Saturday, April 1, 2023
Here is the text [UPDATE: and the video] of a talk I was delighted to give a few weeks ago for the inaugural conference of the Center for Law and the Human Person at Catholic University School of Law, ably directed by Elizabeth Kirk. A bit of a manifesto, I'm afraid, which I offer here now on the 19th anniversary of Mirror of Justice, a forum that has meant a great deal to me.
Do You Wish to Know? Notes on a New Humanism in Legal Education
March 14, 2023
A center for law and the human person is a center devoted to considering questions about humanity, about human nature, about what is good and bad for human beings. About what their ultimate ends are. About who humans are and what they should do.
Such a center, I will claim, is not only about these central questions concerning humanity, but also about the disciplines that have come to be known as the humanities, and the way that the humanities contribute to the formation of fully human beings—in the case of the center, fully human beings who also happen to be lawyers.
What would such a center pursue as part of its core humanistic mission?
Here there are some major challenges that such a fledgling center would confront. There is some bad news. Familiar bad news, perhaps, but bad news nonetheless worth reviewing. The humanities—the study of language (ancient and modern), history, philosophy, literature, the arts, and, on some understandings, religion and theology—are in free fall. The numbers of undergraduates majoring in these fields is shrinking dramatically. Dramatically, in fact, does not do the shrinking the barest justice.
Such is the lack of interest in the humanities that many colleges are eliminating humanistic study altogether. These include Catholic colleges, like Marymount University in Virginia, which recently announced the cutting out of humanistic learning. But not only Catholic colleges. Colleges, religious and secular, are doing away entirely with majors in these subjects, and they are also reducing humanistic study drastically. If these reports are credited, there simply is no longer even the minimal student interest in them necessary to sustain departments or self-standing courses.
And this is not an issue only for what are regarded as less elite institutions. An article in The New Yorker just a few weeks ago observed that over the last decade, humanities majors have dropped at an average rate of 50% at schools like Ohio State, Arizona State, Tufts, Notre Dame, Columbia, and Harvard. In fact, Harvard’s numbers are particularly striking. In 2012, the number of humanities majors at Harvard was 20%. In 2022, it was 7%. The numbers are forecasted to fall even more after that. Good economic times, bad economic times, and everywhere in between, the numbers continue to decline.
The explanations are many and sufficiently plentiful that one can insist on whichever reason one might prefer. Some say that the advent of technology like iPhones and social media (Twitter, TikTok, Instagram, and so on) has made the activity of the reading of humanistic books superfluous or uninteresting. There is surely some truth to this, a truth from which I do not exempt myself. I know (to my shame) that I am reading fewer books today than I read even ten years ago. I am consumed with my own phone. As a recent NY Times piece on what is wrong with the humanities put it, “The answer to any question, ‘What is Wrong…” is or ought to be, ‘I am wrong.’” The line was Chesterton’s, actually.
It has also been claimed that the language of centuries past is increasingly inaccessible or impenetrable to today’s generations of students, who prefer and are accustomed to a different way of communicating more suited to current circumstance. Again, there is also some truth here. I have found that a good meme can do as much to make, say, Marbury v. Madison memorable as can close attention to its elegant but difficult text.
Others say that economic concerns predominate. College is extremely expensive, and only becoming more so. Most students are required to take on crushing loans. Those loans put great pressure on students to find employments that are immediately remunerative, so that they can then proceed to even more well-paying work later. The humanities are not seen as safe bets in an environment of such pressure. Employers are not looking for history or language majors. The skills taught by history professors in history departments are not seen as marketable. They do not distinguish a candidate as desirable, as they once did.
In a related development, witness the meteoric ascent of STEM fields. At Princeton University, where I am visiting this semester, a gigantic new engineering program is being constructed—a colossus that will dwarf the existing educational structures and that will, I am told, drive a massive expansion in Princeton’s student admissions in the coming years. Just as humanities majors have precipitously declined, so, too, have Computer Science majors and other applied science majors exponentially grown. The current Secretary of Education, Miguel Cardona, has emphasized repeatedly that colleges and universities must “meet the needs of the economy,” and those needs are connected overwhelmingly to education in STEM fields, not the humanities.
And universities, here and abroad, have become, as Adrian Pabst puts it in a recent piece in the New Statesman, “managerially controlled and market driven.” College and university administrators (some of whom, I hasten to add, are lovely, lovely people, Dean Payne), whose rise in numbers and power within the universities has often been remarked, tend to see the function of the university in these terms as well. They are liable to ask questions like (as one administrator did recently ask me), “Why are you assigning Plato in your free speech and free inquiry class? What does that offer the students?” What, indeed, when a STEM-exclusive education can produce marvels such as ChatGPT, which, some say, makes humanistic study even more useless and anachronistic than it was already.
And, of course, a final explanation for the collapse of humanistic learning is internal. Humanities professors themselves increasingly disdain or even are ashamed of the learning and the knowledge that form the core of their own disciplines. Classical languages departments at the most elite universities have begun to do away with requirements in the very languages that constitute their discipline. A Latin major with no Latin. English departments rename themselves something else—anything else—mortified by the learning that constitutes their own field. As one Harvard English professor put it in the New Yorker piece, “One of the tragedies of the British Empire is that everyone read Dickens, so we must read him too.” Not exactly a ringing endorsement of Dickens, though that is about the best that one can hope for in the way of defense. Small wonder that large numbers of students flee such disciplines. This is the death of learning, as the title of a recent book by John Agresto puts it, “not by murder, but by suicide.”
I do not intend to pick among these explanations or spend much more time surveying reasons. Probably they all have some explanatory role. I want instead to think about effects. About what this collapse means. After all, one might reasonably ask, so what? What difference does it make that many fewer students are interested in these subjects? Disciplines come and go in the history of human thought. Astrology was once studied in universities. Alchemy was, too.
Academic disciplines can become extinct, and there need not be any regret at their dying. Or they can transform themselves into something else. Psychiatrists today are trained to be chemists where once they were trained to be psychoanalysts. English departments can become social media studies departments. And, at any rate, the appetite for the study of Assyrian or Linear B or even the Romance Languages probably never was all that high to begin with. Perhaps it should not be.
The death spasms of the humanities are only to be regretted, and efforts to resuscitate them undertaken, if we can conclude that there is something of worth in them, that they continue to contribute something of value. That requires a defense of some kind. An apology, one might say, for the humanities. So…do they? The author of the New Yorker article that I mentioned observed: “scholars have begun to wonder what it might mean to graduate a college generation with less education in the human past than any that has come before.”
That author might have consulted a law professor or two for answers. After all, we get lots of undergraduates right after their college years, so that if there are effects of the moribund humanities to see, we might be likely to see them.
Here let me offer a personal observation. At St. John’s Law School, where I teach, I am something of what in baseball was once called a utility player. I’ve taught Criminal Law, Constitutional Law, Professional Responsibility, Torts, Law and Religion, Free Speech, Catholic Social Thought, and other courses. For whatever reason (staffing needs or what have you), over the last four or five years, I have taught the entire St. John’s 1L class—every one of our 270 or so students—whether in Tort Law or Constitutional Law or both or something else. I like it that way. As I tell my students, I like the reach.
About 5 years ago, I began to notice something in my students, particularly my 1Ls. My students had strong intuitions about things that were highly relevant to whatever legal doctrine we were talking about. Strong views about concepts like justice, rights, liberty, equality, morality, harm to others, fairness, consent, human nature, intention, autonomy, identity, the public good and public welfare. Intuitions also about the meaning of words like health, safety, duty, reasonableness, property, objectivity and subjectivity, good, evil, and on and on. Even intuitions about what, if anything, transcends the law that they study. Even intuitions about God, even if not expressed directly.
And in these courses—Torts and Constitutional Law especially—I started seeing patterns recur for my students. They have their intuitions. They know what they think. Or at least they think they know what they think. But they did not have very much in the way of frameworks or backgrounds in the question—why do I think what I think? Why do others think what they think?
That created a kind of impasse. They felt strongly about an issue. They suspected others did as well. But there did not seem to be any way to translate or communicate with the other person who disagreed or saw things differently. Not only that they disagreed, but that the way they used moral or political terms was so different that basic communication became very difficult.
More often than not, the result of such an impasse is that a student would keep quiet. Say nothing. It is sometimes remarked that students are chilled in their speech at universities today. I have no doubt that this is true. The statistics on this front are, indeed, startling. But I have come to think that many keep their counsel because they do not know how to begin broaching a disagreement, particularly a disagreement on a highly controversial subject.
Disagreements, after all, can be rather disagreeable if one is not capable of conveying disagreement within structures of meaning that make sense of one’s own view, and with due care and understanding for another person’s different view. And so louder voices of flat assertion come to predominate—indeed, such louder voices are often taken as representative voices, as “what the students think”—and the entire enterprise of learning is stifled. Almost suppressed as if by design.
Sometimes one hears this problem expressed in the view that students don’t know how to make a reasoned argument. But the making of reasoned arguments does not materialize out of thin air. The capacity to make reasoned arguments depends upon having been initiated into worlds of knowledge and frameworks of understanding in which reasoned argumentation occurs on a regular basis. In which that is the currency of dialogue and exchange. It depends upon regular habituation and formation through the medium of the humanities.
In fact, such frameworks and such learning have been suppressed. Those frameworks for understanding are precisely what was provided by the humanistic disciplines of philosophy, history, literature, and even language and art—all of which students are systematically not taught today, for the confluence of reasons I have mentioned and likely others.
With the result that the interesting thing is not that students today, as the New Yorker article put it, “have less education in the human past than any before.” That is entirely to be expected, given the manifold explanations for the death of the humanities. The truly interesting thing is that students know it. One might have thought, if one only read cranky online pieces bemoaning the demise of the humanities, that students just don’t care at all any longer about the humanities. That they have repudiated them as useless or passé.
But they have not. Many students know that they are missing something, or at the very least, they sense, and they regret and yearn for, worlds of knowledge and meaning that have been denied to them and in which they have not been initiated. They know that they do not have this knowledge, and they want to learn, desire to know, even if they do not know just what it is that they have been missing. Even for those for whom this feeling may not arise unassisted, it is a feeling that can be cultivated. Students can be nudged, prodded, even asked directly:
“There is a knowledge of the human out there that exists and from which you might profit. Do you wish to know?”
“All men, by nature, desire to know.” So said Aristotle at the beginning of the Metaphysics. And so, more and more, said my students as well, whether directly or implicitly in what I saw in them in their required classes. It was this increasingly acute hunger in my students, oftentimes latent and underdeveloped, that pushed me, a few years ago, to construct a new kind of course, one that I called Jurisprudence, Justice, and Politics. I was already co-teaching a course with a colleague and learned friend, Professor Mark Movsesian, in law and religion, and this had helped to introduce some interested students to humanistic and theological learning in their legal studies.
This new course does something similar but in a different way. It blends some of the foundational work in political theory and philosophy with concrete American law. We read some of Plato, Aristotle, Augustine, Aquinas, Suarez, Hobbes, Locke, Mill, Marx, and many others. In the second part of the course, we read common law, statutory, and constitutional judicial opinions against the backdrop of these older writers. We look for the roots of jurisprudential approaches in our own law—formalism, realism, positivism, natural law, the force of custom, of practice, of moral principle, and so on—refracted against the frameworks for thinking about law, politics, and morality in these older humanistic sources. We consider contemporary jurisprudential ideas—feminist legal thought, critical race theory, law and economics, law and empirical studies, and others—within and set against these older currents of thought.
Now, I am not a professional philosopher. More like a humanist manqué. The course required more preparation and study than I’ve ever put into…well, just about any project I’ve ever undertaken. The course is even now still a work in progress. But it was well worth it for the satisfaction that I saw in my students at its conclusion. It taught me that genuine humanistic education is possible in America, for my students and, in teaching them, for me.
In reflecting on that experience, I should say something about what I came to believe my students were missing in the humanistic learning that they sensed themselves to be lacking. It is sometimes said that the humanities teach civic values. I think this misses the point. My students were not asking to be taught civic values. They get forced instruction all the time in what is thought by academics and administrators today to be the essential values of the American polity. That is not what they sensed they were lacking.
There is nothing sacred about the humanistic works that we read. Not even Aquinas, though he comes close! These books do not teach good values, civic inclusion, toleration, or proper hygiene. What they do is to ask human questions in a particularly urgent, penetrating, and memorable way, and then offer timelessly interesting answers. So that students are enriched, personally—as human beings—by reading and thinking about the perennial questions of humanity raised by these works in different ways (perhaps, I should add, in ways that will alienate them, not accommodate them, to the prevailing academic patterns of instruction).
Just what is the connection of humanism to law? Let me begin to try approach this important question by way of three responses.
The first is conceptual. Law depends upon sources of knowledge and understanding outside itself. Unless one is a hyper-formalist, legal outcomes are not determined by legal text and legal doctrine alone. They depend upon the outside knowledge, understanding, learning, and character that people bring to those texts and doctrines. If that is so, then law teachers must repair or make up for the absence of knowledge and understanding that students bring to the law—a repair that depends on returning to the humanist tradition.
A second response is more personal, involving an exchange I had with one of my Jurisprudence students. This student wanted to write about the way in which an Augustinian account of human justice and of its inevitable corruptions, in City of God, might inform how we think about the function and limits of criminal punishment in American law. But the student was worried that this framing might not persuade anyone, might not be influential. Even as a writing sample, the student thought, can I really show this to a future potential employer? Will I be marked out as un-hirable or somewhat odd if I do that? More fundamentally, what good will a paper like this really do, the student asked. Will it have an impact? Will it really help anyone or persuade anybody? Will it make anyone’s life better? Wouldn’t a policy paper that avoided Augustine and spoke about injustice in the prison system in contemporary terms be better, more effective?
Important questions. It might well be better, I told the student, for you to write a different paper if the paper were for those purposes. It might be more persuasive or more influential to others if you modified it. Or if you wrote about something else altogether. It might make a bigger impact on the world.
But it won’t be better for you. Whatever may be said for others, this paper about Augustine and justice will be better for you, for your learning, for your development as a human being. This paper will enrich you, deepen your thoughts, cultivate your understanding about the issues you care about and perhaps others that you don’t yet know you care about. So do this paper to shape yourself, not to shape or influence others. Do this paper to become more fully human.
A third response to the question of the connection between law and the humanities is historical. The eminent Renaissance historian James Hankins tells us, in his magnificent book, “Virtue Politics,” that the quattrocento humanists of the great Italian city states—Florence, Pisa, Lucca, Siena, Bologna, and others—saw themselves as engaging in a process of “soulcraft.” They saw around them a fractured polity. A polity in which “loquax ignorantia,” a “talkative ignorance,” prevailed.
What needed changing was not institutions. We in legal education pay a great deal of attention—perhaps too much attention—to our legal institutions. But what needed changing, for the humanists, was persons. What needed reform was mens, a term we still use in criminal law when we speak of mens rea (a term used for state of mind). But mens, for the humanists, was a word that meant not only mind in this narrow sense, but fundamental disposition, character, self-understanding.
A footnote: what would our discussion of mental states be like in law school classrooms if we expanded our teaching to encompass questions of disposition, character, and self-understanding? What would our discussion of states of mind in tort law, criminal law, intentions of the parties in contract law, congressional intent in statutory interpretation, purpose to discriminate in constitutional law, and so many other areas, become? How would a humanized account of mens transform our legal study and learning? Transform our students?
A second footnote: as I was writing this talk, I was also preparing some class notes concerning the classic truth-seeking justification for the freedom of speech, with its attendant marketplace of ideas metaphor. I came across a fine paper just two years ago that argued for knowledge, rather than truth, as a justification for free speech in our world today. Quite apart from the interest and the many difficulties of such an account…it struck me that the paper was nearly an exact replica of the arguments spun out by Socrates in Plato’s dialogue, the “Meno,” and in particular the famous story of the Road to Larissa and the distinction between knowledge and true belief. What it would be like to teach the First Amendment by traveling Plato’s Road to Larissa with students?
Back to the humanists! What was needed was a movement of thought and action to rebuild the depleted reserves of character, piety, and practical wisdom. As Hankins puts it, a movement “of noble conduct, eloquent speech, selfless dedication to country, and inner moral strength, nourished by philosophy, language, literature, and true Christianity. It was a movement that yearned after greatness, moral and political.”
A project in soulcraft, in character formation. Students who study law are, yes, looking to learn what the law is. They are eager to learn about our institutions of law and politics. But many are, in my experience, also deeply invested in the project of relating the law they learn to the eternal and enduring concerns of human beings. If that is something of which their education has deprived them up to the point when they arrive at law school, then what is urgently needed is a new humanism in legal education. To challenge students in law by cultivating their humanity through the humanities, so as to prepare them for a more human life in the law.
At the end of my Jurisprudence class, I conclude with a few lines from Dante’s Divine Comedy, from Canto XXVI of Inferno, as Ulysses speaks to his comrades, urging them on in the quest for learning even in the face of danger, the unknown, and the dark worries and concerns that, in fact, all of us are afflicted with in life:
“Considerate la vostra semenza, fatti non foste a viver come bruti, ma per seguir virtute e canosczenza.”
“Consider your seed—[your origins, your maker], you were not made to live like beasts, but to seek virtue and knowledge.”
One final note for this incipient project on a new humanism in legal education. This is a Catholic center, at a Catholic law school, within a Catholic university. The Catholic University of America. In what way, and just how, might it be part of the special mission of a Catholic center for law and the human person at a Catholic law school to undertake the sort of new humanism that I am describing? Here is a sketch of something like an answer, though it is only a sketch at the moment. A note that will require augmentation.
It is the Catholic way to place theology at the center of human knowledge, reflecting the unity of virtue and knowledge, their interconnections and their co-dependencies. Cardinal John Henry Newman, in his famous work, “The Idea of a University,” remarked on this unity of knowledge at the heart of a Catholic University: “all knowledge forms one whole, because its subject-matter is one; for the universe in its length and breadth is so intimately knit together, that we cannot separate off portion from portion, and operation from operation.”
It is within that unity of knowledge that the connections between the humanities and the law fall into place. It is within that unity that they make sense, fit together, reveal the whole. It is an opening or a way into that unity of knowledge that I have seen my students crave.
A Catholic Center for the Study of Law and the Human Person can make this part of its mission. A Center and a law school willing to pursue that new humanism in legal education surely will face many obstacles, many more than I have spoken about, and even more that I cannot foretell.
But one thing I do know: perhaps more than at any time I can remember in my life as a teacher, the students are there. They are searching for their origins—their seed. They are searching for knowledge, for the living of a virtuous life as lawyers, even if they do not yet know just what they are searching for. They are searching for their humanity. They only await us.