Kant and law schools

Some pretty odd coincidence between my current reading, Kant’s On the Relationship between Theory to Practice of Political Right, (for my orals exam, not leisure reading) and this right-on-the-money post by law professor Michael Livingston on the future of law schools.

The notion that there is a gap between theory and practice is older than Kant. But this was the main weapon employed by his critics to attack his absolutist ethics, mainly that it was unrealistic and using Rousseau’s words, “do not take people as they are.” In the realm of contemporary legal academia, a similar battle is taking place. Simply put, critics argue that law schools should be more “real-world” and engage less on idle academic exercise. The proliferation of useless legal scholarship was even the topic of a very amusing essay by Pierre Schlag sometime early this year.

My basic law training is from a jurisdiction where the emphasis is all on the real world effects of law. Hence I don’t think I am just being plain biased when I say that theory has its utility. Generally speaking, an obvious use of theory is that it provides ideals, which although it can be seen as difficult to translate into practice, precisely provides for some horizon to which peoples and institutions can aspire to realize. As a set of general principles, one can deduce concrete rules from it, employing practical judgment according to the circumstances.

But too much emphasis on the real-world causes one to lose sight of the big picture - of a world or framework that can only be imagined by reflective minds. Legal rules and policies cannot be shaped as mere reactions to contemporary events. You have to be not just one or two steps ahead, but a visionary even into the future, even of the kind that will probably never come to pass. But then again, who knows? Prof. Livingston’s emphasis on intellectual creativity is, I think, the most crucial aspect of it. Lawyers are not mostly mere firm associates, and even if a good number of them are, they are not automatons. They are creative and strategic thinkers. They are also policy makers. Whether we like it or not, lawyers are agents of change, in big ways and small. For that, a balance has to be struck somewhere between real-world skills, and abstract theorizing. It doesn’t have to be mutually exclusive. .