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Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system.  It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist.  It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say.  I know what they do because I deal with the consequences every day. 

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power.  But it is the exercise of power itself that should command our attention, not the justifications.  Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it. 

American law professors have long liked to say they teach their students "to think like a lawyer."  Learning to think that way is a matter of internalizing certain assumptions.  The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question.  Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so.  Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions  rest.  

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links.  Many other blogs already do that, far better than I could hope to do.  (Check out these.)  Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine.  I hope to post new pieces several times a week.

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« 412. Most cheering / most nauseating | Main | 410. Translating the euphemisms »
Monday
23Nov2009

411. Sound familiar?

I've had to steel myself to write this post.  It involves more self-revelation than, frankly, I'm altogether comfortable with.  But I must see it through, if you, my reader, are to fully understand what follows. ...  You see, I'm the sort of person who sometimes borrows Teaching Company and Modern Scholar courses from the library and listens to them while driving, walking the dog, even while doing the dishes.

There, I've said it!  It feels good, too.  A sense of relief.  I feel like I can be myself. 

I had to open my heart that way it to explain how it is that I happened to have transcribed this bit from Professor Lawrence Principe's description of instruction at the University of Paris in the 13th century:

Well, what is Scholasticism, really?  Scholasticism is a method.  It's a method for studying any subject, theology, natural philosophy, medicine, whatever you like.  It is based upon not only on Aristotle's writings, Aristotle's Logic in particular, but also upon the format of medieval university instruction. 

The basic unit of the Scholastic method is the question.  The basic format of the writing is the commentary.  So the question and the commentary, these are basic to Scholasticism. 

Now, let's start with the question.  Students at university heard lectures.  But these lectures were supplemented regularly with disputations.  And the disputation is what is so fundamental about Scholastic method. 

It works something like this.  The master formulates a question very carefully, so there's a binary answer to it.  That is to say, it's a yes/no question.  They tend to begin with the question utrum in Latin, "Whether."  So they can be answered yes or no. A very clear answer is possible, in other words. 

The master's question is then answered by one student, called the respondens, or the respondent.  And he gives his answer to the question. 

After he's finished giving his answer, another student gets up, taking the role of the opponens, or opponent, and tries to demolish the argument of the respondens and answer the question in another way. 

After that's over, the floor goes back to the master, who gives as a verus solutio, a true solution, or a resolutio, a resolution, to the question, and then gives his reason for his answer. 

Now, all students had to participate in these kinds of disputations.

In the intervening 800 years, things have changed.  For example, we now call the master a "professor."  And the professor's question is usually called "the issue."  But the issue is still usually formulated as a yes/no question, and it still frequently begins with "whether" (though only rarely utrum).

And while it remains the case that all students must take their turns answering the question before the entire class, nowadays the role of the opponens is taken by the professor him- or herself.  And class generally ends without any kind of resolutio at all, much less a verus solutio.

I've long known that the style of syllogistic argumentation we're taught in law school is Scholastic to the bone.  And accepting as unchallengeable the latest revelation from the Supreme Court is pure Scholasticism, except that the Scholastics reserved their reverence for distinctly higher authorities.  And everyone knows the typical ridiculously bloated legal treatise is Scholastic--that's why we use terms such as "treatise" and "commentary" in the law. 

But while I knew the scholarly methods of 21st century law professors were medieval, I admit I hadn't realized their teaching techniques were old when Aquinas was young.

AuthorJoel Jacobsen | CommentPost a Comment | | |
DateMonday, November 23, 2009 at 08:51PM in ,

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