ad astra per alia porci


the edge of creation

At a recent dinner with my secondary school class and form teacher, I commented that studying law is easier than philosophy. My friends were quite surprised since law is commonly perceived as an exacting and tough subject to study, in comparison to the “fluffy” humanities. They did not pursue the issue and ask for my reasons.

I really do think that as an academic discipline, law is easier than philosophy. I might not have engaged in the study of philosophy for my entire undergraduate career and indeed I have in fact studied much more law than philosophy, but I think that I have enough experience to give an informed opinion.

It is important to explain exactly what I mean when I claim that it is “easier”. In what way is it easier?

Studying law is easier than studying philosophy in the sense that one can become proficient and adept in law through sheer hard work alone, while the same cannot be said of philosophy. The law is in essence a closed set of explicit rules and principles that, when applied to particular facts and cases, will yield certain results. These rules and principles are all readily found in the textbooks, statutes and legal cases. If one knows and understands the technical machinery of the law, one becomes proficient in the law. It does not take a lot of innate ability to become proficient at the law; it takes only a strong will and hard work. If a student is less adept with language or learns at a slower pace than another student, that student just needs to put in more effort and she will get there eventually.

Something more is required for philosophy. Philosophy has no concept of precedent. Aristotle might be a great philosopher but he has no special claim to the truth by virtue of his reputation and authority alone. His words cannot and must not be taken as absolute truth. Instead, philosophers looks for reasons and arguments that support or run against propositions and subject them to critical analysis. The field of possible arguments are limitless. This lack of limit translates readily to creativity. Philosophers have to perform mental acrobatics and challenge pre-existing presumptions, finding new and viable ways to make good arguments or destroy unjustified belief.

In contrast, for law, the arguments that are required in the conventional cases that may be resolved by pre-existing legal principles and rules are limited by precedent. Certain arguments cannot be made while certain other arguments must be made. There is a correct answer, and all we need to do is do sufficient leg and mental work to find it out.

So far I have treated the study of law as limited in its application to the “easy” cases. What about (to use Dworkin’s term) the “hard” cases which existing legal precedent do not cover and the court has to fashion new rules of law and/or reject existing rules? I readily concede that we see more creativity in the hard cases, because there is no existing legal rule to be applied and a new rule must be fashioned. However, this creativity is not limitedless, as would be the case in philosophy. Dworkin’s interpretive approach to law reveals this. Dworkin suggests that in the hard cases, the judge must seek to fashion a rule of law that presents the entire corpus of law in the best light possible. He calls this approach “constructive interpretation”. Constructive interpretation requires the new legal rule to both fit the past corpus of legal rules as well as bring the law to where it should be. It must be noted that under this view, the new legal rule in hard cases must show respect for past precedent. Hence in this way, the kind and form of legal arguments that may be raised in support of particular new legal rules are still limited in some way by what exists already in past precedent. It is perhaps less limited as compared to the situation in easy cases, but it is still limited.

Personally, I like the challenge of hard legal cases. I like the creativity required, the room to wander intellectually and the opportunity to construct from existing material as well as non-legal material coherent and sustainable arguments in support of new legal principles and rules. I like the tension between respecting precedent and testing legal boundaries. The easy cases fall within the comfort zone of law students and are correspondingly unexciting. It is in the hard cases, at the edges of legal creation, where the really exciting and demanding things are done. I tend to think of this as the legal equivalent of a geological phenomenon: the creation and destruction of land through movements of tectonic plates. When the tectonic plates of the Earth move against or away from each other, existing land is destroyed and new land is created. Similarly, in the hard cases new law is created and old law is destroyed. I have always regarded the edges of the law as particularly interesting, engaging and intellectually exciting since opportunities abound to create better laws and destroy bad ones.

This is the reason why I specifically chose to do my pupillage in the appellate department of a law firm. I hope that I will be engaged in appellate cases, so that I can stand at the edges of legal creation and contribute in some way to the creation of good laws and the destruction of bad laws.  I think that practising in this area of the law will be intellectually and spiritually fulfilling, and I certain hope that I am not wrong to think so.

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