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AMERICAN LAW REGISTER
THE PLACE OF ORIGINAL RESEARCH IN LEGAL
By GEORGE WHARTOX PEPPER.
There appeared in The Forum for July, 1894, an admirable paper, entitled “Research the Vital Spirit of Teaching." by President G. STANLEY Hall. “In the days of the old New England farm," says the writer, “where every boy had active duties and was, in a sense, a member of the firm; in the days of the old debating society and the earlier disputation, which from the time of Socrates down to the present century was the chief academic method, there was far more to develop the active powers of youth than in the academic training which. with the decline of these things, languished until these days of research; and research, for the average man, is doubtless of far greater value for discipline than for discovery." He proceeds to point out that the deeper causes and effects of this movement lie in the fact that individuality is thus developed, and that the method is re-enforced by the newer anthropology, which regards man as two-thirds will, makes effort the highest and most educable part of his nature and thus gives the method
of rescarch itself the highest value, even for lower schools, quite apart from the value of discoveries.
It seems strange that so little attention has been paid to the bearing of such considerations as these upon the subject of legal education, especially in view of the fact that a somewhat heated debate is in progress at the present time with respect to the proper method of law school instruction. The explanation is probably to be found in the fact that the study of law, in this country, is commonly looked upon as a department of education widely separated from all others—the lawyer, with characteristic narrowness, believing himself to be there in a world of his own creation, where no principles of education arc recognized save those which he himself evolves. It is assumed that all problems which arise are to be solved with reference to the consideration that the subject to be taught and Icarned is law, instead of with reference to the consideration that the problem is, before all else, an educational problem. It follows from this that almost every lawyer with whom one converses on the subject of legal education is rcady to speak cx cathedra and, merely in virtue of the circumstance that he is a member of the bar, to pronounce the most positive opinions upon the niost difficult educational questions. In New York city, for example, where the contest is ficrcest between the so-called “Casc-System " and the so-called “ Dwight Method," the school which seeks to identify itself with the latter intrenches itself behind a published list of the names of members of the New York Bar who signed the petition for the incorporation of the school—the infcrence being that they took this step because of a settled opinion favorable to that particular method of instruction. It is indeed true that, considering the efforts which must have been made to obtain signatures, the list is more notable for the names which it does not than for those which it does contain; and it is also true that some of the gentlemen whose names appear on the list attained their present conspicuous positions for reasons other than the profundity of their legal learning. The point insisted on, however, is this : that there is among lawyers a tendency to decide questions of this sort by a more count of heads and to seek to
vindicate a particular method of instruction by a simple enumeration of the successful lawyers whose legal education was moulded in conformity to it.
Another result of this mode of conceiving the subject is the basis of the selection of teachers of the law. It is often assumed that an eminent judge or a successful advocate or a learned counsellor will unquestionably prove himself the night man to instruct students of law, and to inspire them with a zealous love for the science to which they have swom allegiance. When a chair is to be filled in a law school, it is far too seldom that the inquiry is made respecting a candidate whether or not he possesses those peculiar qualities which mark the teacher, and it is quite certain that the instances are few indeed in which a selection is made upon the basis of the candidate's ability to stimulate in his students the spirit of research. “For research," says the writer already quoted, “ the first need is a professor who not only points, but leads the way. . . . The distance between these men and the routine-lesson-hearing prosessor is too great to he estimated by any method of psychological measurement yet devised."
Now, it requires but little reflection to convince an openminded man that is research and research methods have value in any department of education, surely they must attain their maximum value in the law. In legal education rescarch has a positive value as regards discovery entirely apart from its disciplinary valuc;, for it must be remembered that there are few who study law except with the intention of actually engaging, upon graduation, in what is "original work" in its truest sense. The great majority of college men who take, say, a history course, are taking it for its pure educational value, and not with a view to themselves cnlisting in the ranks of the his. torians. Yet, the highest authoritics unite in commending the research-method as the method which will, even in such cases, best enable professor and student to attain the desired end. A fortiori, is this true in the study of the law, for there every student is fitting himself to take an active part in the development of the law, and, by argument based upon research and investigation, to influence the decision of the cases which evi
dence its growth. It is somewhat discouraging, therefore, to find in a paper recently put forth by the Dean of the New York Law School such a paragraph as the following, in which he shows a lack of appreciation of the gcncral cducational valuc of rescarch, and ignorcs thc peculiar conditions which give it a special value in legal cducation : "If a young man wishes to learn English history, is he sent to Europe to ransack the archives and study the original documents, or are the works of Grees and GARDINER and MACAULAY put into his hands? If he wishes to study medicine and surgery, is he kept carcfully aloof from the treatiscs of great mcdical writers, who have recorded, for the benefit of those living, the abiding results of all past and present study, experience and discovery, and is he furnished with a living patient and a dead subject, that he may learn, by trcatment of the onc and by dissection of the other, what he may thus acquire from the original sources ?' Bryce's American Commonwralth is an elaborate trcatise upon the government and institutions of this country, gathering together a mass of valuable facts, which the student might have sought out for himself in the original sources;' but still it has been welcomed as one of the most important books of the time, and readers by thousands derive instruction from its pages, sadly oblivious of the fact that they are getting their knowledge at 'second hand.' In fact, when one thinks of the enormous mass of 'second hand' knowledge that has been absorbed by the cducated classes of Europe and America, in school, in college, or in private reading, the thought is almost appalling." These sarcastic references to the getting of knowledge at “second hand" were called forth by Mr. JANES C. Carter's use of that phrase to describe the method of tcaching law in which the instructor follows with his class in the roadways made by some text-book writer, explaining as they go the naturc of the work which the author has wrought, and “proving" it from time to time by an examination of a few of the cases with which the author was compelled to deal. Mr. Carter, in using the phrase in question, was pointing a contrast between this method and the so-called “case-system," in which the instructor, turning aside from the royal road
which others have made, leads his class through the wilderness by a way which he himself has explored—instructor and class together grappling with the cases and hewing for themselves a broad path, which is thus, in a real sense, a path of their own making.
Much has been written and more has been spoken about the 'case-system." It is, perhaps, useless to multiply words in its behalf-for in any course in which it has been tried it speaks for itself. Under the case-system the materials which are put in the students' hands are the cases which the instructor has selected as the stepping-stone cases in the development of the subject or doctrine under discussion. These cases stand for the stages of development through which the doctrine has passed from the time that its germ first made its appearance until its present proportions werc attained. With the facts of the second case, in historical sequence, before him and with the original decision as a precedent, the student is asked to address himself to the problem with which the court was confronted when that second case arose. Step by step he is made to carry the development forward as applied to the facts of the cases as they successively came up—thus entering into the inmost spirit of the opinions of the judges, after, in each case, first endeavoring to form his own. He is thus taught to look upon the law as a living and a growing organism, and to undertand that the development is destined still to go on. He is in a position to apply thc necessary mental corrective when he reads text-books and treatises such as BLACKSTONE's, which almost ignore historical perspective and treat legal doctrines in a given form as things recognized in that form semper, ubique et ab omnibus. The "genius of the law” ceases to be to him a mere phrase. He realizes that the law grows upon historical and not upon mathematical principles. He is made to perceive how it will grow and develop while he is at the bar. It should seem that no institution which aims at dispensing all that is best in education can long remain in doubt as to which of these two methods shall be adopted in its law school. "The law, for the student, is not merely something to know of, but also something to do; and the method that inures the