美国法律教育简析 葛维宝 蒲杰夫
本文来源于《中国改革》 2010年第6期 出版日期2010年06月01日财新传媒杂志订阅http://service.caing.com/magshop/
法律教育是重要的也是困难的。之所以重要，是因为法律本身是如此重要并且渗透于公共政策和人类生活的方方面面。之所以困难，是因为解决法律争议并建立良好的法律制度困难重重。对那些从事并努力完善法律教育的人们而言，这些挑战也是巨大的机遇。美国法律教育的目标是巩固社会和构筑国家未来。正因如此，一个强大的法律制度和法治社会也堪称美国的核心国力之一。法律教育是培养未来不同行业与领域内的领导者。他们中只有少数会成为美国总统、内阁部长、首席执行官或是社会组织的领导者，但是他们都应当有能力为社会作出贡献。 葛维宝（Paul Gewirtz）为耶鲁大学法学院教授、耶鲁大学中国法律中心主任
http://english.caing.com/englishNews.jsp?id=100149077&time=2010-06-01&cl=111&page=all Point of Order –Why Legal Education Matters
By Paul Gewirtz and Jeffrey Prescott
As law and lawyers are playing a bigger and bigger role in China's development and society, it is not surprising that new attention is being given to legal education and to law schools in China. Clearly a wide-ranging debate, bold experimentation, and new thinking will be necessary as China retools its legal education system to help train the next generation of legal professionals. Perhaps some ideas from the American experience may be worth reflection.
Americans know and expect that many senior government officials will be graduates of leading U.S. law schools. President Obama, Vice President Biden, and Secretary of State Clinton all have law degrees. When President Obama meets with his full "Cabinet" – the heads of all the major U.S. government departments – 40 percent of those in the room have a legal education. Indeed, 25 of our 44 American Presidents were legal professionals. A significant percentage of U.S. corporate CEOs are former lawyers, and many social organizations were founded or are directed by someone with legal training. Law schools in the United States prepare their graduates not on
ly to practice law and teach law, but also to play leading roles in government, in business, in foreign affairs, and in the full range of institutions that influence policy and society.
Why is legal education so imp
ortant in the U.S.? Our legal institutions are far from perfect, but we see law as central to advancing our economic prosperity, maintaining our social stability, securing our liberties, and building a more just society. Law schools are imp
ortant because law and legal institutions are imp
ortant. Legal education in the United States, then, is the training ground for America's future.
Legal education should prepare people for the roles they will play after law school. This apparently simple idea actually creates a daunting challenge for legal educators, and not simply because lawyers play many different roles. Law teachers can be certain that many – perhaps most – of the current legal rules will change during their students' careers. New areas of law are sure to develop. For example, in the United States 20 years ago, who could imagine that there would be laws of cyberspace, laws regulating then-unknown complex financial instruments, or laws of bio-ethics in medical practice? Similarly, in China, the law today is very different from what it was 20 or 30 years ago – and we can confidently predict that the law will continue to change rapidly in China. Thus, the best lawyers usually work on matters where the legal issues are complicated, the answers aren't clear, the strategies for prevailing aren't obvious, and the stakes are high – they work on the frontiers of legal development and legal practice. They need to be "problem solvers" where the relevant factors in the "problem" are not numbers but complex people and institutions and evolving legal rules.
Our experience in the United States is that the best legal education trains students to "think like a lawyer." What does this mean? It means that a good program of legal education should give students skills that, experience shows, will enable them to address legal problems effectively: (1) to think critically; (2) to think not just about what the law is, but what it should be; and (3) to use reasoned argument as a method of persuading others.
First, good law schools help students develop the habit of critical thinking. Critical thinking means asking questions about everything – the facts, the legal rules, basic premises, hidden assumptions, logical steps, what seems inevitable and what is possible to accomplish, what is the best result, whether other people's ideas are right, whether on
e's own assumptions are right. The best legal education challenges students to ask probing questions because this is essential to almost everything lawyers do. The best legal education is as much about teaching students how to ask good questions as it is about providing specific answers.
Second, since the best legal education anticipates that the students' careers will not involve just routine matters, legal education should engage students in discussing what they think the law should be, as well as understanding what the law is now. Law students need to keep the functional purposes of law in mind, not just its formalities, and should develop the tools to question whether the purposes of particular laws are the right on
es and whether the law's purposes are actually being realized.
Just as imp
ortantly, good law schools should address questions of what "justice" and "the rule of law" require, since these are the ultimate goals of a good legal system. They should be part of the analysis whenever novel legal issues are presented for resolution, and a motivating force in legal reforms. Of course, the meaning of "justice" or "the rule of law" can be complicated and debatable. But discussing and debating these ideas should be part of legal education. Indeed, legal educators should encourage law students to use their professional skills to contribute to the good of society. If legal professionals do not feel a responsibility to contribute to the rule of law and to promote justice, who will? And since lawyers are deeply enmeshed in the complex real world and are not immune to its temptations, particularly when the stakes are high, the best legal education should prepare students to act ethically, and think about difficult ethical and moral challenges. (In the U.S., this task is easier because law is a graduate education program: law students have already completed a four-year undergraduate degree in some other field before starting a three-year law school program. Many students have worked for several years before entering law school. So students come to legal education with a diverse set of background values and educational experiences.)
A third aspect of "thinking like a lawyer" is to recognize that not everyone starts out sharing on
e's own point of view. To be effective as a lawyer means learning how to persuade other people with reasoned argument and analysis. The best legal education trains students to reason persuasively. Law is a culture of argument, in which lawyers are constantly engaged in a reasoned, back and forth effort to persuade others. To be persuasive typically requires an understanding of where other people are coming from so that on
e can shape on
e's arguments to their concerns, not on
How do law schools build these imp
ortant intellectual skills? It starts with the classroom and private study. Since the core of legal education is training in ways of thinking and analysis, hard work in reading, speaking, and writing are ideal ways to develop those skills. The best legal classrooms have active discussion and dialogue, not just lecturing. The law school classroom is the place where the skills of critical thinking can be practiced by the students and also modeled by their teachers. Students' private study should also be active rather than passive – constantly interrogating what they read rather than just memorizing it – and students should see dialogue with their peers as key to the learning process.
Law schools in the United States and elsewhere have also learned that there is great value in providing law students an experiential element in the course of their legal training – an exposure to real cases, real clients, law-in-act
ion. This is typically done by "clinics" [诊所] that are now a central part of every major U.S. law school. These clinics expose students to the real life of the law – not on
ly as observers, but also as practitioners-in-training. Clinical legal education helps introduce the idea that lawyers can make a social contribution, since the clinic's clients are often disadvantaged persons who could not otherwise afford legal services. American law students typically find clinical education an invaluable part of their training and an enjoyable supplement to the classroom.
Good legal education also includes an emphasis on research. The best law teaching reflects the scholarly impulse to think deeply and probe critically, seeking ways to improve the law and not just to summarize it. The best legal scholars – and the best law teachers – combine theory and practice. They combine idealism about how law can be improved with realism about what is possible. Their knowledge of law is often informed by other disciplines, such as economics and political science. We sometimes hear complaints in the U.S., and we are sure they are heard in China too, that legal scholars sometimes make proposals that are not "completely practical." But legal practitioners, including government officials, are often "too practical." They can be so focused on day-to-day practical affairs that they do not think enough about improving the system of justice. Legal scholars are a tremendous resource for a legal system and giving them time and space for free inquiry is very much in society's interest.
Legal education is imp
ortant and difficult. It is imp
ortant because law itself is so imp
ortant and pervades so much of public policy and human affairs. It is difficult because addressing legal issues well and building good legal institutions are difficult. These challenges create tremendous opportunities for those who work in the field of legal education and try to improve it. Legal education in the United States is about strengthening American society and about America's future, for the same reason that a strong legal system and the rule of law have been central to America's strengths. Legal education is about training people who, in many different ways, are future leaders in their society. On
ly a few will become President of the United States, a Cabinet Secretary, a CEO, or a leader of a social organization, but they all can develop skills that contribute to their society.
Paul Gewirtz is Professor of Law and Director of The China Law Center, Yale University; Jeffrey Prescott is Deputy Director of The China Law Center, Yale University.