Thomas R. Orr
The Socratic Method in Law School: An Imperfect but Credible Witness Against Modern Empirical Education, A Paradigm for Homeschooling
by THOMAS R. ORR*
After that time those who are selected from the class of twenty years old will be promoted to higher honour than the rest, and the sciences which they learned without any order in their early education will now be brought together, and they will be able to see the natural relationship of them to one another and to true being.
Yes, he said, that is the only kind of knowledge which, in a few fortunate persons, takes lasting root. —Plato, Republic
Before a first-year law student ever gets to his first day of class he has “excelled” during 8 years of high school and undergraduate academic competition, passed a tough entrance exam, and survived an application process designed to find only those who have the capability to be successful in law school. He has bested many other students in scores on standardized tests in elementary and secondary schools, college (e.g. PSAT, SAT, ACT) , and to get admitted to law school (LSAT). By today’s standards he is most often the prototypical “A” student with a grade point average of 3.5 or better, and an LSAT score in the 90th percentile.
Today’s “Excellent” Student Struggles in his First Year of Law School
Heart racing, sweaty palms, getting mentally geared up—no, it’s not a typical athlete experiencing pre-game butterflies—it’s a typical first-year law student experiencing pre-class butterflies. What could so unnerve such an “excellent” student? Evidence suggests that the new law student’s stress is due largely to the combination of a sudden switch from the lecture method of instruction to the Socratic Method; and from objective/empirical grading of the student’s ability to memorize lecture materials to a subjective evaluation of the student’s actual understanding and analytical skill as demonstrated by a one-time written essay. Dr. Adler, a doctor of philosophy and former faculty member of the Law School of the University of Chicago, provides some insight:
“Excellence” by the standards of modern education today does not always reflect true understanding or skill—the hallmarks of a true education and the prerequisites not only to success in law school but to a happy life. Thus, today’s “excellent” student enters law school totally unprepared to handle a method of education designed, not to reward memory, but to instill understanding. Gone are the long lectures, furious note taking, and long hours spent memorizing the opinions of the lecturers in order to regurgitate them during a later test (and then forget them for the most part). Gone are the textbooks and commentaries replete with facts, theories and concepts to be memorized and repeated back. Gone are the familiar periodic quizzes, papers, and midterms that judge a student’s ability to absorb and parrot back the opinions, theories and facts deemed important by his teacher.
In law school, college professors lecturing about their field and their theories are replaced with law professors who directly question their students about cases they have read—cases that, unlike textbooks, have neither instructions nor explanations that will serve to answer the question posed. To complicate matters, the cases are often selected because of the errors they contain or for esoteric points not easily seen upon a quick read. Quite often, there is no definite “answer”—nothing to memorize or repeat back. And, just when the student thinks he has finally given “the” answer, the professor asks another question or poses a hypothetical that exposes the flaw and the absurdity in the student’s reasoning. The questioning can be confrontational and professors often leave thoughts and ideas dangling—leaving the students with more questions than at the beginning of class. Not surprisingly, students used to the more predictable “lecture and memorize” method, express immense uncertainty and frustration at this process.
Of course, it is just such uncertainty and frustration that the Socratic method seeks to awaken as a means to motivate the student to inquire and analyze further. As in life, there are no easy answers. For many students, this is the first time they have been asked to analyze facts and think on their feet under the scrutiny of a professor and their fellow students. It is a small reflection of what these prospective lawyers will face when asked similar questions by judges, experienced lawyers, and clients about how the law applies in real life situations that are never identical. Simply repeating memorized facts would never succeed in real life and should not succeed in a classroom. Far better to learn how to analyze and think in the relative safety of a classroom under the watchful eye of a professor whose only goal is to awaken understanding, than in a court room with real lives and fortunes at stake.
The Law School “Classic” Method Runs Contrary to the Precepts of Modern Education
The method of legal education described above is a combination of what is referred to as the “Socratic Method” and the “Case Method”. In the “Case Method”, students prepare for class by reading books containing actual court cases. Much like students in a typical Great Books program who prepare for class by reading the actual text of the Great Books (as opposed to commentaries on the texts), law students read the actual written opinions of judges serving in various federal and state courts (as opposed to treatises describing those cases). Other than reading the cases, a law student has no homework, no assignments, and no extra credit. His job is to come to class prepared to discuss and analyze the thinking of the judges in the cases he has read. At class, the Socratic Method begins. The professor randomly selects one student and asks for a summary of the case and the judge’s decision. After the summary is over, the “game is afoot” and the professor will probe the student’s understanding and analysis with questions about unclear, important, or difficult issues. At this point, the discussion becomes a true class discussion with the professor calling on students randomly to get their answers to the same or new questions, or to hypotheticals constructed by the Professor to focus attention on ambiguous terms, assumed concepts, or fallacious reasoning. Some form of this process can be observed in almost every law school in America today.
Law Schools Have Rejected The Lecture Method and the Empirical Method of Testing
Law Schools did not always use the Classic Method so prevalent today. Indeed, legal education in America used to resemble the lecture system commonly used in most of our present-day elementary and secondary schools, and colleges and universities. American legal education, like our legal system itself, has its roots in the common law of England. From the time of Edward I, British lawyers were trained through the system of Inns of Court and apprenticeships (one well known example of this can be found in Dickens’ David Copperfield). Like their British counterparts and the fictional Copperfield and Traddles, most early American lawyers learned their trade as apprentices—copying law books and legal papers for practicing attorneys. By copying law books and legal papers, students were expected to learn the law through memorization.
This process continued even after the founding of the first American law school in 1775. Law students continued to work as apprentices reading and copying the law from treatises, and also attended daily hour-and- a-half lectures. The lecture and memorization method prevailed in early American law schools until the late 19th century when a few legal educators began to realize that this method was not producing lawyers with a true understanding of legal principles and the ability to analyze how those principles should apply in ever-changing factual situations.
Professor Theodore Dwight of Columbia Law School is credited with being the first law professor to do something about this by providing black letter rules of law to his students and then questioning them socratically as to how those rules might apply in a new factual “laboratory” situation. But it is Christopher Columbus Langdell, a Harvard Law School Professor, who is hailed as the first legal educator to combine the Socratic and Case methods. Through his efforts other law schools soon followed suit. Professor Beales, at Columbia’s Law School in the 1930’s and 1940’s, came to embody what is now also known as the “Classic Method” of law instruction (i.e., the combination of the “Case Method” and the “Socratic Method”), and was, perhaps, its greatest practitioner (Beales is reported to have been the model for Professor Kingsfield in the book and movie “Paper Chase”). As with the fictional Professor Kingsfield, Professor Beales is reported to have terrorized his students in class to the point where they dreaded going to class (many of these same students later reported that he was the greatest teacher that they had ever encountered).
In the classic method of legal education, accomplishment is measured more by rapid analysis and the ability to articulate the analysis—not by memory and regurgitation. How then is a law student graded? The Socratic process continues for an entire semester or year at which time the student is given a lengthy written essay exam (2-4 hours) usually consisting of hypothetical cases rife with legal issues in the tested subject area. The best students usually demonstrate their analytical ability and understanding of legal principles by taking the same Socratic approach to the written exam, i.e., positing questions to all possible issues and exploring the nuances of all possible answers. After reading the written essay, the professor assigns a grade that reflects the professor’s subjective evaluation of the student’s understanding and analytical ability and, in some schools, the student’s performance in the classroom Socratic discussion.
The Law School Socratic Method Runs Counter to the Methods of Modern Education
For the most part, and despite criticisms from some modern educators, law schools to this day still insist on the Socratic method particularly in the first year of law school. The persistent and continuous insistence of law schools on the Socratic method and “subjective” written essays is an imperfect but credible witness against the overwhelming insistence of modern elementary, secondary and undergraduate schools on the lecture method and “objective” tests such as multiple-choice exams. The distinction between these means of education is no small matter. Indeed, it is critical. Critical not only if we want to educate our children but also if we want to form them morally. Dr. Adler described the importance of this distinction in 1976:
The way in which we test or examine students and the way in which we grade them determines what teachers teach and how they teach, and what students learn and how they learn. Our present methods call for indoctrination rather than genuine teaching, and for memorizing rather than genuine learning.
Unless we radically change our present methods of testing and grading students, we cannot expect our teachers to become cooperative artists instead of mere indoctrinators, and we cannot expect our students to become genuine learners instead of mere memorizers.
Today, on almost a daily basis, our modern educators ask us for more money to solve what, all admit, is an educational crisis. Our students, they tell us, are not well educated. They know this because scores on standardized tests tell them we are not measuring up as compared to others. The solution, they tell us, is to hire more teachers, build more classrooms, and hold teachers and students accountable for learning as measured by standardized tests. Indeed, the two candidates in our recent Presidential race both agreed on these essential points while disagreeing as to how and where to spend money to correct these problems.
Although many of the observations about poorly educated students are correct, many modern educators automatically assume that more teachers, more classrooms, and standardized testing/accountability will improve the level of education. Even more significantly, these educators overlook the moral component of education. Either that or they do not accept responsibility for education on the moral virtues so dear to Socrates. The two components, good education and morality, go hand-in-hand with a true education as contemplated by Socrates. As early as 1940, it was evident that modern education was failing on both ends:
Scientific measurements of the educational product of the schools of New York and Pennsylvania show not merely a failure to master the ordinary subject matters of instruction but, what is much more dismal, the inadequacy of the schools with respect to the basic operations of critical intelligence as these occur in reading and writing. Not only are distressingly large numbers of high school graduates unable to read and write to that minimum degree which must be possessed by free minds participating in a democratic community, but the evidence further shows that after graduation they have neither appetite or capacity for reading anything better than the local newspaper or mediocre fiction.
Our colleges produce undisciplined and hence unliberated minds, minds which are cultivated only by a superficial literacy. Almost worse, is that they produce skeptics about reason and knowledge, relativists about morals, sophists in political matters, in short, liberals in that worst sense of the word in which liberalism is suicidal because it is unable to give a rational defense of its sentimental protestations without contradicting itself.
Modern Education has Departed from Centuries of Proven Educational Method & Testing
How is it that our educators are so keenly aware that there is a crisis in education yet so miss the mark on the means to overcome the crisis? Quite simply, they are heavily influenced (some unconsciously so) by the tide of empiricism that has swept through the world since the Reformation and Renaissance. They have rejected means that have proven successful for centuries. Written tests, grading, and normative/standardized tests are only relatively recent newcomers in history, and their advent was the harbinger of a major sea change in education due to an unnatural emphasis on science and empiricism. Aristotle and Socrates never received grades for their efforts, yet no one can question their brilliance or understanding. St. Thomas Aquinas had no transcript to prove his brilliance yet his Summa Theologica makes that self-evident. Einstein’s failing grades in elementary school are well known yet no man can question that he had one of the most brilliant scientific minds in the history of mankind. None of the authors of the Great Books of Western Civilization had to sit for a SAT exam in order to get an advanced education yet all of these men achieved a level of understanding and analytical ability largely unparalleled today. How is it then that our world has become so different? Dr. Adler explains:
[W]ith the progressive secularization of our society and culture, we have moved further and further in the direction taken at the Reformation and with the Renaissance. . . . From the fifteenth to the middle of the nineteenth century, the main course of European and later of American Education represents a continuity rather than a break with the education of antiquity. . . . Only with a sense of that continuity of Western education from the Greeks to the nineteenth century can we fully appreciate the sharpness of the break that has occurred since 1850.The Way in Which We Teach & Test Today Differs Radically from the Ways of the Past
One of the chief “reforms” since 1850 has been in the way we test our students. Contrary to the educational reform under which all of us have been educated, most of the men that we know as authors of the Great Books were educated when testing was done by oral examination—the predominant mode of assessing understanding since the time of Charlemagne. A few examples will suffice. In the seventh century, Alcuin, Charlemagne’s Chief Minister and head of the Cathedral School at York, used oral examinations. The University of Paris and the University of Bologna used oral exams in the 12th century. Evidence exists of oral exams in Italy in the 1400s, and in England at Oxford and Cambridge in the 1700s. In America, oral examinations predominated from 1709 until 1845 when Horace Mann, one of the modern reformers, forced the Boston Public Schools to abandon oral examinations in favor of written examinations.
In contrast, written examinations were rare until about 1850 when Descartes’ theories really began to take hold in education through the likes of John Dewey. Why the change in emphasis from oral to written examinations? All of the changes that have come in the last hundred years flow from a desire to infuse the scientific method into all aspects of education. In 1903, Frederick Kelly introduced the concept of norm-referenced scoring that still predominates today. As he explained it, educators should create “norms in terms of which a child can readily be scientifically classed for pedagogical purposes.” The introduction of the first successful intelligence test in 1905 signaled the incursion of psychology into education and it “altered testing forever, eventually including the use of statistical criteria to select questions for inclusion on achievement tests.”
These notions quickly inserted themselves into testing at all levels. For example, the Educational Testing Service, administrator of the SAT and many other standardized tests and successor to the College Entrance Examination Board founded in 1900, makes no secret that its tests (including the first known SAT exam in 1926) were based on the principles of Binet and Kelly. Another example, one of the purposes of testing in the Boston Public Schools of 1916 was described as “furnish[ing] the teacher with a standard by which she may judge whether her class is above or below the general standard for the city.” One of the centerpieces of this movement was the introduction of the multiple-choice test in 1914 by Fredrick Kelly and, with the advent of the appropriate technology in 1955, this mode has predominated. Thus, by the end of the 20th century, the incursion of the “scientific management movement” into education was responsible for displacing the written essay tests that had only come to replace oral exams in the previous century.
The use of grades followed a similar course. In North America, grading was reportedly first used at Yale in 1785 in a system that used adjectives for grades. Yale is also responsible for creating a scale-of-four system in the 1800s—a system that persists to this day under the grade point average system seen in almost every school. Other colleges such as Harvard, William & Mary, and the University of Michigan experimented with various letter and percentile grades from 1830 into the 20th century. For example, Harvard used numerical scales in 1877, letter grades in 1883, classifications of groups of students in 1884, class in 1886, and classifications for merit in 1895. Percentage grading appeared in the late 19th century and the switch to letter grades in elementary and secondary schools came in the 1930s and 1940s. The 1960s saw many schools opting for pass/fail grades or written evaluations of performance. Today, letter grades are the predominant method in elementary and secondary schools. Report cards summarizing grades first began appearing in 1911 and are commonplace today.
The introduction of written and multiple choice tests, and grades did not go unopposed. For example, as early as 1888, a school superintendent in Cincinnati complained about the effect of written essay tests when used to promote and classify children:
[These essay tests] perverted the best efforts of teachers, and narrowed and grooved their instruction; they have occasioned and made well nigh imperative the use of mechanical and rote methods of teaching; they have occasioned cramming and the most vicious habits of study; they have caused much of the overpressure charged upon schools, some of which is real; they have tempted both teachers and pupils to dishonesty; and last but not least, they have permitted a mechanical method of schools supervision.
The Influence of Scientism Has Given Us Poor-Students who are Skeptics
Despite such objections, these changes gained firm ground as the scientific method gained ascendancy over the theology and philosophy that influenced education prior to the Reformation and Renaissance. Those imbued with the notion that the only truth is that which is measurable could not accept anything less than scientific “objective” measures of performance. Lectures proved to be the most efficient means to indoctrinate youth with the facts they needed to know for their tests, and grades the best means to quantify performance (as opposed to a qualitative assessment of understanding). Over sixty years ago, however, it was readily apparent, that the results of these changes were disastrous for education, the students, and our country:
The factors operating in the current situation have been prepared by centuries of cultural change. What has been happening in American education since 1900, what has finally achieved its full effect in the present generation, flows with tragic inevitability from the seeds of modern culture as they have developed in the past three hundred years. The very things which constituted the cultural departure that we call modern times have eventuated, not only in the perverted education of American youth today, but also in the crises that we are unprepared to face. . . . They are both the last fruitions of modern man’s exclusive trust in science and his gradual disavowal of whatever lies beyond the field of science as irrational prejudice, as opinion emotionally held.
[As a result, a student so educated] will see for himself that moral questions, questions of good and bad, right and wrong, cannot be answered by the methods of natural science or social science. He will conclude that “value judgments” cannot be made, except of course as expressions of personal prejudice. He will extend this conclusion to cover not only decisions about his own conduct but also moral judgments about economic systems and political programs. He will accept without question the complete divorce of economics from ethics and, in discipleship to Machiavelli, he will become as much a realist in politics as Hitler and Mussolini.Modern Education is Infused and Imbued with Cartesian Principles
What are the differences between the education of centuries past and present day education that would account for the visible decline not only in the intellectual ability of our students but also their moral decline as well? “The chief difference between ourselves and our ancestors is that they, for the most part, talked sense about liberal education, whereas we for the most part—I mean our leading educators—do not.” Our modern educators not only exaggerate the place of science in the curriculum, but also have infused Cartesian notions into the principle tenets of every subject. Cartesian principles not only determine the validity and primacy of all subjects, but also are the basis by which student understanding is measured. In short, a religion of science predominates modern education.
The Lecture Method and Tests of Memory Corrupt the “Means” of Education
The root error of many of our modern educators imbued with primacy of scientism is “not merely that in many quarters the end of liberal education has been forgotten or mistaken, but that the means have been corrupted or deformed.” The “means” of education have been corrupted to a great extent because modern educators have failed to understand the critical distinction between memory and understanding. Memory is merely an act of the senses but understanding requires an act of the intellect. A fact remembered is not a fact understood. Science can measure memory but “measuring” understanding (in a Cartesian sense) is nearly an oxymoron.
Just as our modern educators fail to appreciate the difference between memory and understanding, so do they fail to appreciate an important corollary distinction, i.e., the difference between opinion and knowledge. Knowledge requires an understanding based on an evaluation of reasons and evidence. Students can acquire knowledge with or without the aid of teachers—by thinking and making their own discoveries. As Saint Thomas Aquinas once explained: “There is a two-fold way of acquiring knowledge—by discovery and by being taught. . . . Discovery is higher.” Genuine teachers act as cooperative artists to inspire students to think on their own either through coaching or the Socratic method. The only authority that a genuine teacher can appeal to is the rule of reason in light of existing evidence. The student is then expected to use his own reason to think through and understand—to know.
But the estimated 85% of present-day classroom time devoted to the didatic/lecture method is merely indoctrination of opinion—not the acquiring of knowledge. Generally, teachers who lecture expect students to accept what they tell them simply because they are the teacher. At best, this is mere indoctrination of students with the opinion of the teacher. And, as any of us who have ever crammed for an exam know well, opinions adopted and facts memorized as a result of lectures are soon forgotten. Most students could not pass today’s tests if they were repeated only one year later. How many of us adults could still pass the standardized tests of our high school or college years? Indeed, how many of us even recall any lectures we had during high school or college much less the details of those lectures?
In contrast to opinion, knowledge that is gained through understanding lasts forever. What is understood cannot be forgotten because it is a habit of the intellect, not something remembered. Dr. Adler gives the example of a student who is learning the proposition that a truth is self-evident only if it is undeniable. If the student merely memorizes the proposition or accepts that it is true because his teacher has told him so, he cannot understand or know why it is true. It is merely that student’s opinion based on the authority of his teacher. But a student who contemplates that proposition and engages in a Socratic discussion with his teacher and classmates ultimately will discover on his own that the proposition that a truth is self-evident only if it is undeniable must be true because its opposite is unthinkable.
Oral Examination and Questioning Is Superior Because It Probes Understanding
The distinctions between memory and understanding; and knowledge and opinion force the conclusion that oral examination of a student, “the probing of the mind by persistent questioning that penetrates its depths as far as possible”, is the only effective means to test or measure a student’s understanding: “Only an oral examination can succeed in separating the facile verbalizers and memorizers from those in whom genuine intellectual skills are beginning to develop and whose minds have become hospitable to ideas. Written examinations, even term papers or senior essays, are inadequate for this purpose. Where serious written work is undertaken by the students, it should only be made the basis for examining the student orally to see if he can defend his thesis with some depth of understanding that goes below the surface of his written document.”
John Henry Cardinal Newman, in his 1851 discourse on elementary education, illustrates the ease with which the verbalizers and memorizers are spotted in an oral examination by providing two sample transcripts of oral examinations covering grammar, history and geography. The first transcript compellingly demonstrates the weak performance of a student who has been indoctrinated while the second illustrates a student who knows what he is about and has mastered what he has read. For Newman, it is better if our students understand “a little, but well” rather than know a great deal of information about a variety of topics yet be incapable of true analysis and understanding. It is better if a student learns to “compare one idea with another; adjust truth and facts; form them into one whole, or notice the obstacles which occur in doing so. This is the way to make progress; this is the way to arrive at results; not to swallow knowledge, but (according to the figure sometimes used) to masticate and digest it.”
Legal Education Today Has Not Forgotten The Supremacy of Oral Questioning
It should not be a surprise then that even the “excellent” products of our education system stumble when they encounter the alien world of law school. Legal education today, in contrast to elementary, secondary and undergraduate education, reflects both an understanding of the importance of cooperative teaching through the Socratic method, and an appreciation of the need to test understanding through a probing examination. The enduring success of the Socratic method in our law schools provides tangible and practical evidence that the changes and reforms advocated by Dr. Adler, Dr. Taylor, Dr. Senior, Dr. Quinn, Dr. Redpath, Dr. Hancock, and others offer the best hope to solve our educational crisis and, more importantly, the moral corruption rampant in modern society.
Let me be clear—legal education is not perfect. The faults of legal education include the use of a written examination instead of an oral examination; use of the Socratic Method divorced from Socratic principles, particularly moral virtue; a change in focus from reading cases as the raw materials for discussion to reading them because they were the actual depository of a rule of law; and reliance solely on the study of American cases to the exclusion of natural and moral law, and the philosophy of law. Although well-designed essay exams can approximate an oral exam, oral examinations are the only true method to determine a student’s understanding. Use of the Socratic Method divorced from the moral virtues so loved by Socrates leads to skepticism—a fault that many lawyers of today possess. Limiting or orienting class discussion to discovery of a single specific rule perverts the Socratic notion of a free-ranging discussion about the legal principles at issue in any case. Study of the great books of western law and the philosophy of law provides the only basis for young law students to understand and question the morality, logic, and justice of American laws, and to form an appreciation that the natural law must serve as a touchstone and guide for any system of laws. As we now see, the excessive focus on American cases and an emphasis on deciding legal questions and enacting laws without reference to the natural law ultimately produces a bevy of amoral lawyers who need ethical codes to tell them right from wrong.
Despite these obvious faults, however, our present day law schools have hit upon a formula for true education albeit somewhat imperfectly. The emphasis of law schools on the Socratic method to instill true understanding, and a written examination to probe and test that understanding are an implicit rejection of modern empirical education. Those interested in true and real education of their children have a rough real-world confirmation that true education is much more than the indoctrination through memorization encouraged by the lectures and standardized tests so prevalent today.
We Must Remember That Many of Us Are Products of Modern Education
As parents, we must constantly remind ourselves that we too are products of modern empirical education. Having been raised and educated in a system that emphasizes lectures, and rewards memorization with grades or percentile rankings based on standardized tests, we naturally tend to consider them a measure of how well “educated” our own children are. Homeschooling parents have seen through the errors and flaws of our educational system and have gone to great sacrifice to make certain their children receive a proper education. What a shame then to repeat the errors of our modern system by insisting entirely on memorization, high grade point averages, and high scores on standardized tests; yet never engaging our children poetically or Socratically to probe and expand true understanding, and inspire a true love and desire to learn.
To be sure, there is no need, indeed there is no place, for a heavy-handed, Professor Kingsfield-like Socratic discussion in the home. But children respond wonderfully to the more-genteel approach to Socratic and pre-Socratic (poetic) education advocated by Dr. Senior, Dr. Quinn, Dr. Taylor and others. As Socrates himself suggested: “No compulsion then, my good friend, . . . in teaching children; train them by a kind of game, and you will be able to see more clearly the natural bent of each.” This form of the Socratic method has succeeded with third graders even in primarily scientific/empirical topics such as arithmetic. The results of Dr. Adler’s Paideia program are further evidence of the effectiveness of the coaching and Socratic methods at all levels of education.
It is these experiences that served as the inspiration for the combination of the poetic method and Socratic seminars offered by the Angelicum Academy—to help and guide homeschooling parents and their children in the poetic and Socratic aspects of a true education. Although some homeschooling parents and students must submit to standardized tests imposed by the state or are required to submit grades to qualify for diplomas, they can render what is due to Caesar without abandoning true educational principles. Homeschooling parents can and should look for opportunities every day to engage their children on a Socratic level, and to use this and other means to probe their understanding.
The Way We Teach and Test Our Children Determines What and How We Teach Them
As we educate our children, we must keep Dr. Adler’s warning foremost in our minds: the way we test or examine our children, determines what and how we teach them. If we want our children to be moral and intelligent citizens, we must act as cooperative teachers that cause our children to discover the delight and wonder of lifelong learning.