On the (Legal) Study Methods of Our Time: Vico Redux

IONS AS DISADVANTAGES 1311 V. EMPIRICAL SOCIAL RESEARCH AS CORRECTIVE; STRENGTHS AND DEFICIENCIES OF LEGAL REALISM AND SOCIOLOGY OF LAW 1312 VI. LEGAL SPEECH ACTS; CLAIMING AS MODERNITY’S SPEECH ACT PAR EXCELLENCE 1314 VII. POLITICS, AS REALM OF APPEARANCE OF SPEECH AND ACTION, AND ITS DISREGARD IN MODERN LEGAL STUDY METHODS 1320 VIII. POETRY AND MUSIC. UNDER SOME CONDITIONS, THE BUREAUCRACY AND JARGON OF MODERN LAW CAN LEND ITSELF POETIC APPEARANCE 1323 IX. HISTORY AS LEGAL METHOD: LIMITS AND POSSIBILITIES 1324 X. TWENTY-FIRST-CENTURY AIDS TO LEGAL LEARNING; COMPUTING ........ 1324 XI. IMAGES AND VISUAL LITERACY 1325 XII. SYSTEMS-THINKING IN THE KNOWING OF LAW 1326 XIII. USING CAMPUS SERVICES 1329 XIV. UNIVERSITY AND COLLEGE PROFESSORS IN THE EDUCATION BUSINESS 1330 XV. CONCLUSION 1331 ∗ Professor, Department of Rhetoric, University of California at Berkeley. The author can be reached at constable@berkeley.edu. This essay benefited from discussions following presentations in the University of British Columbia Law and Society series and at the University of Victoria Law School. The author thanks Sarah Misherghi for research assistance and Hunter Hogan for his help. 1304 CHICAGO-KENT LAW REVIEW [Vol 83:3 I. SUBJECT OF THE PRESENT DISCOURSE; INSTRUMENTS AND AIDS AS WAYS AND MEANS OF LEARNING; VICO’S AIM AND MINE Three hundred years ago, rhetoric professor Giambattista Vico delivered an oration celebrating the opening of the school year at the University of Naples.1 In a fifteen-part speech on the “method of knowledges” or approaches to education and studies of his time, Vico compared the learning of the “Ancients” and the “Moderns” and devoted a couple of long sections to law and legal education. He pleaded, in the face of the newlypredominant Cartesian “method,” for a so-called return to eloquence and for greater attention to the work of memory and imagination in education, foreshadowing what in his later work would become his “new science” of humanity: a combination of philology, philosophy, and history. This essay draws loosely on the form and spirit of Vico’s On the Study Methods of Our Time to comment critically on intellectual and institutional approaches to U.S. legal studies today. Like Vico’s text, this essay began as a talk and has been revised for publication into fifteen parts of varying length.2 After an introduction to legal education, Parts III through IX compare rhetoric to the various disciplines that take law as their subject matter. Parts X through XIV consider the current aids to legal learning. The essay as a whole explores the limits and possibilities of different approaches to law. In the context of the contemporary administrative state of university education, it argues that law and legal education are not only too important to leave to the lawyers, but also too important to leave to social scientists and policy makers. It shows what the contributions of rhetoric to contemporary legal studies could be. Vico’s address on the system of studies of his time, which was published with revisions a year after he delivered it, takes “Truth” to be the sole aim of all intellectual pursuits. Vico identifies the drawbacks and disadvantages of modern approaches to knowledge in light of this aim. He distinguishes knowledges, such as arts, sciences, and inventions, which concern the materials of learning, from instruments and aids of learning, which comprise the ways and means of learning. Vico limits the topic of his discourse to ways and means of learning, but discusses sciences and arts insofar as he finds that they constitute new or modern instruments of knowledge. The common instrument of all modern sciences and arts, Vico writes, is philosophical “critique” (or “method”). This rational method, 1. GIAMBATTISTA VICO, ON THE STUDY METHODS OF OUR TIME (Elio Gianturco trans., Cornell Univ. Press 1990) (1709). 2. Vico’s original oration did not contain sections. The translator made divisions and derived a table of contents from Vico’s summary of the talk. Id. at xlix (“Note on the Text”). 2008] VICO REDUX 1305 following Descartes, claims to begin with fundamental—necessary and universal—truths and to deduce consequences from them. The instrument of geometry is analysis; of physics, it is geometry; of medicine, chemistry; of astronomy, the telescope; and so forth. Contemporary complementary aids for learning include “orderly reduction to systematic rules” of that “which the Ancients were wont to entrust to practical common sense,” works of literature and fine arts, types used in printing, and universities as institutions of learning.3 Law, “which the Ancients, balked by the difficulty of the task, gave up hope of organizing into a systematically arranged, methodical body of theory,” provides a prime example for Vico of a subject which the Ancients left to unaided common sense but which the Moderns have organized into an “arte.”4 Far be it from me to take on the ambitious task of addressing all fields of scholarship that Vico as rhetoric professor presented as both his “duty” and his “right.”5 My aim instead is more circumscribed: in the course of an exploration of the ways and means of U.S. legal education, I will show what rhetorical study can offer to the study of law in early twenty-firstcentury United States academic institutions. I take truth to be the aim of intellectual pursuits; I do not presume that all contemporary pursuits of the legal art are intellectual ones. The current system of legal studies has, as Vico would put it, its own advantages and deficiencies—both as an intellectual pursuit and for the pursuit of law. Greater attention to the rhetoric of law, a twenty-first-century Vico would agree, would make legal studies “more correct and finer in every respect.”6 II. INSTRUMENTS OF LEARNING: INSTITUTIONS OF LEGAL STUDIES (USA); PROFESSIONAL LAW SCHOOLS AND ACADEMIC DISCIPLINES As most of you will know, law in the U.S.—in contrast to law in many other countries—involves a three-year professional training, acquired in post-baccalaureate or post-graduate schools. Undergraduate students with degrees in a wide array of fields come to law school to acquire what one U.S. law professor (with a PhD) irreverently calls a “second BA.” (In naming the degree “LLB,” Canadians make the status of the law degree explicit.) Although law schools offer some clinical training, the curriculum consists primarily of three years of coursework, typically interspersed with