Wednesday, November 24, 2010
For those who are interested in criminal law, the Ohio State Journal of Criminal Law is a relatively new peer reviewed periodical that publishes shorter and less heavily footnoted interventions than one generally finds in other legal journals. In the latest issue, I've got a brief reaction piece to Professor Anders Walker's interesting article a couple of issues back. Walker discusses the origins of the criminal law casebook as it largely exists today and offers some prescriptions for change to the course, among which are an increasing, if not exclusive, focus on case law and a concerted movement away from more theoretical discussion about the purposes, functions, and justifications of criminal prohibition and punishment. As I note in my response, Walker's prescriptions are in keeping with much that is now in vogue in legal education reform, and I suggest some reasons for skepticism about what Walker advocates. (For a very different response to Walker's article that, while touching on distinct issues, is more sympathetic to it and well worth reading, see Professor Chad Flanders's piece).
The exchange got me thinking about the range of connections between Criminal Law and Catholic Social Thought, a seminar I just taught for the first time at St. John's. One could approach the question of connections between the two in a number of ways: a first might be substantive -- for example, involving issues like the legal and moral propriety of the death penalty, or the range of reasons why it might be legitimate to punish someone. Another might compare the ways in which ideas of "rights" as compared with ideas about "human dignity" shape the way that we think about the function of criminal law. A third, if the course is approached more distinctly from the point of view of what "social justice" demands, might be to ask questions about whether criminal law is (or is capable of) providing it. Yet another -- one that occurred to me as I read Russell Powell's post below -- is about the relationship of crucial terms like "complicity" in criminal law (what gives rise to accomplice liability) and "complicity" as it is used more commonly, or even from a theological point of view.
But the connection that I want to focus on here is more a meta-question. It is the question of why it is that a course like Catholic Social Thought and the Law, or Criminal Law, ought to be worth studying at all in law school.
In my CST course, we begin in the very first class with Ex Corde, in order to have a sense for what the reasons might be that a Catholic institution might want to offer the course. And in a previous incarnation of the course, we also read an essay by Michael Oakeshott called, "The Study of Politics in a University." In it, Oakeshott inquires after what University study ought to be all about, and concludes that the reason to study any particular subject in a University, as opposed to a vocational school, is not for the practical uses to which the information obtained in the course can be put but for the traditions of thought and inquiry to which it exposes students. "There are large tracts of the human past," says Oakeshott, "arts and literatures, laws and customs, happenings in the world, the thoughts that men have entertained, their inventions and devices" that are "worth" studying for the richness that they can bring to a student's life, the layering and complexity that they can cultivate in an educated person. Lawyers, no less than any other student, will profit from the engagement.
As I say in the piece, none of this is to deny that law school is in important respects a vocational school, and that people enter it in order to learn a professional trade. It is undoubtedly true that close study of a particular jurisdiction's law for its immediate utility to a future client is a function of law school education -- and client service and employability is certainly a reason -- and an important one -- to offer criminal law (though I wonder very much whether it is a reason to require criminal law; for more on that, see my response). But in other, and no less important, ways, the value of courses like criminal law and Catholic Social Thought lies elsewhere. Catholic Social Thought partakes of the same quality that was perhaps in the eminent legal scholar Sanford Kadish's mind when he described what is worthwhile about the teaching and learning of criminal law. "Almost liberal arts," he said. If I might amend that only slightly, I'd say, "Different than liberal arts, but less in quality than in mood." At the end of my response up above, I offer this thought about criminal law: "Criminal law, as much as any other legal subject, can awaken in students the realization that a substantial overlap between legal and liberal learning does, in fact, exist -- for them and, in teaching them, for us."
I think, and hope, that the same may be said for Catholic Social Thought.