a lawyer is adequate preparation for the judicial profession. In France, three years of study are required in preparation for judicial office. In Japan, the preparation for Judicial office is a totally different curriculum from the preparation required of lawyers. Our purely legal background, and collegiality with lawyers, suggests that we may be too deeply embedded in the thinking of lawyers and too closely associated with concerns that are peculiar to the profession, such as the economics of law practice. It is our task, separate and apart from that of lawyers and the legal profession, to make certain that law does not depart from the deeply held beliefs, hopes, needs and aspirations of the people as a whole. Only when we are totally committed to this responsibility is the Holmes dictum that law is a reasonable prediction of what a court will do in fact safe in our hands.
Despite the fact that most people recognize that legal education is not adequate judicial education, there is no agreement as to what else is necessary for judges by way of education. Suggestions include everything from anthropology to zoology, and all of those suggestions can be helpful to judges. What are the areas in which judicial education differs from legal education?
Jurisprudence
Jurisprudence is an elective for lawyers but is absolutely essential for judges. It is the foundation of sound policy in the law. As you all know, there is very little emphasis on jurisprudence in legal education. Jurisprudence–the philosophy of law–is generally treated as an elective in law schools and is placed in line behind the practical knowledge required to practice law. This is entirely appropriate for legal education. The goal of legal education is to teach legal thinking. It is not to teach the nature of law.
The schizophrenic division between natural law and legal positivism is deeply imbedded in our legal culture. Our nation was born “on the cusps” of the transition from natural law to legal positivism. The Declaration of Independence, with its assertions about the inalienable rights with which we a created, is pure natural law, while the Preamble to the Constitution, in which “we, the people” declared our intentions, is pure positivism. Attorneys can take a position based on legal positivism one day and a position based on natural law the next–depending on the need of the client.
As for judges, however, jurisprudence cannot be so easily tossed aside. Judges must be firmly grounded in jurisprudence. We must understand the nature of law. Unless we know what we are dealing with, the chances of our dealing with it successfully are slim.
Now, before I say what I am about to say, let me make it clear that I am not suggesting that the function of courts is to “make” policy. But there is enough validity to natural law theory to suggest that there are policies that courts can find and which should direct the decision-making process. One of these policies is that we should carefully recognize the legislature as the primary source of new law and changes in old law. Any other policy plunges the judiciary into a jungle of politics and has an adverse effect on the legitimation of our work.
While legal philosophy may not provide us with cut-and-dry answers all the time, a lack of knowledge of legal philosophy is even more calamitous. We need to know what is meant by the term natural law. We need to know the history and development of the natural law theory. It is also important for us to know the history and development of legal positivism. Natural law and legal positivism have dominated the field of jurisprudence in the Twentieth Century.
But now, as we move into the post-modern world, it is necessary that we as judges extend beyond the debate between natural law and legal positivism. We must come to grips with newer explanations of the behavior that comes under the heading of “law,” and we must understand the reasons for such behavior. Natural law, which grew out of the age of faith, and legal positivism, which came from the period of enlightenment, are probably inadequate in today’s world. Those theories come from the “old schools” of thought. We must consider a new theory which includes the power of narrative, the power of received truth, the consideration of motive, the inadequacy of science, and the similarity of what anthropologists call mythological thinking. This is where judicial education leaves legal education in its wake. One of the basic and fundamental aims of judicial education should be to instill in every judge an adequate knowledge of the nature of law.
Judges must also understand the broad sweep of the development of law and the legal profession. Without minimizing the importance of early legal history, I will use the twentieth century as an example. The twentieth century was ushered in on a note that some scholars refer to as legal activism, although we might think it quite conservative. The U.S. Supreme Court was fond of judicial review and striking down legislation, often on the basis of violation of the right to contract. Often procedural niceties guided the course of litigation. Cases were often decided on the basis of the pleadings.
In a famous speech to the American Bar Association in 1912, Roscoe Pound, future Dean of the Harvard Law School, denounced the preeminence of procedure over substance. That speech may very well have been the beginning point of the fervor for discovery, modern rules of pleading and the other procedural changes that have occurred since then. As you know, we now have notice pleadings.
But those of us who have been around a while realize that the combination of notice pleadings with a general verdict eliminates the necessity for close legal analysis that once was required. It may be that in many instances a used car dealer with a good sense of gab can do about as good a job of litigating as a lawyer. In fact, I had a used car dealer who did an excellent job of advocacy in my court in one case. In our effort to have every case turn on substantive rules of law rather than procedure, we have come to the ironic result that only procedure–and not very good procedure–remains. This result impacts heavily on the ability of the rule of law to govern.
Broad Knowledge of Law
Of course, we judges must still know “the law,” and that is a basic tenet of continuing judicial education. While knowledge of the specific rules of law is not an adequate preparation for judging, it is certainly a prerequisite. But while lawyers can work themselves into a specialty niche, often judges cannot. Our knowledge of the legal system must be quite broad. I’m not at all sure that specialization is even desirable for judges. There is something important about judges who deal with criminal law being exposed to the breakdown of the family in the domestic arena. We need an understanding of the relationship between family breakdown and crime.
Even though the need for an understanding of jurisprudence is the primary factor that distinguishes legal education from judicial education, judges have very practical needs for knowledge of law. From the beginning, a judge should be exposed to an intense review of all areas of substantive and procedural law. That is the purpose of the event in which you are now engaged. The National Judicial College also offers a four-week course in general jurisdiction that provides a good review of the basics of law.
From time to time, judges should receive updates on issues of substantive and procedural law. Whenever new legislation develops, or when there are new developments in the law, judges should be kept up-to-date. Technical proficiency must be maintained at all times.
Beyond the Basics
Beyond the mechanics–the “nuts-and-bolts” of judging–lies other fields with which judges should be familiar. A judge must have a very broad knowledge of culture and must master the thought processes and motive forces that engender human behavior. While a breadth of knowledge is valuable to a lawyer, it is not nearly as essential as for a judge. I want to just mention a few areas here, and then I’ll go into a little more detail with each. Of course, this is not an all-inclusive list; and it would be impossible for me to talk today about all areas of thought with which judges must become familiar. But here’s a few areas for you to consider: (1) cognitive sciences; (2) literature; (3) religion and theology; (4) history; (5) economics; and (6) pluralism.
Now, let me go back and touch on each of these just a little–but keep in mind that this is just the tip of the iceberg, so to speak. Over the years, I have spent several weeks in formal study of each of these topics, not to mention the informal reading that I have done.
Why are Cognitive Sciences important to us? Law is closely related to the cognitive sciences–psychology, sociology, and anthropology. I doubt that anyone can truly understand jurisprudence without a knowledge of these important sciences. We must have a thorough working knowledge of what makes people and society “tick.” It is much better for us to understand these areas the same way that experts do, than for us to make up our own theories. Because of the nature of our work, we will deal with the substance of these sciences, whether we have the knowledge or not.
Why is Literature important to us? The great themes of our culture that enable us to distinguish right from wrong are embedded in the great narratives of literature. The narratives of literature are the “DNA chains” that replicate the culture and maintain the values which sustain the culture. Law is embedded in these narratives. There is a great body of knowledge shared and passed on by the culture which is here when we are born, and will remain alive when we die. Law lives in that realm, and we must attempt to acquire a broad degree of cultural literacy.
Why is Religion and Theology important to us? Law has a common origin with religion and theology, and law has been historically affected by those powerful influences. So, we, as judges, should be well-versed in those subjects. What we as a people believe impacts on our actions. If it doesn’t then it probably is not what we really believe. Separation of church and state is imminently sound. Separation of law from our system of beliefs is unthinkable. Science has no way of authenticating normative force, yet normative force is essential to our corporate existence.
Why is history important to us? Of course, we all know that a working knowledge of history is helpful to an understanding of the legal system. The system has a context, and evolved in historically specific events. We need to know not only how the law has developed through the years, but we should also be aware of some of the reasons why it developed the way it did.
Why do we need to know about economics? Judge Posner, the great guru of law and economics, has suggested that economics is the ghost in the machine that creates the so-called ideals with which the interpretive community of lawyers and judges deal. Every judge should have a basic understanding of the interface between law and economics. Care must be exercised so that the judge does not fall prey to the Posnerian assertion that economics is the predominant force in law. That theory is just as dangerous as communism, which was also based on economic theory. We must come to an understanding that the human motive forces which cause people to do the activities that amount to law are the same forces that create and drive an economic system. Human motive, not economics, drives the system, but there is a great similarity and overlap between the two. One of the most important challenges facing an independent judiciary is appropriate resistance to the domination of economic values.
Why do we need to know about pluralism? First, what do I mean by “pluralism?” When there is pluralism, members of diverse ethnic, racial, religious, or social groups maintain and develop their traditional culture or special interest within the confines of a common civilization. We clearly have pluralism in our culture. Sometimes what I a calling pluralism is called multiculturalism. In our pluralistic world, it is entirely possible for different groups to hold differing visions of reality. These views can be totally disconnected from each other. Do you really believe that when you use the word “justice” you mean exactly the same thing that a preacher or civil rights activist means? Judges must become familiar with significant differences in belief patterns arising along cultural and sub-cultural lines. It is the Tower of Babel problem. The groups talk past each other. For instance, here in Alabama, as well as throughout the south, knowledge of black history and black literature is an essential tool for judges who are attempting to deal with the continuing thorny problems arising from racial differences.
Independent Study: the Goal of Judicial Education
Of course, we cannot achieve education in all these areas–and the others that you could probably add–without commitment and perseverance. We must take it on ourselves to read and study independently. I encourage you to intentionally develop a broad based reading program. Attached to the handout is a broad based bibliography listing books that I have found helpful.
The Alabama Judicial College periodically offers seminars in which we have an opportunity to study together. You should take full advantage of these opportunities. At the annual gatherings, there are usually updates, as well is intensive consideration of special topics. Plan now to attend these sessions, and to fully participate in the certificate program. Let me caution you, however, that the short programs that we can offer are no substitute for independent study, and at best can only point you in the right direction.
There are also occasionally intense treatments of broader topics in more detail, and I think that you will find these courses very beneficial. I’ll mention a few of them here: At the University of Montevallo, we have studied law and literature; at Tuskegee University, we have studied black history and literature. We have had special courses on case management and sentencing. Many of these courses encourage judges to read extensively in the fields under consideration. Reading lists are provided, and the books are made available to the judges. All we have to do in preparation for the programs is find time to sit down and read. I urge you to take advantage of each and every seminar of this type offered by the Judicial College. The programs are stimulating to the mind, and they it give a short break from the every-day court routine.
Be alert for opportunities for study outside the State. I recently responded to an invitation from Kansas University and received full scholarship to attend an Institute on Economics. The invitation went to all Alabama Judges, but as far as I know, I was the only one to respond. I also received a scholarship for an Institute for Faculty Excellence in Judicial Education sponsored by the National Council of Family and Juvenile Court Judges. Often by being alert you can take advantage of these opportunities. I think it becomes easier, once you have displayed a genuine interest in judicial education.
Sound judicial education is probably the only way out of some of the difficulties now confronting us as judges, and confronting the society that we serve. We should set the pace. Education is the way to personal growth, and there is no more exciting or rewarding experience than the profession that we share. The burdens of the office can be heavy, but a sound understanding of what we are trying to accomplish, and the ways and means to do it provides deeply meaningful experience.
Yes, judicial education is different from legal education. Judicial education is much more complex than legal education. We must realize that a thorough knowledge of jurisprudence, as well as a thorough knowledge of practical applications, is essential to us. We are concerned about our image. A positive image can only occur if we know what we are doing. Thorough knowledge of jurisprudence will not only strengthen our ability to perform the duties of our office. It will enable us to maintain the image that is essential to the authority of the office. The job is not nearly as difficult and frustrating if we know what we are doing.
Example: Case Management
You will be exposed to theories of case management during the course of this training. Case management presents a good opportunity to demonstrate the force of critical thinking. Case management does not necessarily mean trying cases. There’s more than one way to manage cases. There are principles that you can master that will help you to dispose of cases rapidly and efficiently. The emphasis on case management often uses the term reducing delay, or words of similar import. Speed is assumed to be important. Justice delayed is justice denied, and all that stuff. The people here will tell you how important that is, and we tend to measure success for the courts in those terms. I am a firm believer in case management, and feel that we should intentionally control the flow of cases in the courts. But what do you think would happen if, today, we completely cleared the dockets of our courts of all the existing cases? Before the Clerk’s Offices open tomorrow, attorneys will be preparing the necessary paperwork to file more cases; and before we know it, our dockets are over-flowing again! They would have to do this to stay in business. Case management that ignores the economics of law practice misses a very central point.
Don’t dismiss Judge Posner too quickly. Case management is impacted by what I like to call the economics of law practice. We are not merely managing the day-to-day operations of a bureaucracy; we are managing the rules that provide the basic framework for our society. So, economics is an area in which we need to gain as much knowledge as we possibly can.
Closing Summary
In summary, let me say that judicial education should include the following:
l To make certain that each new judge is fully and adequately informed on the substantive and procedural principles of law;
l To inculcate within the judge a working proficiency in broader areas of knowledge, such as the social sciences, economics, philosophy, religion, history (including black history), and literature;
l To emphasize the importance of the development of an understanding of the philosophy of law;
l To provide special programs to keep judges advised of major changes and developments in law–such as new procedural or evidence rules, or new legislation.
I hope that you will find your role as judge deeply rewarding. I believe that a commitment to Judicial Education will enhance that possibility.
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