Fall 2004/ Fall 2005/Fall 2006
William R. Long, M. Div., Ph. D., J. D.
*Go here for the 2005 syllabus and first assignment. Here is the 2006 syllabus.
This (August 2006) is the fourth time I have taught this course. There is no agreed-upon method for teaching Jurisprudence in American law schools. Douglas Patterson, a contemporary jurisprude, mentions in his foreward to his 2003 Blackwell's Anthology collection of edited essays that there is no canon of jurisprudential works at present for American lawyers/law students. He is trying to shape that canon no doubt in his work. But his admission also emboldens others (i.e., me) with different jurisprudential visions to develop and refine courses that capture that vision.
To that end, my course is informed by four basic methodological considerations.
First, it is historically oriented. We begin with primary source reading from the Greeks. A few times ago I taught the class we read the Antigone and reflected on the tension between loyalty to family and loyalty to the law of the state. Last time we read closely Books I-IV of Plato's Republic. I could imagine a course where we might even venture into Plato's Laws, Aristotle's Nicomachean Ethics or even something of Cicero. In fact, I am doing something like this in Fall 2006. We also spend time reading St. Thomas Aquinas' Treatise on Law from the Summa. We read sections of Blackstone and Bentham (I choose the latter because he is a more scintillating intellect than Austin and it helps make the contrast between natural law and positivism more "personal" --i.e., Bentham against Blackstone). The purpose of my historical orientation is to show the way that the natural law/positivism contrast and conflict has roots that go back hundreds of years. I tend to look at our age historically also. That is, I try to understand current jurisprudes as reacting to someone, trying to come up with concepts that reflect their own struggle to understand, putting them into a "framework" that helps explain their work.
New Past Voices
Second, I am committed to bringing in new voices from the past who are often overlooked/ignored in shaping and understanding jurisprudence for today. For example, one of the popular whipping boys of the American legal realists is "formalism," called "conceptualism" by Roscoe Pound. The fulminations against "formalism" are so extreme that it makes me kind of wonder what bothered the realists so much. I have also seen how more current criticisms of "formalism" uncritically adopted the language of the realists without knowing a whit about the depths or details of the so-called "formalist" world which they are caricaturing. Thus, I needed to spend time on CC Langdell and the development of the casebook method in order to try to limn what is meant by "formalism." Once you dig beneath the surface of terms that jurisprudes so easily and irresponsibly throw around, you find that they are emotion-laden terms that often have very little to do with the person they are trying to attack or the movement they attempt to define. I have also tried to "rediscover" David Dudley Field and the Code Pleading Movement in American law. Believing that the collapse of law and equity first begun under the 1848 code is a moment of signal importance in American law, I try to understand that process better.
Third, I am very committed to the present. That is, the purpose of the historical study and patient combing through primary texts of hundreds or thousands of years ago is to set up the students to understand and contribute in the midst of the cacophony of voices today. To that end, I spend a lot of time making sure that the basic terminology of a scholar is presented and understood. I have stressed that students need to know three things about the contemporary scholars (those who have written from 1960-present). (1) They need to be able to define what each scholar is reacting against or trying to refine. It takes a lot of effort to "take up the pen" and write articles or a book. Something must move a person to want to do this. What is it? (2) Students must be able to trace the history of a scholar's works and see how he/she develops over time. That is, the Ronald Dworkin of "Hard Cases" is not the same person as the Dworkin of Taking Rights Seriously or Law's Empire. Look for ways that scholarly thinking evolves, changes, is refined. (3) Students should identify terminology that is seemingly most important to the scholar being considered and then seek to define very precisely what is meant by the term/s. Language and thought is often terribly imprecise and, in many cases I don't think that much communication ever takes place between and among people, so it is valuable to spend time trying to sort out language. This is especially true with the postmodern thinkers.
Fourth, and finally, I am deeply committed to participatory learning. For the first time in my academic career, I have made active use of the Internet a factor in actual classroom learning (We have had three "Internet" days in class). I think this has been a helpful experience; it leaves the responsibility of learning where it should be (on the students) and it gives an opportunity to focus on things that interest the student. Learning only happens, ultimately, if the student is able to place things learned into their own intellectual framework or explanatory paradigm. Internet learning on selected topics allows this to happen. In order for this to work, however, topics have to be chosen carefully and students given a chance to read, write and then present ideas orally. In addition, I require each student to give more formal presentations of their ideas through either a fifteen minute lecture/discussion or a series of responses to other student papers. Law is about words and persuasion through ideas. As I have often told my students...if you aren't comfortable with speaking to a group of people or articulating your thoughts orally, become a dentist. There is a crying need in the world for sensitive dentists.
[Composed November 14, 2004; revised August 20, 2005 and August 21, 2006.]
Copyright © 2004-2007 William R. Long