Law schools are intensely political places. 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 the ideological training for willing service in the hierarchies of the corporate, welfare state.
 
To say that law school is political is to say that what teachers teach along with basic skills about what law is and how it works is wrong, is nonsense; that the message about the nature of legal competence, and its distribution among students, is wrong, is nonsense; that the ideas about the possibilities of life as a lawyer that students pick up from legal education are wrong, are nonsense. But it is all nonsense with a tilt; it is biased and motivated nonsense, rather than random error. It is nonsense which says that it is natural, efficient and fair for law firms, the legal profession as a whole, and the society that the legal profession services to be organised in their actual patterns of hierarchy and domination.
 
Because most law students believe what they are told, explicitly and implicitly, about the world they are entering, they behave in ways that fulfil the prophecies the system makes about them and about that world. This is the link that completes the system: students do more than accept the way things are, and ideology does more than damp opposition. Students act affirmatively within the channels cut for them, cutting them deeper, giving the whole a patina of consent and weaving complicity into everyone's life story.
 

The First-year Experience

Law students are usually ambivalent on entering law school. They enter thinking that being a lawyer means doing a highly respectable and highly paid job, but also that it is something more than that, something somehow connected to social justice. They also think of law school as extremely competitive, as a place where one needs a tough, hard working, smart style. They enter Law school with a sense that they will develop that side of themselves. Even if they disapprove, on principle, of that side of themselves, they have had other experiences in which it turned out that they wanted and liked aspects of themselves that on principle they disapproved of. The initial classroom experience sustains rather than dissipates this ambivalence.
 
The teachers are overwhelmingly white, male and deadeningly straight and middle class in manner. The classroom is hierarchical with a vengeance, with the teacher receiving a degree of deference and arousing a degree of fear reminiscent of the sixth form. But the sense of autonomy you had there is gone. In its place is a demand that you master a new language, and a new way of thinking at which the teachers supposedly excel, and which they use, occasionally or frequently, directly or indirectly, with intention or haphazardly, in both lectures and seminars, to engender a feeling of subordination and of hierarchy. It is humiliating to be frightened and unsure of yourself especially when what renders you unsure is a lecture or seminar arrangement that suggests at once the patriarchal family and a Kafka like riddle state.
 
The law school classroom is culturally reactionary.
 
But it is also engaging. You are learning a new language and it is possible to learn it. Pseudo-participation makes one intensely aware of how everyone else is doing, providing endless bases for comparison. The teachers offer subtle encouragement as well as not-so-subtle reasons for alarm. Performance is on one's mind, adrenalin flows, success has nightly and daily meaning.
 
It quickly emerges that neither the students nor the faculty are as homogeneous as they first appeared. Some teachers are more authoritarian than others; some students accept while others react with horror to the infantilisation of the first days or weeks. There even seems to be a connection between classroom manner and substantive views, with the 'softer' teachers seeming to be more 'liberal'; more sympathetic perhaps to plaintiffs in tort cases, more willing to hear what are called policy arguments, as well as less intimidating in class discussion. But there is a disturbing aspect to this process of differentiation: in most law schools it turns out that the tougher, less policy-orientated teachers are the more popular. The 'softies' seem to get less across. They let things wander and one begins to worry that their niceness is at the expense of a metaphysical quality called 'rigour', thought to be essential to success in exams and in practice. Ambivalence reasserts itself.
 
There is an intellectual experience that somewhat corresponds to the emotional one: the gradual revelation that there is no purchase for left or even committed liberal thinking on any part of the smooth surface of legal education. The issue in the classroom is not left against right, but pedagogical conservatism against moderate, disintegrated liberalism. No teacher is likely to present a model of either left pedagogy or vital left theoretical enterprise, though some are likely to be vaguely sympathetic to progressive causes, and some may even be moonlighting as left lawyers. Students are struggling for cognitive mastery and against the sneaking depression of the pre-professional, The intellectual content of the law seems to consist of learning rules - what they are, why they have to be the way they are - while cheering the occasional judge who seems willing to make them marginally more humane. The basic experience is of double surrender: to a passivising classroom experience and to a passive attitude toward the content of the legal system.
 
The first step toward this sense of the irrelevance of liberal or left thinking is the opposition in the first-year curriculum between the technical, boring, difficult, obscure legal case and the occasional case with outrageous facts and a piggish judicial opinion endorsing or tolerating the outrage. The first kind of case - call it a cold case - is a challenge to interest, understanding, even to wakefulness .It can be any subject, so long as it is of no political or moral or emotional significance. Just to understand what happened and what's being said about it, you have to learn a lot of new terms, a little potted legal history, and a lot of rules, none of which is carefully explained by the casebook or the teacher. It is difficult to figure out whether you have grasped it, and difficult to anticipate what the teacher will ask and how you should respond.
 
The other kind of case - call it a hot case - usually involves a sympathetic plaintiff and an unsympathetic defendant. On first reading it appears that the defendant, a multinational company, has screwed the plaintiffs, a poor farming family, by renting land for strip-mining with a promise to restore it to its original condition and then reneging on the promise. The case has a judicial opinion that awards a meaningless couple of hundred pounds to the family rather than making the company perform the restoration work.
 
The point of the class discussion wil1 be that your initial reaction of outrage is naive, nonlegal, irrelevant to what you're supposed to be learning, and maybe substantively wrong into the bargain. There are good reasons for the awful result, when you take a legal and logical large view as opposed to the knee-jerk passionate view, and if you can't muster those reasons maybe you aren't cut out to be a lawyer.
 
Most students can't fight this combination of cases and hot cases. The cold case is boring, but you have to do it if you want to become a lawyer. The hot case cries out for response, seems to say that if you can't respond you've already sold out; but the system tells you to put away childish things, and you: reaction to the hot case is one of them. Without any intellectual resources in the way of knowledge of the legal system and of the character of legal reasoning, it will appear that emoting will only isolate and incapacitate you. The choice is to develop some calluses and hit the books, or admit failure almost before you've begun.

The Ideological Content of Legal Education

One can distinguish in a rough way between two aspects of legal education as a reproducer of hierarchy. A lot of what happens is the inculcation through the formal curriculum and the classroom experience of a set of political attitudes towards the economy and society in general, towards law, and towards the possibilities of life in the profession. These have a general ideological significance, and they have an impact on the lives even of law students who never practice law. Then there is a complicated set of institutional practices that orient students to willing participation in the specialised hierarchical roles of lawyers. Students begin to absorb the more general ideological message before they have much in the way of a conception of life after law school, so I will describe the formal aspect of the educational process before describing the ways in which the institutional practice of law schools bear on those realities.
 
Law students sometimes speak as though they learned nothing in law school. in fact, they learn the skills to do a number of simple but important things. They learn to retain large  numbers of rules organised into categorical systems (requisites for a contract, rules about breach, etc.). They learn 'issue spotting', which means identifying the ways in which the rules are ambiguous, in conflict, or have a gap when applied to a particular fact: situation. They learn elementary case analysis, meaning the art of generating broad holdings for cases so they will apply beyond their intuitive scope, and narrow holdings for cases so they won't apply where it at first seemed they would. And they learn a list of balanced, formulaic, pro/con policy arguments that lawyers use in arguing that a given rule should apply to a situation despite a gap, conflict or ambiguity, or that a given case should be extended or narrowed. These are arguments like the need for certainty and the need for flexibility, and the need to promote competition.
 
Law schools teach these rather rudimentary, essentially instrumental skills in a way that almost completely mystifies them for most law students. The mystification has three parts. First, the schools teach skills through class discussions of cases in which it is asserted that law emerges from a rigorous analytical procedure called legal reasoning, which is unintelligible to the layperson but somehow both explains and validates the great majority of the rules in force in our system. At the same time, the class context and the materials present every legal issue as distinct from every other - as a tub on its own bottom, so to speak - with no hope or even any reason to hope that from law study one might derive an integrating vision of what law is, how it works, or how it might changed (other than in an incremental, case-by- case, reformist way).

Secondly, the teaching of skills in the mystified context of legal reasoning about utterly unconnected legal problems means that skills are taught badly, unselfconsciously to be absorbed by osmosis as one picks up the knack of 'thinking like a lawyer'. Bad or only randomly good teaching generates and then accentuates real and imagined differences in student capabilities. But it does so in such a way that students don't know when they are learning and when they aren't, and have no way of improving or even understanding their own learning process. They experience skills training as the gradual emergence of differences among themselves, as a process of ranking that reflects something that is just 'there' inside them.

Thirdly, skills are taught in isolation from actual lawyering experience. Legal reasoning is sharply distinguished from legal practice, and one learns nothing about practice. This procedure disables students from any future role but that of an apprentice in a law firm organised in the same manner as a law school, with older lawyers controlling the content and pace of depoliticised craft-training in a setting of intense competition and no feedback.

The Formal Curriculum: Legal Rules and Legal Reasoning

The intellectual core of the ideology is the distinction between law and policy. Teachers convince students that legal reasoning exists, and is different from policy analysis, by bullying them into accepting as valid arguments about legal correctness that are circular, question begging, incoherent, or so vague as to be meaningless. Sometimes they are policy arguments (for example, security of transaction business certainty) which are treated in a particular situation as though they were rules that everyone accepts, but that will be ignored in the next case, when they would suggest that the decision was wrong. Sometimes they are exercises in formal logic that wouldn't stand up for a minute in a discussion between equals (for example, the small print in a form contract represents the 'will of the parties').
 
Within a given subfield, the teacher is likely to treat cases in three different ways. There are the cases which present and justify the basic rules and basic ideas of the field. These are treated as cursory exercises in legal logic. Then there are cases which are anomalous -'outdated' or 'wrongly decided' - because they don't follow the supposed inner logic of the area. There won't be many of these, but they are important because their treatment persuades students that the technique of legal reasoning is at least minimally independent of the results reached by particular judges and is therefore capable of criticising as well as legitimating. Finally, there will be an equally small number of peripheral or 'cutting-edge" cases which the teacher sees as raising policy issues about growth or change in the law. Whereas in discussing the first two kinds of case the teacher behaves in an authoritarian way supposedly based on his or her objective knowledge of the technique of legal reasoning, here everything is different. Because we are dealing with 'value judgements', that have 'political' overtones, the discussion will be much more freewheeling. Rather than every student comment being right or wrong, all student comments get pluralistic acceptance, and the teacher will reveal himself or herself to be either a liberal or a conservative rather than merely a legal technician.
 
The curriculum as a whole is rather similarly structured throughout. It appears once again to be, but is not really a random assortment of tubs on their own bottoms, a forest of tubs. There are certain underlying premises. First, there are the ground rules of late-nineteenth-century laissez-faire capitalism. Teachers teach them as though they had an inner logic, as an exercise in legal reasoning, with policy (for example, commercial certainty in the contracts course) playing a relatively minor role. Then there are the second- and third-year courses which expound the moderate reformist programme of welfare capitalism and the administrative structure of the modern regulatory state. These courses are more policy-oriented than first-year courses, and also much more ad hoc. Teachers teach students that limited interference with the market makes sense and is as authoritatively grounded in statutes as the rules of laissez-faire are grounded in natural law. But each problem is discrete, enormously complicated, and understood in a way that guarantees the practical impotence of the reform programme. Finally, there are peripheral subjects, such as legal philosophy or legal history and clinical legal education. These are presented as not truly relevant to the hard, objective, serious, rigorous analytic core of law.
 
This whole body of implicit messages is nonsense. Teachers teach nonsense when they persuade students that legal reasoning is distinct, as a method for reaching correct results, from ethical and political discourse in general (that is from policy analysis). It is true that there is a distinctive lawyers' body of knowledge of the rules in force. It is true that there are distinctive lawyers' argumentative techniques for spotting gaps, conflicts, and ambiguities in the rules, for arguing broad and narrow holdings of cases, and for generating pro and con policy arguments. But these are only argumentative techniques. There is never a correct legal solution that is other than the correct ethical and political solution to that legal problem. Put another way, everything taught, except the formal rules themselves and the argumentative techniques for manipulating them, is policy and nothing more. It follows that the classroom distinction between the unproblematic, legal case and the policy-oriented case is a mere artifact: each could as well be taught in the opposite way. And the curricular distinction between the nature of contract law as highly legal and technical, by contrast, say with environmental law, is equally a mystification.
 
These errors have a bias in favour of the centre political program (in any of its Major, Kinnock or Ashdown variations) of limited reform of the market economy and pro-forma gestures toward racial and sexual equality. The bias arises because law-school teaching makes the choice of hierarchy and domination, which is implicit in the adoption of our particular rules of property, contract and tort, look as though it flows from and is required by legal reasoning rather than being a matter of politics and economics. The bias is reinforced when the centre reformist programme of regulation is Presented as equally authoritative but somehow more policy-oriented, and therefore less fundamental. The message is that the system is basically OK, since we have patched up the few areas open to abuse, and that there is a limited but important place for value-oriented debate about: further change and improvement. If there is to be more fundamental questioning, it is relegated to the periphery of history or philosophy. The real world is kept at bay by treating clinical legal education, which might bring in a lot of information threatening to the cosy liberal consensus, as free legal drudge work for the local community or as mere skills-training.
 
It would be an extraordinary first-year student who could, on her or his own, develop a theoretically critical attitude towards this system. Students just don't know enough to figure out where the teacher is fudging, misrepresenting, or otherwise distorting legal thinking and legal reality. To make matters worse, the two most common kinds of left thinking the student brings are likely to hinder rather than assist in the struggle to maintain some intellectual autonomy from the experience. Most liberal students believe that the left programme can be reduced to guaranteeing people their rights and to bringing about the triumph of human rights over mere property rights. In this picture, the trouble with the legal system is that it fails to enforce the rights formally recognised. If one thinks about law this way, one is inescapably dependent on the very techniques of legal reasoning that are being marshalled in defence of the status quo.
 
This wouldn't be so bad if the problem with legal education were that the teachers misused rights reasoning to restrict the range of the rights of the oppressed. But the problem is much deeper than that. Rights discourse is internally inconsistent, vacuous or circular. Legal thought can generate equally plausible rights justifications for almost any result. Moreover, the discourse of rights imposes constraints on those who use it that make almost impossible its functioning effectively as a tool of radical transformation. Rights are by their nature 'formal', meaning that they secure to individuals legal protection for, as well as from, arbitrariness - to speak of rights is precisely not to speak of justice between social classes, races or sexes. Rights discourse, moreover, simply presupposes or takes for granted that the world is and should be divided between a state sector that enforces rights and a private world of 'civil society' in which atomised individuals pursue their diverse goals. This framework is, in itself, a part of the problem rather than of the solution. It makes it difficult even to conceptualise radical proposals such as, for example, decentralised democratic worker control of factories.
 
Because it is logically incoherent and manipulable, traditionally individualist, and wilfully blind to the realities of substantive inequality, rights discourse Is a trap. As long as one stays within it, one can produce good pieces of argument about the occasional case on the periphery where everyone recognises value judgements have to be made. But one Is without guidance in deciding what to do about fundamental questions and fated to the gradual loss of confidence in the 'convincingness' of what one has to say.
 
The alternative left stance is to undertake the Procrustean task of reinterpreting every judicial action as the expression of class interest. One may adopt a conspiracy theory in which judges deliberately subordinate 'justice' (usually just a left liberal rights theory) to the short-run financial interests of the ruling class, or a much more subtle thesis about the logic or needs or structural prerequisites of a particular 'stage of monopoly capitalism'. But however one sets out to do it, there are two difficulties. The first is that there is lust too much detail, too much raw matter of the legal system, and too little time to give everything you have to study a sinister significance. It would be a full-time job just to give instrumental Marxist accounts of the cases on consideration doctrine in first-year contracts courses.
 
The second difficulty is that there is no logic to monopoly capitalism, and law cannot be usefully understood, by someone who has to deal with it in all its complexity, as superstructural. The legal rules and concepts that permeate all aspects of social thought constitute capitalism as well as responding to the interests that operate within it. Law is an aspect of the social totality, not just the tail of the dog. The rules in force are a factor in the power or impotence of all social actors (though they certainly do not determine outcomes in the way liberal legalists sometimes suggest they do). Because it is part of the equation of power rather than simply a function of it, people struggle for power through law, constrained by their limited understanding and limited ability to predict the consequences of their manoeuvres. To understand law is to understand this struggle as an aspect of class struggle and as an aspect of the human struggle to grasp the conditions of social justice. The outcomes of struggle are not Preordained by any aspect of the social totality, and the outcomes within law have no inherent logic that would allow one to predict outcomes scientifically or to reject in advance specific attempts by judges and lawyers to work limited transformations of the system.
 
Left liberal rights analysis submerges the student in legal rhetoric but, because of its inherent vacuousness, can provide no more than an emotional stance against the legal order. The instrumental Marxist approach is highly critical of law but also dismissive. It is no help in coming to grips with the particularity of rules and rhetoric because it treats them, a priori, as mere window dressing. These theories fail left students because they offer no base for the mastery of ambivalence. What is needed is to think about law in a way that will allow one to enter into it, to criticise it without utterly rejecting it, and to manipulate it without abandoning oneself to their system of thinking and doing.

The Modelling of Hierarchical Relationships

Law teachers model for students how they are supposed to think, feel and act in their future professional roles. Some of this is a matter of teaching by example, some of it a matter of more active learning from interactions that are a kind of clinical education for lawyerlike behaviour. This training is a major factor in the hierarchical life of the legal profession. It encodes the message of the legitimacy of the whole system into the smallest details of personal style, daily routine, gesture, tone of voice, facial expression - a plethora of little p's and q's for everyone to mind. Partly, these will serve as a language - a way for the young lawyer to convey that he or she knows what the rules of the game are and intends to play them. What's going on is partly a matter of ritual oaths and affirmations - by adopting the mannerisms, one pledges one's troth to inequality. And partly it is a substantive matter of value. Hierarchical behaviour will come to express and realise the hierarchical selves of people who were initially only wearers of masks.
 
Law teachers enlist on the side of hierarchy all the vulnerabilities students feel as they begin to understand what lies ahead of then. In law school, students have to come to grips with implications of their social class and sex and race in a way that is different from (but not necessarily less important than) the experience of school. People discover that preserving their class status is extremely important to them, so important that no alternative to the best law job they can get seems possible to them. Or they discover that they want to rise, or that they are trapped in a way they hadn't anticipated. People change the way they dress and talk; they change their opinions and even their emotions. None of this is easy for anyone, but progressive and left students have a special set of humiliations involved in discovering the limits of their commitment and often the instability of attitudes they thought were basic to themselves.
 
Another kind of vulnerability has to do with one's own competence. Law school wields frightening instruments of judgement, including not only the classified degree system but also the more subtle systems of teacher approval in class, reputation among fellow students, and out-of-class faculty contact and respect. Left students: sometimes begin law school with an apparently unshakable confidence in their own competence and with a related confidence in their own left analysis. But even these apparently self-assured students quickly find that adverse judgements - even judgements that are only imagined or projected of to others - count and hurt. They have to decide whether this responsiveness in themselves is something to accept, whether the judgements in question have validity and refer to things they care about, or whether they should reject them. They have to wonder whether they have embarked an a subtle course of accommodating themselves intellectually in order to win reacher and peer approval.
 
In their relations with students, and in the student culture they foster, teachers get the message across more directly and more powerfully. The teacher/student relationship is the model for relations between junior solicitors and banisters and between senior partners and barristers, and also for the relationship between lawyers and judges. The student/student relationship is the model for relations among lawyers as peers and for the age cohort within a law firm or set of chambers.
 
In the classroom and out of it, students learn a particular style of deference. They learn to suffer with positive cheerfulness interruption in mid-sentence, mockery, ad hominem assault, inconsequent asides, questions that are so vague as to be unanswerable but can somehow be answered wrong all the same, abrupt dismissal, and stinginess of praise (even if these things are not always and everywhere the norm). They learn, if they have talent, that submission is most effective flavoured with a pinch of rebellion, to bridle a little before they bend. They learn to savour crumbs, while picking from the air the indications of the master's mood so they can learn the difference between a good day and misery. They learn to take it all in good sort. So it will be with many a robed curmudgeon in years to come!
 
The final touch that completes the picture of law school as training for professional hierarchy is the recruitment process. As each firm, with the tacit or enthusiastically overt participation of the law schools, puts on a conspicuous display of its relative status within the profession, the profession as a whole affirms and celebrates its hierarchical values and the rewards they bring. This process is most powerful for students who go through the elaborate procedures of firms in the top half of the profession. These include, nowadays, first-year summer jobs, dozens of interviews, second-year summer jobs, more interviews etc., etc.
 
This system allows law firms to get a social sense of applicants, a sense of how they will contribute to the nonlegal image of the firm and to the internal system of deference and affiliation. It allows firms to convey to students the extraordinary opulence of the life they offer, adding the allure of free travel, expense-account meals, fancy hotel suites and parties at country clubs to the simple message of money.
 
When students award prizes for the most rejection letters and for the most unpleasant single letter, they show their sense of the meaning of the ritual. There are many ways in which the boss can persuade you to brush his teeth and comb his hair. One of them is to arrange things so that almost all students get good jobs, but most students get their good jobs through twenty interviews yielding only two offers.
 
By dangling the bait, making clear the rules of the game, and then subjecting almost everyone to intense anxiety about their acceptability, firms structure entry into the profession so as to maximise acceptance of hierarchy (see John Fitzpatrick's second article and Watkinson in Chapter 3). If you feel you've succeeded, you're forever grateful, and you have a vested interest. If you feel you've failed, you blame yourself. When you get to be the hiring partner, you'll have a visceral understanding of what's at stake, but by then it will be hard even to imagine why someone might want to change it.
 
Inasmuch as these hierarchies are generational, they are easier to take than those baldly reflective of race, sex or class. You, too, will one day be a senior partner and, who knows, maybe even a judge; you will have mentees and be the object of the rage and longing of those coming up behind you. Training for subservience is learning for domination as well. Nothing could be more natural and, if you've served your time, nothing more fair than to do as you have been done to.

I have been arguing that legal education is one of the causes of legal hierarchy. Legal education supports it by analogy, provides it with a general legitimating ideology by justifying the rules that underlie it, and provides it with a Particular ideology by mystifying legal reasoning. Legal education structures the pool of prospective lawyers so that their hierarchical organisation seems inevitable, and trains them in detail to look and think and act just like all the other lawyers in the system. Up to this point I have presented this causal analysis as though legal education were a machine feeding particular inputs into another machine. But machines have no consciousness of one another; inasmuch as they are coordinated, it is by some external intelligence. Law teachers, on the other hand, have a vivid sense of what the profession looks like and what it expects them to do. Since actors in the two systems consciously adjust to one another and also consciously attempt to influence one another, legal education is as much a product of legal hierarchy as a cause of it. To my mind, this means that law teachers must take personal responsibility for legal hierarchy in general, including hierarchy within general education. It is there  because they put it there and reproduce it generation after generation, just as lawyers do.
 
Maybe my preoccupation with the horrors of hierarchy is just a way to wring the last ironic drop of pleasure from my own hierarchical superiority. But I don't interpret it that way. The denial of hierarchy is false consciousness. The problem is not whether hierarchy is there, but how to understand it, and what its implications are for political action.