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
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.
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
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
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.
Ideological Content of Legal Education
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).
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.
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
Formal Curriculum: Legal Rules and Legal Reasoning
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
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.
Modelling of Hierarchical Relationships
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
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.
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
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.