Law and Liberal Arts
 

　"It is no surprise that so much legal scholarship and judicial analysis is unoriginal, unempirical, conventional, and unworldly, overwhelmingly verbal and argumentative (indeed, verbose and polemical), narrowly focused on doctrinal questions, mesmerized by the latest Supreme Court decisions, and preoccupied with minute and ephemeral distinctions—rather than bold, scientific, and descriptive. The academy does not generate the knowledge that judges, lawyers, and legislators need in order to operate a modern legal system, yet there is no other institution capable of generating it. Unless these grave deficiencies of academic law are overcome, ambitious programs for improving law are unlikely to succeed” [1].

　　This is not the sarcastic remarks of trolls but rather comes from R. A. Posner, a former federal appellate judge on the U.S. Court of Appeals for the Seventh Circuit, a well-known legal scholar. Posner, renowned for his interdisciplinary approach, making such comments is not surprising. This statement is not entirely a criticism but also a description of a characteristic of legal scholarship: it seems to have a certain isolation, sometimes appearing inconsistent with our moral intuitions, often refusing to fully embrace empirical data, and engaging in language games that are not easily understood by the general public.

　　Perhaps the isolation in professional technical research, such as medicine or accounting, is inevitable. However, an interesting phenomenon arises compared to other disciplines: the isolation of legal studies seems to attract more criticism and unease from the general public. People often take a more critical perspective on legal studies, reacting strongly to its perceived difficulty. Observing a similar situation in other professional and technical fields is challenging. The tension between the professional domain and everyday life also reflects the distinctiveness of legal studies in liberal arts education. It raises the question of whether such education is merely a "window" for understanding the legal profession or if it should establish deeper and more organic connections with other disciplines, especially when liberal arts are considered a form of holistic education.

　　The book "Law in the Liberal Arts" compiles perspectives on the same issues from legal scholars and scholars in different fields.  Although the book has its unique background (American postgraduate law schools) and has been around for 20 years, some observations and insights are still highly inspiring today. D. J. Goodman and S. S. Silbey argued that professional legal studies are a form of "training," while liberal arts legal education is a form of "education". The former views law as a fact, while the latter sees law as a "moral achievement": law must engage in more discourse to gain legitimacy. This connection is crucial because a legal system lacking legitimacy is just a colonization of the lifeworld, and liberal arts legal education helps establish this connection[2]. K. J. Bybee, further, asserted that the true difference between liberal arts and professional legal education lies in the former being more deeply rooted in political life. It decodes chaotic and inconsistent judgments, helping people understand how law, as a power against the majority, reconciles various disputes in a tricky political system. In this sense, it is the foundation of democratic self-governance [3]. A. Sarat echoes the views of the three aforementioned scholars, stating that the characteristic of professional legal education is the separation of law from morality and politics. This is also integral to how law schools teach students to "think like lawyers". The task of liberal arts legal education is to rebuild this fractured connection and pay attention to the monopoly of violence by law [4].
However, legal professionals in law schools may not fully agree with these views. Regardless of the increasing trend of interdisciplinary research in law today, the perspective presented earlier gives the impression that legal profession only cares about "what the law is." In contrast, liberal arts legal education cares more about "what the law should be." Yet, in constitutional litigation, parties often present arguments on how the Constitution should be interpreted without explicit rules and precedents. While courts invariably claim that their judgments are based on constitutional intent, the question remains whether they are dealing with "what the constitution is," "what the constitution ought to be," or whether the two are indistinguishable in this context. This situation is not only limited to constitutional courts. Due to the open texture of law, when judges decide "what the law is" among several possible interpretations, they also think about "what the law should be." Even if the law is treated as a fact, the most interesting and paradoxical aspect of such facts is that they inherently embed the ideal dimension of "what the law should be." In addition, the law is not designed to provide the most perfect result for a specific case but to produce general and reasonable results for most cases under stable and foreseeable considerations. The realization of this function depends to a large extent on each judge's mutual reference and adherence to existing legal practices, which somewhat leads to the seemingly incomprehensible appearance of legal rigidity and occasional counterintuitive results. However, these unlikable aspects sustain the features of modern law we cherish, such as universality, consistency, and objectivity.

　　So, is the perspective in "Law in the Liberal Arts" wrong? Not necessarily. Some arguments in the book suggest that liberal arts legal education should be more critical, avoiding teaching students "how to think like lawyers" as in professional legal education. However, this article believes that liberal arts legal education is precisely about first letting students understand how lawyers think. As mentioned earlier, law is a fact with an inherent ideal dimension. While lawyers may engage in the mechanical aspects of the facts in their daily work, they also frequently conduct normative thinking expected by commentators in the ideal dimension of these facts. Normative thinking links to political morality, but the law cannot simply represent the political and moral views of certain individuals or groups; it must coordinate different political and moral perspectives—this position itself is a political and moral perspective. Therefore, legal profession has always faced political and moral issues. Legal thinking about these issues is limited because it cannot be just an exciting and unique debate; it must also consider the stability of entire system.

　　Learning to think like lawyers means understanding that the law exists within the tension between facts and ideals and that legal professionals can only engage in limited normative thinking. Of course, this structure is no excuse for the law to isolate itself from external criticism. How to balance facts and ideals, stability and flexibility in this sructure, presupposes countless value questions. These value questions must be connected to more discourse because the law, as a monopoly of violence, loses legitimacy once it loses its connection to external discourse. Even the most utilitarian thinking is sufficient to tell us how disastrous a legal system can be without legitimacy.

　　Once we generously acknowledge that liberal arts legal education is also about understanding how lawyers think, the perspective in "Law in the Liberal Arts" becomes more focused. Different disciplines (whether social sciences, humanities, or natural sciences) are no longer just criticizing law from their own perspectives but more accurately pointing out where the law can be improved from an interdisciplinary perspective after understanding the inherent structural limitations of law. Such liberal arts legal education is no longer just "non-authentic legal education" but a precious resource and nourishment for legal scholarship. This multi-faceted liberal arts legal education allows individuals to move away from empty rhetoric and slogans, truly understanding the difficulties and beauty of the democratic rule of law, which is the foundation of a good political life.

Reference:
[1] Posner, R. A. (1993). The Problems of Jurisprudence. Harvard University Press.
[2] Goodman, D. J., & Silbey, S. S. (2004). Defending Liberal Education from the Law. In A. Sarat (Ed.), Law in the Liberal Arts (pp. 17-40). Cornell University Press.
[3] Bybee, K. J. (2004). The Liberal Arts, Legal Scholarship, and the Democratic Critique of Judicial Power. In A. Sarat (Ed.), Law in the Liberal Arts (pp. 41-68). Cornell University Press.
[4] Sarat, A. (2004). Crossing Boundaries: from Disciplinary Perspectives to an Integrated Conception of Legal Scholarship. In A. Sarat (Ed.), Law in the Liberal Arts (pp. 84-106). Cornell University Press.