Ox:Juris

 

 

 

 

 

 

 

 

 

 

Advice > Studying philosophy as a law student

 

 

 


One big problem
for law students moving into philosophical subjects is that of confusing abstraction with vagueness. It is true that jurisprudence is abstract. It is about puzzles that lurk in the background of legal thought and need to be worked on thoroughly before we can even say exactly what they are, let alone solve them. A common reaction to this among law students is to think that the subject is 'waffly' and that if they muse gently for a page or two on some problems of general public concern, that will be a jurisprudence essay. But it will not be. It will closely resemble a Private Eye pastiche of an op-ed article from The Guardian. The problem is that the more abstract one gets, the greater the temptation of vagueness, but the greater the need for precision. Every word is crucial, every turn of phrase a potential trap. Everything has overtones that could mislead. One cannot make do, in philosophy, with the ambiguous formulations that are used in pub arguments. Indeed one cannot really make do with the kind of loose argumentation that satisfies many judges and many advocates. One's mentality needs to be closer to that of a statutory draftsperson, weighing each tiny word to make sure it is both necessary and sufficient to its task. If some jurisprudence gives you a headache that is precisely because it is not vague but your grasp of it is. You need to do work on your concentration powers and your attention to detail. (This will do you good as lawyer too. You will be less sloppy than many of your colleagues and you will have a better professional reputation. Yes, that's right, jurisprudence makes you rich.) How do you work on these things? Well you have done it once before, when you started out your law studies. Whatever you did then, you just need to crank it up a bit further.

The other big problem for law students taking their first steps in jurisprudence is the need to abandon the culture of deference to authority. As a lawyer, you get used to being asked to cite an authority (e.g. a case or a statute) in support of each legal proposition you utter. The proposition stands or falls depending on whether it has that support. But when you advance a philosophical proposition, it stands or falls only on its truth. Whether it has the support of an authority is irrelevant. Law students often try to convert the philosophy of law into a kind of legal subject. They treat the philosophical books and articles they read as if they were authorities for the propositions they contain. Thus it is tempting to write 'legal systems are systems of rules' (Hart) meaning not just that Hart says this but that Hart's saying it helps to vindicate it or make it fit to rely on it, as if Hart were a judge in the Court of Appeal. Unfortunately he wasn't and it doesn't. Some proposition may be signed up to by every philosopher in history but it could still be quite mistaken. Even complete consensus doesn't vindicate. The proposition still stands or falls on its truth only and its truth is always up for argument, even in your essays! You must work hard to convert yourself to this mentality. You must avoid the assumption that what your tutors and examiners most want to hear is what other people have said. What they want to hear much more is what is true and what is mistaken in what other people have said, and why. Or better still, if you can attain this level of independence, just what you have to say on the same problems, supported, obviously, by a decent argument showing why it should be accepted as true.

A symptom of this deference problem is that, at least to begin with, you may make useless notes. Students often complain that they don't know how to make notes in jurisprudence. The answer may be, at least for some, that they are trying too hard to represent jurisprudes in the same way that they represent judges. They are trying to create a headnote like one finds in the Law Reports. But it would be bizarre if one could do this. A headnote typically gives one the legal question and the court's answer. Most of the argument that leads to the answer is omitted (or reduced to a bare list of cases that are overruled, distinguished, etc). If one were to do this with a philosophical work one would eliminate all the philosophy. The note would not be worth having. One needs to reconsider one's whole way of note-making for the purpose of jurisprudence. Some successful students don't make notes at all but annotate their readings in such a way that they will be able to glance through each piece again and remind themselves of its key moves quite quickly. Others make diagrammatic notes, representing each article or book chapter in a flow chart. There are possibly other attractive ways to achieve the same results. But notice that however you set about doing it, what you are trying to represent are the MOVES that are being made. Merely representing the propositions contained in the piece without representing how the author moves between them will be supremely unhelpful when it comes to revision. You will end up citing jurisprudes as authorities, rather than dwelling on the success of their arguments in revealing (grains of) truth.

Another related problem is the problem of unfocused reading. You will rightly conclude from your reading lists that in many cases the first thing you need to do with a jurisprudential topic is to get a sense of the diversity of arguments and views, which means wide reading. But further down the line your needs will change. You will need to add some depth of understanding, and this may mean focusing your study on particular arguments to which you are particularly sympathetic or particularly unsympathetic. These you will sometimes need to follow up - if you are getting seriously involved - by reading other literature by the same author (filling in some of the philosophical background) or additional critical literature focusing on the particular argument(s) in question. You will also need to start seeing how positions on different topics fit together, so that you can cope with questions that straddle (say) the first and fourth topics on your reading list. Some students benefit on this front by concentratedly reading a large amount of work by just a couple of writers whose work they enjoy and admire (although not necessarily agree with), since this shows how one brain copes with moving around several topics and also reduces alienation. Your tutor will obviously try to help you pursue arguments and authors that you find particularly interesting or help you to bridge gaps, by identifying further readings. You can also use secondary literature to identify related works by the same authors or relevant opponents. But be careful about using secondary literature without the corroboration of the primary literature concerned. It can be a false friend. Often it gives an idiosyncratic impression of the emphasis of the primary literature, and sometimes it gets things just plain confused. Use textbooks and sourcebooks by all means but use them very discriminatingly as ways of organising your additional research rather than as replacement reading. Apart from anything else, the latter gambit is always a dead giveaway in the exams - the odour of a dead parrot is always pungent - and it will not endear you to the examiner. You have been warned.

Come revision time, the happiest state to get yourself in is that of immersion in the subject, so that you are ready to have a go at anything the examiners can throw at you. This is not so much a matter of knowing a lot of information. It is more a matter of knowing how to react. By occasionally browsing the jurisprudence shelves in the library and reading bits and pieces - say in between reading your land law notes and your administrative law notes - you can pick up many extra ideas about how to tackle fresh problems or how to put a new spin on old ones. You may be able to anticipate what themes will be represented on the exam paper but you will not be able to anticipate exactly what you will be asked about them. It will do you no good to have your positions worked out if you don't have a sense of how to adapt your positions effectively to new challenges. If you just write down your positions without attention to exactly what you were asked you can only get a mediocre mark, however well worked out your positions may have been. Your adaptability in argument is one of the main things that is being tested. It will be good if you have learnt some philosophy but the crucial question in your examiners' minds will be whether you have learnt to philosophise, i.e. to think precisely about abstract problems even when they are thrown at you in new and unexpected forms.

Need more help? This page, you will notice, doesn't make specific suggestions for primary or secondary reading. But we have reading lists galore on our course materials pages that make copious suggestions for approaching the subject at your particular level, including (in most cases) preparatory or preliminary reading. Feel free to shop around and experiment with different tutors' and lecturers' suggestions. On our jargon-buster page you will also find advice on some terminological traps that you may fall into at first.
 

 

 


Law students moving into interdisciplinary topics always encounter a few transitional problems. Don't let them get to you. Here are some tips specifically for those who are taking law-and-philosophy type courses, most particularly those just beginning in undergraduate jurisprudence.
 

What's giving you problems?


Vagueness?
No authoritative answers?
Useless notes?
Unfocused reading?
Revision blues?
Not enough help here?

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