An image of the cover of The Evidence Wheel, which lawyers use in the courtroom

A Democratic Self

With respect to education’s telos, Ashwin Prabhu writes that “education as such is viewed by Indian society at large [as] a high-stakes ticket to a livelihood and little else” (p. 190). But Prabhu also observes that this view has been continually rejected by “[t]hinkers spanning both the Eastern and Western worlds, from the Buddha to Rumi to Ramana Maharishi, and from the ancient Greek scholars of Delphi to Jean-Jacques Rousseau to Thoreau”, insofar as they have all exhorted that self-knowledge is central to education: “know thyself”, as the first Delphic maxim would have it (pp. 25-26). I’ve felt the tension between these two poles, and the question for me has repeatedly been, “What are we trying to accomplish with education?”

To unpack this question slightly, when I say ‘we’, I am not sure who I mean. If ‘we’ means “society”, what are the limits of that term: my county, state, country, this world? Or is this ‘we’ more personal and about one’s own goals?

The interpretation of ‘we’ will shape our thinking and priorities in education.

Underlying this question is my concern about whether, in a democracy, people are learning the skills to evaluate political arguments. An educated citizen may vote and have a job but how do they come to support someone with dictatorial tendencies? In a democracy, people must evaluate political speech if they're to achieve democracy’s ends. If not in school, I’m not sure where people will learn the skills that are critical to a thoughtful democracy.

With respect to law school, in the United States, there has historically been a strong emphasis on theory and debate. Indeed, law school is unique because professors frequently employ a questioning technique known as the Socratic Method to draw out a student’s assumptions, expose contradictions, and help guide the student as they gain insight into reasoning and the law, simply by continually asking questions of a student, just as Socrates might in Plato’s dialogue Euthyphro.

This can work quite well, and as a law student, I enjoyed this emphasis on theory and discovery quite a bit, but only in the classes where I was excited about the material and felt fine about the final exam. But there was always a tension, especially in classes where I was less interested in the subject, as I knew the means of examination would be a test that didn’t touch on theory at all, but rather application of cases and statutes to a particular fact pattern. It was then I wanted my professors to simply teach me the blackletter law that is no longer in dispute so I could do well on my test and get out of there.

Further, the focus on theory can be a bit frustrating once one passes the bar. I realized how the traditional US law school education had done a great job at preparing me to be a law professor, and had simultaneously done an exceptionally poor job at preparing me to be an attorney who represents clients, though this is slowly changing.

Law schools have attempted to bridge this gap by offering clinical experiences, where a student will work on real cases with real clients, ideally appearing, under the supervision of a licensed attorney, in court on their client’s behalf. This learning-by-doing is an exercise in encouraging students to learn more than just legal precedents and statutes. They must apply what they have learned. From the perspective of a person in a traditional law school classroom, it is not obvious how to do this. A student may write a brilliant exam response teasing out issues in a fact pattern implicating a case such as International Shoe Co. v. Washington, but what sort of filing does one put it in? What is the filing deadline? How much notice is required? How does one give notice? Civil procedure may touch on this, but it is so abstract and removed from reality.

If one goal of higher education is to make people employable, making these abstract skills ‘real’ through experience would drive home the power of knowledge. Learning precedent upon precedent is no doubt interesting, as is engaging with the court’s rationale. But when one wields, for example, procedure or the rules of evidence to win cases, it puts the entire law school experience into a new light, as one can prevail for one’s client without ever setting foot in the courtroom. Early in my career I was helping an indigent person in a lawsuit for about US$200,000 in alleged student loan debt. Though the exact details would take several paragraphs of legal technicalities to explain, the short of it is that the lawsuit was utterly ridiculous. The plaintiff knew exactly what I was going to argue, had repeatedly put up a pretense that my position on the facts and evidence was irrelevant, but for all the plaintiff’s bluster, they ultimately dismissed the case on the eve of trial knowing they lacked a key document to prove that their case had any merit whatsoever. With the statute of limitations having run during the course of litigation, a single piece of procedural knowledge that I had and my client didn’t was the difference between her losing her case on her own, and her “winning” (though a combination of dismissal and the statute of limitations) with a lawyer’s help.

I can read these sorts of stories all day, but they will never illustrate the power of knowledge as viscerally as experiencing it. To “give [my client] her life back”, as they put it, is the ultimate lesson in showing that I must know all that I can, however mundane or abstract it seems, if I am to give my clients what they deserve, which is their best possible chance at prevailing.

Still the question remains: what is education for? I think most would agree that education should go beyond the exam, with the focus being knowledge of the subject matter that can be applied and used. However, I would go further and say that education should always go beyond understanding of the subject matter, and I think those are some of our best chances to nurture good citizens. If it comes back, in the end, to knowing oneself, then I suggest that developing a democratic self might include an appreciation for the unexciting and banal work of procedure.


Scott is a lawyer by training and lives in California. He likes computers and hiking in the Sierra Nevada and California desert ranges.

21 June 2022

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