Legal Education For Democracy

Qualifying Exams: General Field

Legal Education for Democracy: Humanist, Progressive, Critical Juny Montoya University of Illinois at Urbana-Champaign

2 Introduction Be basic school education, be high-school, college, vocational or popular, informal education, it does not matter which school level they work in. Progressist educators have no other way to go that that of coherence between their democratic discourse and their equally democratic practice (Freire, 1996, p. 195). Hoping that my approach would not be simplistic, I would dare to make my starting point quiet simple: To educate democratic citizens we need to build a democratic educational environment. It is clear to me, however, that education for democracy is just one of the aims of educational institutions, and law schools are no exception: subject matter content needs to be covered; thinking, discussing, and problem solving skills need to be developed; professional culture needs to be transmitted, etc. Obviously, and even if our educational aims and means cannot be completely derived from a particular commitment to democratic education, educators for democracy should pay more attention to the relationships in which education takes place to make sure that they are democratic. Those relationships are not just part of the educational “background,” they are central to the education itself: they actually shape and constitute an important part of the educative message beyond our explicit discourse. As Dewey posed it “We never educate directly, but indirectly by means of the environment” (Dewey, 1916). These relations are not necessarily hidden—although many times they appear as hidden in the discussions about the so-called “hidden curriculum”, sometimes they are merely unintentional, the result of our lack of awareness of the complexity of the educative undertaking in which we teachers are just a part, not the most important but certainly not the least relevant (Schrag, 1996). In this paper I want to take a close look to three of the most influential educational ideologies (Eisner, 1996) or theoretical perspectives (Posner, 1995) about the proper goals and means of education. By selecting these three perspectives, I do not attempt to cover the history of education, but to focus on the ones that have had more influence in the articulation of a rationale for democratic education. Regarded as perspectives, they are general visions applicable and historically applied all across formal education, from preschool to graduate studies (Posner, 1995; Toohey, 1999). As ideologies, they are present in concrete educational institutions and in our daily talk about what education is and should be (Eisner, 1996). And they are very

3 much alive in some aspects of current education and legal education practices and institutions. As I will discuss later, these three perspectives express very different views about educational goals and means and support different values, but they share some commitments to a broad and libertarian conception of education. All three are opposed to social efficiency models that visualize schools as factories (input-output, job training), students as clients (consumerism), curricula as “cafeteria” menus (commoditisation) and the whole education system as a supermarket (Apple, 2001). Rational Humanism (Eisner, 1996), has been present in the field of education since the 19th century. It is regarded as “traditional” by competing ideologies. Widely criticized along the 20th century, it has not been abandoned completely in any of the levels of formal education, and it is in my opinion the most pervasive conception in professors’ explicit or implicit idea of what is a university for, even more in the European tradition than in the U. S. Alternatives for university legal education in the 21st century have to understand and to be capable to deal with the ideas already at work as long as rational humanist inspiration and educational ideas are still powerful in many educational institutions. Progressivism is at the center of our discussion because, on the one hand, some of its innovations have been widely incorporated into “traditional” education and, on the other, conservative claims towards a return to an imagined golden age of education are targeted to the idea that all the evil in current education is attributable to the fact that too much progressivism has taken place into formal education. Since this generalization is far from being true (Apple & Beane, 1999) and most of the progressist agenda is still undone, the accusation is either the product of strategic conservative thinking or of plain ignorance about progressivism or perhaps a mixture of both (Apple, 2001). Critical theories—or critical educational studies (Apple & Beane, 1999)—in the neoMarxist tradition, have not been prevalent in education, except for the academy in the 60´s and 70´s. The fact that educational practice has not been substantially altered by critical criticisms is in part critics’ faults—something with which I will deal later—do not take any truth away from them: society’s denial of critical claims does nothing to the criticisms’ relevance, urgency or importance. These three traditions compete with each other and with other openly conservative theories for having the leading voice in shaping the curriculum. The competition between their conflicting goals and means it is not solved through the selection of the preferable,

4 but through a compromising, power-fighting blend resulting in a “potpourri” (Kliebard, 1998, p. 32). The curriculum potpourri, however, is not by far the best possible arrangement: Contradictory goals and means are more prone to result in confusion than in education. A potpourri curriculum is likely to “espouse a broad range of goals but fail to deliver” (Toohey, 1999, p. 67). We are constantly forced to make choices in any social setting, but unfortunately choices are often based on the oversimplification of the alternatives. Here I am not advocating for a kind of “garbage can” eclecticism. It is also impossible that different options sometimes contradicting can be harmonized into one comprehensive theory. Nevertheless, some of the points that these three traditions raise deserve to be considered by themselves and they should not be disregarded in the search for a coherent view. Instead, we should look as educators as a force to address main problems of the current curriculum. I want to show how these different perspectives offer theoretical and pedagogical resources that are useful to think about education in general and legal education in particular. Finally, I am interested in developing a model of legal education for democracy that inherits the best of the traditions here presented. To understand what is the scope of education for democracy requires understanding what concepts of education and of democracy each perspective defends. In the first part of this paper I will explore the concept of education and its elements (purposes, curriculum, pedagogy), and then I will review the concept of democracy in the second part.

5 Three Ideologies Rational humanism, progressivism, and critical studies can be better understood when they are considered along two different dimensions not mutually excluding: as educational ideologies or as theoretical perspectives, rather than as fully articulated theories by themselves (Eisner, 1996; Posner, 1995). Ideologies are “believes about what schools should teach, for what ends, and for what reasons” (Eisner, 1996, p. 302). These beliefs represent political, social, moral, and religious interests of the members of a given social group who support them first emotionally and then rationally (Lamm, 1991). Educational ideologies, like all ideologies, are devices for social control. “They mobilize the people's will to implement a particular way of caring for children favoured by society, and they determine who will learn and what and how much will be learnt” (Lamm, 1991, p. 103). At the same time, these traditions work as theoretical perspectives (Posner, 1995): they articulate psychological, political, philosophical, and other theories into a more or less coherent set of responses to questions such us “How does learning occur and how is it facilitated?” “What objectives are worthwhile and how should they be expressed?” “What kinds of content are most important and how should the content be organized for instruction?” “How should educational progress be evaluated?” “What is and should be the relationship between schools and the society at large?”(p. 46) A terminological caution is required in order to finish this brief introduction. To some extent, rational humanism, progressivism, and critical educational studies can all be considered to be “humanist” as opposed to “functionalist” views of education that reduce educational relationships to input-output processes (Lincoln, 1996). Rational Humanist Education, Curriculum, and Pedagogy Rational Humanism as an educational ideology has its modern roots in the Enlightenment idea that the distinctive feature of human beings is their capacity to exercise reason (Eisner, 1996). Rational humanism provides foundation to the ideal of liberal education. Liberal is usually opposed to vocational, exclusively scientific, or specialist education (Hirst, 1977). In a positive form “A liberal education is one that, determined in scope and content by knowledge itself, is thereby concerned with the development of mind.” (Hirst, 1977, p. 149) Rational humanist education is aimed at cultivating reflection and insight as the basis for reason. At least in the theory, this is done by first providing students with “the very best that humans have written and created” and then by using dialectic and mieutic

6 methods (p. 310). I should stress “in theory” because in practice this view has produced and still produces more memorization of dates and names than critical thinking (Schrag, 1996). What is “the very best that humans have written and created”? The humanist tradition considers that there is a common body of knowledge that identifies an educated person and that it can be defined more or less in a universal way because it represents “the accumulated wisdom of the race” (Harris, quoted by Posner, 1995). However, here the use of the word “race” is not tantamount to “human race”, as history has shown us. Race was actually reduced in this perspective to a Western, white, male and elitist one in the educational development of curricula, materials, and teaching methods. Moreover, during more than a century the traditional curriculum excluded not only the views of women and racial minorities (which would be included only in the last three decades of the 20 th century) but also it was disconnected from the context and actual life experiences of the students, who were just the “recipients” of this heritage. The common core is usually seen as a list of texts, “the great books” of the Western tradition. This idea belongs to the rhetorical tradition of aristocratic Renaissance schools. According to Schrag (1996), they were aimed to cultivate civic leaders “whose combination of eloquence and virtue would enable them to direct society through persuasion rather than force” (p. 271). The conception of knowledge underlying the rhetorical traditions assumes that “the only worthy source of knowledge was found in texts” (p. 272). Thus, curriculum was organized around texts and authors. Humanism takes a perspective of teaching which emphasizes both content transmission and cultivation of students’ reasoning powers. Emphasis on content is usually associated with passive memorizing of facts, reinforced through short-answer and multiple-choice tests (Eisner, 1996, p. 310). These practices are still predominant in schools all over the world and frequently humanism is equated to these practices. The second core of rational humanism is teaching methods with emphasis on the training of reasoning (Eisner, 1996). Students are exposed to the sources of thought to develop their reasoning skills through entering in a critical dialogue with them. The teacher is the director of the educative process and is responsible for getting students to think about what they read (Posner, 1995). Thus, the teacher role is seen as dialectic rather than didactic. “It is intended to enable students to provide reasons for their opinions and to find evidence and counterarguments to the views being expressed”. Thus, for rational

7 humanism methods based on mieutic or Socratic dialogue, discussion, analysis and debate serve better the goal of cultivating reason than memorization does (Eisner, 1996, p. 310). As civilized human beings we are inheritors, neither of an inquiry about ourselves and the world, nor of an accumulating body of information, but of a conversation, begun in the primeval forests and extended and made more articulate in the course of centuries (Oakeshott, 1962, pp. 198-199). The humanist approach to education has deep roots in schools and universities in the European tradition. Although it is regarded by U. S. as too intellectual and entrenched only in some small private elite colleges (Eisner, 1996), it is the generalized image of this tradition which is labelled as “traditional” and opposed by subsequent alternative ideologies (Posner, 1995). In the last twenty years this ideal has regained popularity (Hutchins, 1953; Adler, 1982; Hirsch, 1987) especially in addressing the role of colleges and universities: The university has to stand for something. The practical effects unwillingness to think positively about the contents of a liberal education are, on the one hand, to ensure that all the vulgarities of the world outside the university will flourish within it, and, on the other, to impose a much harsher and more illiberal necessity on the student –the one given by the imperial and imperious demands of the specialized disciplines unfiltered by unifying thought…. (Bloom, 1987, p. 342). Despite its apparent elitism, and one-dimensional approach to knowledge, some theoretical features from rational humanism are worthwhile preserving in defining the aims of education. First, intellectual development is not the only but maybe the most important function of formal education. Too much emphasis on the intellect in detriment of moral, social, affective, aesthetic and other spheres of human development has been proven wrong, but reinforcing an anti-intellectual attitude, already spread in a mass-media driven consumerist society , should not be legitimated by the school or the university. It is not rare to find college students who have never had to read a whole book during her studies or to write more than a 3 pages paper during her undergraduate education (Karabell, 1998). This observation leads me to a second question: Is there something wrong with developing not only good taste but good ideas and good style by reading good books? Surely not, but good books according to whom? One of the functions of teachers is to use their knowledge and experience to select the best readings and the best activities for their

8 students to learn from. The selection “represents what educators believe to be the most timeless, established, and accepted facts, concepts, principles, laws, values, and skills known to human kind”(Posner, 1995, p. 93). The risk too obvious and easy to succumb to, as we have done for centuries, is that educators reproduce stereotypes and discrimination patterns when they classified as good only certain kind of readings. The “best” books have being too white, too male, too Western. A democratic commitment obliges as to be attentive to those factors and counterbalance as long as it is possible our own bias in the selection, but it does not mean “anything goes.” And it does not mean reading is as good as not reading at all. A second legacy to be preserved from rational humanism is the use of mieutic methods of instruction, from which law teaching has developed the case or Socratic method of instruction (Kronman, 2000). Dialogue as a teaching strategy can be used for intellectual as well as for moral development (Sockett, 1996, p. 558). Although dialogue is central to critical pedagogy (Burbules, 1993; Freire, 1968; Shor, 1980), it is also central to rational humanism (Eisner, 1996). The main difference between dialogues under both traditions is that the humanist pedagogy is focused on intellectual development whereas, as we will see later, radical pedagogy holds a more holistic view of human development (Freire, 1968; Shor, 1980). Progressist Education, Curriculum, and Pedagogy During the first half of the 20th century strong progressist criticisms to the “traditional” perspective, frequently equated to rational humanist, made their way into educational thought: Its authoritarian posture was criticized on democratic grounds, its view of children as passive receivers was criticized on psychological grounds, and its view of knowledge as compartmentalized, isolated and static was considered as irrelevant to life (Posner, 1995). Barrow and White (1993) summarised the opposition to “traditional education” listing their negative effects for society: Too many are excluded from the conversation of “mankind”, especially the young people; the conversation is irrelevant to economic needs; the conversation is irrelevant to social needs; and, finally the conversation is directed entirely from within (pp. 57-60). Progressivism tried to be a valid answer to those concerns. Progressivism, as represented in the work of Dewey, is at the origin of the core of the child-centered curriculum (Rugg and Schumacher, 1928, A S Neil, 1960) and the antecedent of curriculum reconceptualists (Grumet, 1988, Pinar, 1988). It is also at the

9 origin of the social reconstructionist approach (Counts 1932), an important antecedent of critical educational studies (Apple, 1982, Giroux, 1989). Dewey (1938) characterizes traditional education as the preparation of the new generations for their future responsibilities, through the transmission of bodies of information, skills, and moral standards developed in the past. In this model, education is preparation for the future whereas textbooks represent the wisdom of the past and the teachers its transmission organs (p. 6). Historically, progressive education developed as a reaction against some features of traditional education such as external imposition of adult standards, subject-matter, and methods upon the young (p. 6), and it is based on the expression and cultivation of individuality, free activity, learning through experience, acquisition of skills and techniques as means of attaining ends which make direct vital appeal, making the most of the opportunities of present life, and acquaintance with a changing world (p. 7). The progressive curriculum is problem-centered rather than subject-centered or text-centered: the teacher provides experience that can be problematized by the children. The problem provides the conditions for using the method of inquiry or experimentation in its resolution. The teacher acts more as a facilitator and resource than as the person in control. This new role requires the educator to select those things within the range of existing experiences that have the promise and potentiality of stimulating new ways of observation and judgment that will expand the area of further experience (Dewey, 1938). According to Dewey (1938), the soundest point in the philosophy of progressive education and its advantage above the traditional one derives from the importance given to the participation of the learner in the formation of the purposes that direct the learning process. In the latest years of his career however, Dewey himself confronted some aspects of what he called “new education”, which he claimed to be a deviation and an exaggeration of the progressive doctrines he really endorsed (Dewey, 1938). He criticized progressist educators for their lack of selection, planning and control over educational activities and for taking child spontaneous caprices as learning “interests.” Counts (1932) criticized the achievements of child-centered education for not being progressive enough. For him, as well as for the others progressists who became social reconstructionists, the great weakness of progressive education was the lack of articulation of a theory of social welfare apart from one of extreme individualism: “To refuse to face the

10 task of the creation of this tradition, is to evade the most crucial, difficult, and important educational responsibility” (p. 263). Counts (1932) synthesizes well the lessons learned from progressivism: focusing attention upon the child, recognizing the importance of the interest of the learner, defending activity at the root of education, conceiving learning in terms of life situations and growth of character, and championing the rights of the child. He added. Critical Education, Curriculum, and Pedagogy Critical educational theory emerged in the US in the hands of inheritors of social reconstructionism as a reaction to the functionalist sociological approaches of the 60's (Gordon, 1991). Articulating Neo-Marxist theory they revealed curriculum as an instrument of social and cultural reproduction (Gramsci, Bernstein, Bordieu), and sometimes as a place for resistance and democratic possibility (Apple, Giroux, Freire). Kincheloe & McLaren (2000) define critical theory as aimed to critical enlightenment –by asking who wins and who looses in power relationships—and to critical emancipation, by exposing the forces that prevent individuals from taking crucial decisions that affect their lives (p. 282). Critical theorists pursue two main aims: to transform our understanding of the social world –which implies the deconstruction of taken for granted understandings and meanings- and to transform its material conditions. Particularly in the field of education a critical approach is oriented toward the aim of producing schools of “democratic possibility” (Kincheloe & McLaren, 2000), and to awake students’ critical consciousness (Freire, 1968). According to Gibson, (1986) critical educators give similar answers to the questions: What is wrong with education? Why and how have those ills arisen? How may they be remedied? The first question critical theory answer with reproduction theories which explain how social inequality is reproduced from generation to generation, and how education contributes to that process; to the second question there are four major answers proposed: the economy, the state, culture, and resistance; on the third question, Gibson criticizes the vagueness and evasiveness of critical theorist over practical proposals about how to achieve the common goal (Gibson, 1986, pp. 44-46). Critical theory claims to offer explanations that link three levels: the personal and interpersonal, the institutional, and the structural. Gibson (1986) called attention to the

11 fact that critical theory had overwhelmingly been concerned with structural, material, ideological, and historical factors: “It is the task of critical theory to make teachers aware of that shaping, aware of the non-naturalness' of their judgements' and hence aware that change is possible (p. 15). Denunciation of the over-determinism of the reproduction process in schools, as seen by Neo-Marxist, will show the way to a second generation of neo-Marxist educators interested in the phenomenon of resistance as a possibility for political and social change (Gordon, 1991). Thus, current re-conceptualizations of human agency would open hope for critical theory to resist determinist perspectives and to create schools where a liberatory pedagogy is possible, educating people for critical empowerment rather than subjugation (Giroux, 1998, quoted by Kincheloe & McLaren, 2000). Regarding curriculum selection and content, critical theory analyses and emphasizes contentiousness: “Its special contribution is to show that many apparently bland and neutral recommendations and descriptions in fact are nothing of the sort. They are

interest-serving,

ideologically-loaded

nostrums,

masquerading

as

consensual

unarguable common sense” (Gibson, 1986, p. 146). An example of this type of disclosure is Apple’s (2001) most recent studies which reveals that beneath initiatives such as charter schools and school vouchers, defended with arguments for free choice, equal opportunity, and an ethics of recognition, what really lies it is the same tendency to submit schools to the logic of free market; a logic that has been reinforced at the end of the 20th century and from which only wealthy groups can profit. Critical theorists insist that technical questions ("how to do it?) should be preceded by fundamental questions like "What is it for?' and "Whose interests are being served?' (Beyer & Apple, 1998). When these questions are posed, instrumental rationality is questioned and “need, rather than profit, social relationships rather than mechanical efficiency, are given priority” (Gibson, 1986, p. 154). Critical pedagogies—political, feminist, anti-racist—share a commitment to develop strategies for consciousness-raising: “to perceive social, political, and economic contradictions, and to take action against the oppressive elements of reality” (Freire, 1995, p. 17). Those strategies take various forms from "reading oneself and the world (Freire, 1973) to "releasing the imagination" (Greene, 1995) Giroux (1983) summarizes the pedagogical assumptions and practices needed to accomplish the emancipatory goal of education as it follows: First, students must be active

12 participants in defining, challenging, and producing knowledge; Second, students need to learn to think critically, to make connections between subject areas and to engage in new kinds of questioning; Third, students are to be enabled to appropriate their own stories into their own systems of meaning; Fourth, students must learn to clarify values, how they are embedded in the texture of human life, and what interests they represent; fifth, students must learn about the structural and ideological forces that influence and restrict their lives (pp. 202-203). Concepts of Democracy The meaning of democracy is ambiguous. And still the force of the word democracy and of its offshoot democratic is so strong in Western societies that reasons, in politics as much as in education, appeals more than often to their democratic character or their contribution to democracy. “Democracy is sometimes identified narrowly with majority rule, and other times broadly to encompass all that is humanly good” (Gutman, 1993, p. 411). Democracy can be used to support movements for civil rights as well as to defend free market and school-choice vouchers (Apple & Beane, 1999, p. 6) or to promote war against foreign countries. Apple and Beane (1999), based on a substantive, participatory, collectivist concept of democracy, argue that despite democratic rhetoric in U. S. society schools are pretty much undemocratic institutions: While democracy emphasizes cooperation among people, too many schools have fostered competition -for grades, for status, for resources, for programmes, and so on. While democracy depends on caring for the common good, too many schools, stimulated by the influence of political agendas imposed form outside, have emphazised an idea of individuality based almost entirely on self-interest. While democracy prizes diversity, too many schools have largely reflected the interests and aspirations of the most powerful groups in this country and ignored those of the less powerful. While schools in a democracy would presumably demonstrate how to achieve equal opportunity for all, too many schools are plagued by structures such as tracking and ability grouping that deny equal opportunity and results to many, particularly the poor, people of colour, and women (pp. 13-14). Humanist Democratic Education “Since in a democracy all who vote rule, all should have the education of rulers” (Hutchins). The humanist tradition entitles a basic democratic commitment: to make

13 individuals equal through the sharing of high quality knowledge and the freedom to make use of their own reason. The proper aim of education is to expand the elite by enabling students regardless of the ability to practice and to be informed by humans' best work (Esiner) Against the charge of defending an elitist concept of knowledge, rational humanism argues that: “If the best work that has been produced is restricted to those now able to decode its meaning—the upper-middle and upper classes—then surely those in the lower socioeconomic classes will be consigned to a second class intellectual status because of the second-rate curriculum that they will be offered. (Eisner)” In practice this is what actually happens. What critical theory has revealed is the connection between academic failure and the forms of cultural capital that are valued in schools (Bourdieu, 1977). Bourdieu has shown that far from being a democratizing force, school curriculum with its bias towards middle-class subjects and language plays an important role in reproducing social inequalities (Gordon, 1991). Progressive Democratic Education Progressive education defines democracy in a more substantial way. Democracy for Dewey is more than a form of government, a form of associated live characterized by pluralism and inclusion (Dewey, 1938, p. 18): A democratic society is one which makes provision for participation in its good of all its members on equal terms, and which secures flexible readjustment of its institutions through interaction of the different forms of associated life. Such a society must have a type of education which gives individuals a personal interest in social relationships and control, and the habits of mind which secure social changes without introducing disorder (Dewey, 1916, p. 105). Dewey is not clear about his idea of democracy. Constructive analyses of the view expressed in this quote would underscore participation, equality and social change. Progressist critics, on the other hand, would underscore the features of adjustment, control, and the rejection to social change able of generating disorder as constrains which will overpower the search for real democracy (Feinberg, 1975, p. 121). In practice, progressists focusing on child-centered education assumed a commitment to an antihierarchical approach to teaching and learning relationships by allowing pupils to actively take part in taking the decisions that affected their educative process but they did not

14 attempt to change the social order or the power relations in capitalist society. The rest of the society relationships were leaved untouched by progressive educators, apart from the criticisms of Counts and the other social reconstructionists. Critical Democratic Education Critical theory places the emphasis in the need for building a “truly” democratic society, meaning that it does not assume that democracy is a state already achieved. By focusing in issues of social injustice; its aim is to produce individuals able to think of a better world: “The task of teachers is to ensure that the structures for which they are responsible foster rather than inhibit democratic attitude and a commitment to social justice” (Gibson, 1986, p. 161). Critical theory shares with progressists the idea that what is taught is at best equal that the environment in which education takes place, if no less important. Dewey (1916) says: “We never educate directly but indirectly by means of the environment” (p. 23). In a similar fashion Gibson (1986) argues: “If the school’s aim is to produce caring, responsible, critical, and informed citizens, the organization of classrooms and schools, and the relationships within them, must embody those qualities and give genuine opportunities for their practice and acquisition” (p. 161). Different Concepts? Can we say that the different educational theories assume different concepts of democracy? In my opinion, there is at least one sense in which humanism is different from progressivism and critical theories: its formal conceptions of democracy as opposed to more substantive concepts of democracy defended by progressists and critics. On the one hand, rational humanism is committed to a concept of democracy that is essentially formal in the sense that it assumes that because we live in a system that is defined as a democracy, we all are already equals. The only differences that humanist education acknowledges are attributable to intellectual differences. Thus, only the individual is to be blamed for academic failure. By ignoring the social, economic, and cultural factors that prevent democracy to be something else than a formal declaration, rational humanism perpetuates social inequalities. On the other hand, progressist and critical educators share a view that is committed to a substantive concept of democracy. They claim for education to be embedded in a set of relationships in which substantive principles such as co-govern, equal opportunity, and

15 participation, take place. Both share the belief that democracy is better learned experientially and both also have attempted to shift the burden for educational failure from the child to the process of schooling itself. There is an important difference, however, to be noticed between the progressive and the critical concepts of democracy. As Feinberg (1975) has noticed, technological and industrial growth were taken as unquestioned facts by progressists. Even Counts, “believed that the dominant social force was technology, and that it was the function of the school to bring other, subordinate forces in harmony with it” (p. 102). Progressists did not perceive any potential conflict between justice and growth. Actually, they championed industrial growth needs over justice demands when issues of equal educational opportunity of blacks and immigrants arose (p. 133). As it can be easily seen, these events cast doubts about the commitment of progressists not only to matters of equal opportunities, but to a concept of democracy concerned with matters of social justice in general. Critical educational studies not only question the legitimacy of the demands that industry and technology pose over society, often revealing the conflict between those economic demands and the ones from social justice, but they also champion the substantive democratic principle over any other consideration. Educational Ideologies and Legal Education Is Professional Education, Education? It seems that the distinction between higher education and basic education is frequently done at the expense of denying a truly educational character to higher education, relegating it to professional training and assuming unhesitantly the fact that university professors are not educators but disciplinary experts, and that their role is to introduce novices in the particular way of thinking of their disciplines. (Menges & Austin, 2001). Barnett (1990) contests the idea of taking HE as synonym of “further education”, defending that additional especial processes take place in HE that are not just “more of what has gone before.” I want to argue first that when higher education assumes a truly educational function, it is not so different from basic education; it is just more specialized and oriented toward higher level thinking processes. Second, it is not clear that college professors do not need to do more of what has been done so far. As Karabell (1998) claims:

16 What truly surprises most first-time professors at most colleges in the US is the number of English-speaking college students who don’t know how to think, read or write (…). College professors know their subject. Emerging from graduate school, however, they don’t know how to teach writing, they don’t know how to teach reading, and they have only a vague sense of how to teach thinking. At most, they usually can teach their students to analyze material the way specialists in the particular subject analyze it (…). (pp. 216219) The characterization I am contesting here reflects a more generalized tendency in recent

bibliography

about

higher

and

professional

education

which

assumes

unproblematically that the especial function of higher and professional education requires from them a full adaptation to the needs of the market and of work places (Boud & Solomon, 2001; Fallows & Steven, 2000; Gaff & Ratcliff, 1997; Losco & Fife, 2000; Menges & Austin, 2001; Neumann, 2001). The educational component is thus removed from the concept of higher education, reducing it to training or preparation for work: It has been described in terms of its role in economic competition… The concept of tertiary education as preparation for employment has become so dominant that the idea that graduates might question the ways in which work is organized and distributed in society sounds unpatriotic (Toohey, 1999, p. 45). Another feature of this dominant view is the claim for professional education to become more practice-oriented. It is important to clarify that the distinction between education and training is not equivalent to the distinction between theoretical and practical education. For practice oriented education to deserve the name, truly educational experiences need to be planned, executed and reflected about (Dewey, 1938). What is the actual content of this claim for practice-oriented education needs to be examined in some detail. Curry and Wergin (1997) define professional education as “a system of formal education that prepares novices for highly skilled occupations through a combination of theory and practice, and that culminates with an award or certification, licensure, or other formal credential” (p. 342). Although professional education emphasizes at the same time both theory and the use of knowledge, Cavanaugh (Cavanaugh, 1993cited by Lynn and Wergin, 1996) explores what he considers being a deep discontinuity between practice and academic needs in professional education. He identifies the influences of academic culture, the dominance of discipline-based discovery

17 research, and the traditional organization of curricula along disciplinary lines as elements responsible for the gap. It seems that the academic tradition of the university impedes a further connection with the world of practice. To fill that gap, Gaff and Ratcliff, (1997) inspired in the work of Schön (1983), propose including the view that “a necessary professional skill is to think about and learn from one’s own practice and the practice of others” (p. 352). Here, the role of professors who are also practitioners needs to be stressed. Professional education takes most of its strength from “expert practitioners,” people who has both theoretical and practical knowledge. But one needs not to be confused about this fact. To use Schön terms, not every practitioner is a reflective practitioner and to learn from the practice of others students requires at the outset professionals who are themselves able of reflecting critically about their own practice. This aspect is particularly critical in legal education in contexts were adjunct faculty is an important component of the faculty and their only academic qualification is the law degree. One of my students recently told me that he received from an adjunct professor the message that what works “out there” is not the knowledge of the law but the manipulation of its gaps. Unfortunately, this is not an isolated incident and many law students are convinced by practitioners and their social environment that ethics is a subject of no use in the world of legal practice and, for the matter, in the world surrounding them. Ethics will be equated to radical utilitarianism at best in this view. Although students are permanently demanding more “practical” knowledge, certainly this is not the kind of “practical” connection that higher education needs to attain with the world of practice. In Defence of the Liberal University Then some questions unavoidably arise: Is the idea of the university as a place for the pursuing of knowledge an outdated one? Are universities irremediably called to be defined in terms of economic production? I want to defend the characterization of the university made by Gutmann (1999), whose arguments about the role that universities play in democratic societies have, in my opinion, the double strength of being rooted in a profound democratic liberal conception of the university and at the same time of being relevant to contemporary societies. Gutmann begins describing universities as sanctuaries for academic freedom and nonrepression and as the gatekeepers of the most socially valued professions. As such, rather than succumbing under market pressures, "universities should be a source of social

18 tension as long as a conflict exists between social standards and social practices" (p. 184) Acting as an educator entails appreciating rather than abolishing the discrepancies between intellectual standards and market practices, since such discrepancies often signal a moral failure of the market rather than an intellectual failure of the university (p. 183) Then Gutmann (1999) goes on reaffirming that universities should be socially responsive, as market ideologues ask for, but she makes an important distinction between "seeking knowledge for the sake of serving society and seeking it for the sake of satisfying a social demand." The distinction "is lost by a university that defines itself as a service station for the rest of society" (p. 188) Gutmann (1999) argues as well that universities aimed to serve democracy should themselves be democratic: "Participation can improve the quality of decisions made by universities in many significant issues, it can be educationally valuable for students, it can make both, faculty and students more committed to the university's educational purposes and more united in their understanding of what those purposes are" (p. 191) Finally, regarding democratic education, Gutmann (1993) argues that although the university is not the place for basic moral education, there is a kind of moral education that university can and should undertake: students can learn "to understand the moral demands of democratic life" by "learning how to think carefully and critically about political problems, to articulate one's views and defend them before people with whom one disagrees (p. 175) At large, "democracies can foster the general freedom of conscious social reproduction within politics by fostering the particular freedom of defending unpopular ideas within universities" (p. 177). Is Legal Education, Education? Legal education has been understood both as a matter of training for the exercising of a profession, on one hand, and as part of the liberal arts and research traditions of the university ideal, on the other (Levine, 1993). Historically, the common law tradition has been more oriented towards the exercise of the profession, whereas the civil law has considered law as a discipline of knowledge and part of the university endeavour for centuries (Le Brun & Johnstone, 1994). The idea of legal education as general education and not just as professional training has been defended on two basis. First, when legal education is offered at the

19 undergraduate level, as it is in most of the countries, the study of law seeks to assist students to grow intellectually and to acquire those cognitive skills and strategies which are more or less common to all highs level disciplines. (Dean Gold, Council of Legal Education, New Zealand, 1987). Undergraduate legal education is seen then as multi-purpose education which not only leads to the practice of law. As a consequence, only a 'building block' of courses which offer both theoretical and methodological foundations is required: If law schools are achieving their objectives, those foundations and the skills of analysis, synthesis, evaluation and the making of judgments are just as important for those engaged in advising and decision making in business and government as for those working directly in the practice of law…. If law is viewed as a muftipurpose degree that is all the more reason for the law programme to allow flexibility to students and above all to resist a narrow focus on the storing up of detailed knowledge of an ever expanding area of law subjects… (Richardson, 1988, p. 115) A second basis to see legal education as general education is to “prepare graduates to face and adapt to change in all aspects of their lives, but especially throughout their legal careers” (Gold, 1987). Even when legal education is conceived at the graduate level and is aimed to prepare for the practice of law, a broad conception of what the practice of law is and the alternatives that a legal career offers gives support to the idea of general education. Finally, a general legal education as opposed to ‘stuffing’ students with the rules in force in every subject area of law is seen as a better preparation for evaluating between social, political, and moral alternatives and to contribute to social betterment: Inevitably many lawyers and judges will at some time be involved in social change and in resolving conflicts between social values. Legal education should prepare for this. It should assist in providing a framework for recognizing, articulating and testing alternatives and for shaping the profession and the law to meet the aspirations and necessities of the times…I firmly believe that, inspired in part by their legal education, lawyers can and should play pivotal roles in expanding a national vision of a free and just society (Richardson, 1988, p. 116). In the US the learning of law has a long tradition of apprenticeship (Stevens, 1983). The triumph of the scholar model over the apprenticeship model is dated around 1870, when Langdell’s developed and imposed, as Harvard’s Dean, the case method as the scientific method for teaching law. He also believed that law, besides being the basis for a

20 profession, was also a science and as such its place was the university, along with the other humanities and social sciences (Ruud, 1992) Despite the triumph of the 'scientific' rhetoric, and the pre-eminence of academics over practitioners, law in U. S. universities has always been practice-oriented, something that is seen as a natural consequence of being offered at the graduate level (Sheppard, 1997). However, only certain field of practice has been championed among others: private law litigation (Kennedy, 1983). Two things need further clarification. The traditional “practical” orientation of the teaching of law refers to the study of doctrine (rules contained in judicial decisions), although it is not fully practical, as far as it is not able or aimed to develop the practical skills and competences that future professionals will actually require in their practice (Christensen & Kift, 2000). Other pedagogic strategies have been developed in the realm of education that play a more determinant role in the developing of practical skills than the teaching of black letter law is able to do (Christensen & Kift, 2000; Cohen et al., 1987; Distlehorst & Barrows, 1982; Fallows & Steven, 2000; Spegel, 1996). Some of these strategies are truly educative, for example, the introduction of legal clinics represents an important advance for reconciling the two goals within the law school (Holland, 1999). Others of the type of law office management courses seem intended to attend students’ worries about not knowing “how to shelve a file in the law office”i. The second clarification is that recent bibliography complains of the opposite, of the pre-eminence of theory in the academy (Glendon, 1994), especially at the top ten law schools (Yale, Harvard, Stanford, and Columbia always among them) where most of the law professors in the country are formed (Balkin & Levinson, 1996). There is some true in that complain, but it ignores the reactive character of this theoretical turn: It is a reaction to the “commonsense” idea that the law is as doctrine portrays it: an autonomous system of principles and deductively derived rules to be applied to particular cases. What the “realists” of the 30’s and 40’s and the “theorists” and “crits” of the last three decades are trying to show is that “law cannot be understood in isolation of the social, economical, and political context that shapes it and is shaped by it” (Kennedy, 1983). Of course, law offices and pre-office students don’t want time to be expended on this kind of considerations. They want them to know what the rules are, and how to manage a law office. Naturally, I do not mean the law school should avoid preparing students for their future practice but I do mean that the best way to do it is not by teaching them “black letter

21 law.” First, it is impossible to cover within 3 or 5 years of study the body of rules relevant to practice (by the way, which kind of practice?) and second, they are in permanent change. The very old argument is that to study law in Texas and to practice it in New York would be impossible if the knowledge of the student were reduced to the rules enforced in Texas. And even in Texas a big deal of those rules would have changed by the time of her bar exam (Stevens, 1983, p. 41). There is a more or less extent agreement on the skills that a law graduate requires to perform her tasks: refined skills of analysis, synthesis, evaluation, and problem-solving; a deep knowledge of the concepts, principles, and theories of law and of its social, economic, and political milieu; and finally, the ability to adapt to changes in all aspects of their careers (Gold, quoted by Richardson, 1988). However, it is much easier to agree on what is needed than in how to attain it. There is no doubt that it is the professional responsibility of the law school to the society to form competent lawyers but this task is not tantamount to produce practitioners trained for the practice into a corporate law office. This task, apart from being of dubious educational significance is, in any case, unattainable, for to which kind of office are future lawyers going to be trained? The corporate firm? The public administration? The court? The non-profit? The academy? Despite the great pressure exercised by attorneys from corporate firms to control the law school curriculum, the legal profession is still highly multifaceted and it is to this great versatility that a general legal education points to. Rational Pedagogy: The Socratic Method As I discussed before, rational humanism places the emphasis both in content and in developing reasoning powers. From those different aims follow different pedagogical models. One is centred in the transmission of information and the other around Socratic dialogues. The need for students to acquire relevant information does not necessarily lead toward lecturing although in practice it usually does. Both models might converge when students acquire information from a written source and then they are questioned by a professor in class. This is the idea underlying the case method for teaching law. In the context of doctrinal logic, the case method, a combination of Socratic dialogue and court decisions study, has been the distinctive feature of U. S. law schools and the most applied method for teaching law in USA since Harvard’s Dean Langdell developed it around 1870 (Stevens, 1983, p. 63). He argued that the case method was the scientific method for teaching law.

22 The theory espoused by Langdell was that the legal system was composed of a logically consistent set of principles that could be best derived through the empirical study of appellate cases and that these principles could then be objectively applied to each new case as it occurred (Hart & Norwood, 1994, p. 77). The instructional idea is that students first read court decisions to particular cases, then extract the rules applied in the case and try to relate them to broad principles that can be applied to new situations. This last part is accomplished in class by a Socratic dialogue conducted by the professor. The essence of the case method as originally developed by Langdell is “to heighten student understanding of the nature of law, not just to train students in the content of the rules” (Sheppard, 1997, p. 593). By providing students with the raw material of law, students were allowed to make their own derivations. Sheppard argues that because Langdell was interested not in imposing a particular view upon the student but in facilitating “a journey of independent discovery”, as dean he chose teachers among able students and not from the ranks of practitioners (Sheppard, 1997, p. 604). The case method still appears as the main alternative to recitation and lecturing from treatises –a practice that is still clearly dominant in European and Latin U. S. law schools, when not the only kind of existing teaching method in a continental law school. Thus, its second purpose was to eradicate professor's monologues as the form of instruction: No longer would the professor deliver to uncritical mutes the essential ideas of cases and their relationship to the topics of the course. Instead, students were to discover the significance of the cases for themselves, to examine, analyze, and critique the cases they read by engaging professors in a colloquy (Shepard, 1997, p. 598). Today, the casebook and the case method dialogue are the dominant tools of the U. S. law school. A 1995 survey suggests that the casebook and the dialogue are overwhelmingly the most popular devices in U. S. law school lecture halls. Of the survey respondents, eighty-six percent use a casebook as the "primary assigned text” (Sheppard, 1997).

23 Interdisciplinary Curriculum: Law and ... Progressists place emphasis on curriculum to be developed from lived experiences as opposed to made up by textbook writers. As long as real experiences do not come compartmentalized in subject matters the progressist curriculum tends to be integrated and interdisciplinary. Interdisciplinary studies in the world of legal education take the form of "law and…" courses: law and society, law and philosophy, law and economics, etc. One main idea underlying “law and…” courses was to give students the opportunity to see that law in books was different from law in reality. Using techniques from other social sciences, the relationships between law and society could be appreciated in a form that law textbooks do not allow. The other idea was to use social sciences to justify the need for certain law reform program (Kennedy). Although “law and…” courses are legacies from progressist approaches present since the first decades of the 20th century in the field of education, the conservative approach dominant in legal education still today see those courses as "accessory" and "peripheral" with respect to the teaching and learning of "real" law (Kennedy) and they are not always offered as part of the law school curriculum. Progressive Pedagogy: Experiential learning Legal Clinic and Problem Learning As we saw it before, progressist pedagogy also emphasizes real experiences as learning activities. Clinical education has been said to be the major innovation in U. S. legal education in the last 50 years (Ruud, 1992). Although it flourished in the 60's in the hands of leftists students and activists interested in offering legal services for the undergo, the idea of offering practical learning in real settings in the form of a clinic was present in legal education since the 30's (Frank, 1933). Today the major emphasis of clinic education is skills training and not social commitment (Aiken, 2001; Holland, 1999). Problem learning offers a different kind of experiential learning in law schools. In general, problem solving pedagogy can be easily traced back to Deweys’ idea of knowledge as linked to problem solving inquiry (Savin-Baden, 2000). In fact, there is a great parallelism between problem learning processes and Dewey’s process of inquiry (Barrows, 1998; Dewey, 1910) As child-centered pedagogy does, problem learning places the student within the context of a real life problem and let him to organize the learning process around the task

24 of finding a solution for it. Another progressist idea that plays an important role in problem learning is lifelong learning. In order to prepare students to adapt themselves for a professional practice that takes place in increasing changing environments, problem learning takes responsibility for enhancing "the abilities of learners to plan and manage their own learning" (Gaff and Ratcliff). From Critical Theory: Democratic participation Democracy is not the realm of critical theory, although in conservative contexts substantive or strong concepts of democracy become radical and critical. The concept of democracy that critical theory offers to think about educational relationships is one of participatory democracy and contains a substantive commitment to social justice. Let us examine briefly the concept of participatory democracy to understand better what critical theory tries to accomplish in education. Participatory democracy claims that democratic societies should offer greater opportunities to citizens to voice their own views and make collective decisions by their own rather than delegate them (p. 415). As a value, participation is viewed both as an essential means to a good society and as an essential part of good life (p. 416). Direct participation is sometimes seen as a nostalgic reminiscence of the forever gone form of government used in the Greek polis and it is certainly not feasible in today large-scale societies as such, but my argument is that representation should be a substitute for direct participation only when direct participation is not possible. In this sense, whenever direct participation is possible—as it is in small institutions, local communities and no doubt the college class—it should be encouraged and pursued. In the field of curriculum, this is the meaning of democracy that Wood (1998) gives to the so many times quoted Dewey’s (1916) definition of democracy as “a mode of associated living, of conjoint communicated experience” (p. 93). According to Wood, a curriculum for democratic empowerment requires adopting a “strong” or “participatory” theory of democracy that rests on direct participation as opposed to representation: “Democracy as a way of living in which we collectively deliberate about our shared problems and prospects” (p. 180). Thus, Wood (1998) defines democratic empowerment as: [B]elieving in the individuals’ right and responsibility to participate publicly; having a sense of political efficacy, that is, the knowledge that one's contribution is important; coming to value the principles of democratic life -equality, community,

25 and liberty; knowing the alternative social arrangements to the status quo exist and are worthwhile; and gaining the requisite intellectual skills to participate in public debate” ( p. 187). This is not to propose, I must insist, that large-scale societies should adopt a model of democracy based on direct participation. Rather my view is in the line of Fraser’s (1993) postbourgeois conception of democracy, in which “internal institutional public spheres could be arenas of both opinion formation and decision making (strong publics)” (p. 25) and at the same time be accountable to their external (weak) publics. If democracy requires the exploration of a variety of relations between strong and weak publics (1993), he existence of strong publics should be fostered wherever and whenever direct participation is possible. How a democratic school does looks like? Based on the study of four schools committed to participatory and substantive democratic ideals, Apple and Beane (1999) offer a characterization which begins with a widespread participation of educators, students, parents and other members of the school community in issues of governance and policy making. The common good, as a substantive component of democracy, is also fostered through cooperation and collaboration. In their description, structural equity is also emphasized as a substantive component of democracy. In democratic schools all the people should have access to all the programs. There is a conscious effort to eliminate tracking, biased testing, and any other access barrier that could be based on race, gender or socioeconomic class. It can be said that the above features constitute the "hidden curriculum" of democratic schools. By "democratizing the structures and processes that define the quality of everyday life", people learn significant lessons about justice, power, dignity, self-esteem, etc. Most complete versions of democratic schools also offer an overt democratic curriculum. According to Apple and Beane (1999), main features of a democratic curriculum are: a wide range of information with the right of varied opinions to be heard; learning to think critically (Who said this? Why? Why should we believe this?); going beyond the "selective tradition" of knowledge which requires the inclusion of students' questions, concerns, and meanings; finally, the knowledge of skills that are required by the gatekeepers. This last component is crucial for resistance to avoid been self-defeating as the work of Willis (1977) has shown. Another important feature of a democratic curriculum

26 is that it is created with the active participation of teachers and that the knowledge that teachers produce (i.e. through action research and local dialogue) is considered a legitimate source of curriculum. What is different from progressive schools? Apple and Beane (1999) answer that the distinctive feature of democratic schools is the connection educators try to build between school conditions and social inequalities outside. Democratic educators are committed to contribute to social justice inside and outside schools (p. 13). As Kohl has explained, the questions critical educators need to ask themselves are: “What small power can we use in working with others to change society? And if we do begin to change society, What will be the role of us as teachers in building a lasing new order?”(Kohl, 1980) quoted by (Giroux, 1983, p. 238). Critical pedagogy: If citizenship education is to be emancipatory, it must begin with the assumption that its major aim is not "to fit" students into the existing society; instead, its primary purpose must be to stimulate their passions, imaginations, and intellects so that the will be moved to challenge the social, political, and economic forces that weight so heavily upon their lives (Giroux, 1983, p. 201). In the following paragraphs I will describe Duncan Kennedy’s (1994) radical strategy of “politicizing the classroom” (Kennedy, 1994), where the study of difficult cases to decide real problems in legal basis are used to provoke a political division in the classroom plays a similar role to Freire’s “consciousness-raising” (conscientizacao). This strategy is aimed to counteract both the perception of law as a political neutral tool and the consequent cynicism that it promotes by raising students’ consciousness about the values and interests that are at stake in doctrinal disputes under the appearance of mere technicalities. Kennedy’s basic idea to force that division is to teach doctrine, property, torts or contracts—courses taken seriously by students and seen by the law school and the students as “politically neutral” and as embodying the core of legal science—using problems that perform three functions. The first is getting students to learn black letter law. As we said before, acquiring the knowledge appreciated by the gatekeepers is an important key for resistance (Apple & Beane, 1999); a second function is showing the gaps and contradictions of black letter law to undermine the doctrinal fiction of law as a perfect logical deductive system; third is to split students politically to face them to the reality of

27 having to take political and moral choices between contrasting possible rules that govern the facts and hence between contrasting solutions (Kennedy, 1994). The ideological strategy itself has three main objectives: First, to offer support to liberal and radical students within the highly conservative environment of the law school; second, to move the liberals to the left, by helping them to realize that remedial solutions are not enough; and third, to "undermine conservative students confidence in the use of dumb ideas"(Kennedy, 1994, p. 87). Although this strategy sounds highly value-laden, and in fact it is, Kennedy tries to be and is a sympathetic teacher to both liberal and conservative students (Stevens, 1983, p. 276). What Kennedy proposes to radical educators is not indoctrination. He takes seriously the ideas that teaching is a political activity, that law is not neutral, that any position is value-laden, and hence, that trying to teach law from no-where is defeating. When students become lawyers they will have to take decisions that are not just technical decisions. He helps them "to learn doctrine and legal argument in the process of defining themselves as political actors in their professional lives" (p. 87) Finally, Kennedy advises all professors to "figure out what your politics are and figure out how your teaching promotes, impedes or has nothing to do with them... it's a radical left strategy, not a liberal strategy, but one that tries to honour the liberal commitment to academic freedom" (p. 88). Are there disempowered students in my class? I used to think that because I teach in an elite private law school in Latin America there were no disempowered students in my classes, apart from the one or two who are at this fancy school thanks to scholarships or to for-diversity programs. Of course, there are lots of disempowered law students outside our school and millions more outside any law school in Colombia, but they are not in my classroom. However, after revisiting Kennedy's "politicizing the classroom" (Kennedy, 1994), suddenly it came to my mind the image of Laura, crying after her presentation in my class of professional responsibility ended. She was upset because her classmates were not able to make a sympathetic connection with the “desplazados” (persons who has been forced to leave their homes because of the internal conflict in Colombia), the suffering of the people in her case. Her fellows were so committed to the protection of property that even one of them justified the view that according to the law in some cases property rights prevail over the right to live when they clash. Although I contested his assertion and chastised him,

28 asking him to revise his legal knowledge about these issues more carefully, after class the person who was crying and being comforted by her two group partners was the student defending the poor. There are disempowered students even in my for-the-elite classes. Anyone who thinks opposite from the governing elitist idea about how things are and should be in social, political and economic issues is disempowered and faces an overwhelming majority of right-wing students who truly believe that things are the best they can be because "not all (people) can be rich" or because "it does not do any difference to help 200 or 300 people". As Kennedy, I do want to be a caring professor for all my students, but I do have a special responsibility with the few “Lauras” at my classes. The role of law Taking as starting point a strong, participatory or radical concept of democracy, the society in which I live is far from democratic. Most of the people in the world live in countries which can hardly call democratic by an outsider, although almost any constitution in the world proclaims its compromise to democratic values. The law plays an important role in preserving the status quo (Kennedy, 1997). Once upon a time activists in the 60’s and 70 studied law to change the world: not anymore (Shaw, 1996). However, I am not completely pessimistic. I do subscribe Kennedy’s belief about the contradictory role of law: “My own admittedly and inevitably political version of the truth of law is that the law is implicated, deeply, in the injustices of the world, while at the same time it is a cultural reservoir of the longing for justice”(Kennedy, 1986, p. 608). After discovering in the first year that law is one thing and justice a different one, most students become cynical about the role of law and about their own responsibilities. Although they understand rightly that law is just a tool in most cases, it is not seen as a tool for achieving justice but to be put to the disposition of the one who can afford to pay for it (Granfield, 1992). I believe that we can and should cultivate in our students the ideal of achieving justice through the law without indoctrinating them. We professors do not have the right to indoctrinate our students with our beliefs. This is a liberal value to be preserved (Kennedy, 1986): The task of the teacher is to serve the students with his knowledge and scientific experience and not to imprint upon them his personal political views… we can force the individual, or at least we can help him, to give himself an account of the ultimate meaning of his own conduct. … Again, I

29 am tempted to say of a teacher who succeeds in this: he stands in the service of 'moral' forces; he fulfils the duty of bringing about self-clarification and a sense of responsibility (Weber, 1948, p. 20). Weber excluded the demagogue and the prophet from the academy (Weber, 1948). I do not believe in neutrality anymore—value-neutral teaching in this system is implicitly biased to the right (Kennedy, 1986, p. 608)—but I do believe in the moral obligation we professors have to restrain ourselves from imposing our views on our students. Can legal education be emancipatory? It is less clear what the CLS’ curriculum proposals are. In general, their substance can be seen in general as a call for a pedagogy of resistance: “Teachers, it would seem, do have an ethical responsibility to do what can be done to help students resist this dehumanizing effect of technocratic learning” (Carrington, 1984, p. 224). “The trade-school mentality, the endless attention to trees at the expense of forests, the alternating grimness and chumminess of focus on the limited task at hand –all these are only a part of what is going on. The other part is ideological training for willing service in the hierarchies of the corporate welfare state (Kennedy, 1992, p. 591). An emancipatory legal education seems extremely difficult to be achieved (Granfield, 1992; Kennedy, 1992) but it might be possible. We need to release our imagination to be able to design a different approach to legal education. Although Kennedy (1992) has made truly imaginative proposals, like to eliminate all kinds of illegitimate hierarchy within law schools, his proposals has not been taken seriously because they are too much imaginative or too much subversive, depending how you look at them (the suppression of hierarchies will include to wipe out the salary differences between lawyers, administrative staff and janitors, for instance). Nevertheless, many of Kennedy’s proposals are provocative and inspirational. They remind me that here as well as in my country “many activists involved in social change movements in the 1960’s and 1970’s went to law school with a conscious desire to use their legal skills to advance progressive change”(Shaw, 1996) and not all of them were co-opted or discouraged then. “No group benefited more than poor people (both urban and rural), who suddenly had lawyers to protect and assert their rights” (Shaw, 1996). Although several forces converged to generate this favourable situation for public law advocacy, we can use tools inherited from humanism, progressivism and critical studies to favour their

30 occurrence again. If only for this, law schools should refrain themselves to give too much weight to the professional pressures over the curriculum and the governance of law schools. Conclusion: Eyes to the Future In this paper, I have tried to identify some clues to overcome the "potpourri" conception of curriculum that is common in current law schools. I have argued that either/or options often arise from disregarding uncritically the alternatives. After delineating their main educational contributions, I have drawn from three educational ideologies those features that should be preserved in the design of an ideal law school curriculum. From rational humanism, the idea of the university law school offers sound arguments to resist the pressure over educational institutions to become "service stations" and to reduce university education to pre-office training. Another legacy from the humanist tradition that should be preserved is the Socratic pedagogy, based on mieutic dialogues between professors and students. Although there are opressive forms of conducting such dialogues, the idea of fostering reasoning powers in law students makes sense and can be worked through in caring ways. From progressivism, I have undescored the interdsciplinary curriculum which in legal education takes the form of "law and x" courses, traditionally considered peripheral as oposed to a core made of doctrinal courses. The other progressist legacy that should be preserved and expanded is experiential learning. In law schools it takes the form of clinical education, moot court and problem methods. Finally, from critical educational studies I take the task and strategies of radical educators committed to the building of more just and democratic societies. This task requires, in the first place, building more democratic classrooms by using radical curriculum and pedagogical strategies. In the second place, critical educators do not stop in the limits of their classrooms; they help in the development of more democratic educational institutions, participating in the shaping of less hierarchical relationships among its members. Finally, critical educators connect their teaching with the world outside. It requires the development of curriculum activities that connect the school with the community. How does a law school curriculum built on these bases should look like? Would it

31 be coherent? Would it be feasible? I do not have the answer to these questions but I do believe this paper offers a rationale to begin the discussion on how to organize the priorities:

general

education?

practical

knowledge?

personal

experience?

social

responsiveness? It is easier to be for all these different goals in theory than to put them at work in a coherent curriculum and maybe the perfect coherent curriculum equals to the narrowest one. Trying to engage other legal and not legal educators in the discussion of what a law school is for? What should be taught? And how should it be taught? Showing which alternatives are still alive and why job-based education may not have all the answers is, to me, a better alternative than the current "potpourri" arrangements (Kliebard, Gorman).

32 References

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Law student intervention in class, 2003, Champaign, UIUC.