After 3.5 years of slogging, I have finally reached the last semester of law school. I am on course for what I want, the prize is firmly in sight, and I want to go out on a high. This semester is crucial and I need to cement things.
This might seem a bit late, but I guess some self-troubleshooting and advice always helps, regardless of when it is dished out.
Regarding study…
- Quality not quantitative study – stop thinking that more time spent studying will necessarily result in better results.
- Think more and read less
- Speed is not quality.
- Do not be an intellectual snob – stop being stuck in your own paradigm, embrace and fully understand new views, learn learn and learn more
- Interact and synthesise the ideas of other writers to make your own unique view with its own justifications – being able to advance your own view is much better than parroting another person’s views
- Interact with the teacher – understand and interact with his or her point of view
- Speak up and shut up when you have to
- Lecture notes must be transferred onto my personal notes within one day of its making – do not stockpile lecture notes and transcribe them all at one sitting
Regarding computer habits…
- Do not play computer games. Period.
- Stop shuttling between work and the internet
- Check emails and IVLE only two times a day
- Visit my regular news websites only two times a day
Apart from these concrete advice, there is always the less tangible, affective and attitudinal aspects. I do not think that I am doing much wrong in this area so far, but it is worth stating explicitly the values and attitudes I think are good and/or I should display:
- Education is cultivation of both intellect and character.
- Do not settle for easy at the expense of cultivation and integrity
- Exercise the mind
- Passion – care deeply, without being blind and insensitive.
- Put in your best effort and create quality work – the quality of work is a reflection of the character of the person who did it
- Intellectual integrity – make sure that your views are your own and make an honest effort to understand and interact with the views of others, and admit and confront the limits of your knowledge.
- Humility – never think that you are always right. There is usually something to learn from others.
- Compassion – help other people who deserve the help; do not help those who do not help themselves
- Wonder – let the mind wander – think of possibilities
- Scepticism – challenge convention and always ask questions
This is it. School starts tomorrow and before I know it my law school career will be over. Here’s to a great last semester.
Filed under: diary, Law, philosophy | Tags: appeal, appeals, appellate cases, Dworkin, jurisprudence, law and philosophy, legal philosophy, philosophy, principles, Ronald Dworkin, rules
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.
Filed under: diary, Law, Lifeskills | Tags: book, ethics, experience, internship, Law, lawyer, manual trade, matthew b. crawford, matthew crawford, review, shop class as soul craft, shop class as soulcraft, value of work, white collar profession, work
It is by having hands that man is the most intelligent of animals.
– Anaxagoras
What follows is an attempt to map the overlapping territories intimated by the phrases “meaningful work” and “self reliance”. Both ideals are tied to a struggle for individual agency, which I find to be at the very center of modern life. When we view our lives through the lens of this struggle, it brings certain experiences into sharper focus. We worry that we are becoming stupider, and begin to wonder if getting an adequate grasp on the world, intellectually, depends on getting a handle on it in some literal and active sense…
The idea of agency I have tried to illustrate in this book is different. It is activity directed toward some end that is affirmed as good by the actor, but this affirmation is not something arbitrary and private. Rather if flows from an apprehension of real features of the world… [A person’s] individuality is thus expressed in an activity that, in answering to a shared world, connects him to others… For in fact we are basically dependent beings: one upon another, and each on a world that is not of our making…
We usually think of intellectual virtue and moral virtue as being very distinct things, but I think they are not…
– Matthew B. Crawford, Shop Class as Soulcraft: An Inquiry into the Value of Work
===
I love watching Bear Grylls in Man v. Wild, gallivanting around and successfully surviving in the wild. Just to be fair, I love Ray Mears in Survivorman too, for his tenacity and outrageous courage in living and filming his escapades in the wilderness absolutely alone. I love watching Mike Rowe in Dirty Jobs, explaining and unveiling the hidden world of people who do jobs that nobody else wants or dares to do. I love watching crab harvesters in The Deadliest Catch bring in cages upon cages of humungous Alaskan king crabs, braving the choppy, dark waters of the Bering Straits and working unending hours on the rain-soaked decks of crabbing boats in the unforgiving freezing rain and snow, and going back home to a warm fireplace and relieved spouses with their pockets full of cash.
What attracts me is the frank, refreshing honesty in what they do, and an immense sense of physicality.It is experience at its most intense and raw, and there is no fudging because the results are there for all and sundry to see. You either survive or you don’t; the crab count cannot be doctored. There is no reliance on easy talk and smiles, things that people will term as “charm” and “charisma” (but to me just exercises in hypocrisy).
Interesting enough, for all its merits and honesty, I find myself simultaneously a voyeur, peering over the edge into the hidden worlds of people who I know I will never find the will to emulate and society does not give sufficient respect, gratitude or attention to. A touch of fantasy and impossibility separates me from their actual worlds.
Fortunately enough, I chanced upon a book which articulates and analyses what was to me an instinctive gut feeling of respect and admiration and gives me the ah-ha! moment. In his paean to the manual trades Shop Class As Soul Craft, Matthew B. Crawford makes a compelling case for a new appreciation for the manual trades, and critiques the pieties of conventional conceptions of what constitutes proper work.
My reading habit tends to be influenced by my current situation. I Googled and Amazoned this book after reading about it in an article in Newsweek about work satisfaction while (rather aptly) commuting to work in a law firm in my white shirt and black pants. I found the Amazon reviews on Crawford’s book as well as Crawford’s article in the New Atlantis and NYT on the same subject interesting and relevant enough to warrant reserving the book from the library.
It did not disappoint. I was consistently able to relate to what Crawford had to say and compare it to my experiences as a legal intern. My prior uneasiness with and slight disdain for the majority of white collar jobs were articulated in logical argument.
In a nutshell, Matthew B. Crawford dispels notions that the manual trades do not engage the intellect and provide meaningful jobs that are stable and sheltered from the threat of outsourcing. In fact he argues that the blue collar trades . In doing so, he also critiques the current job landscape and the workplace’s tendency to dehumanise and ignore the intrinsic needs of humans, which include the need to see the tangible effect one’s work has on the world and fidelity to and fulfillment of objective standards and ideals.
The tradesman’s work is psychically and emotionally fulfilling. As Crawford points out, one of the central problems of the modern world is the lack of individual agency. Office workers feel as if they are mere cogs in a machine, with little or no power to shape their immediate reality and no tangible fruit of their labour to show. A mechanic in contrast sees the actual fruits of his labour, in what Crawford terms as the “overlap” between the “community of consumption” and the “community of work”. The small town furniture maker sees his product put to good use by the community and is enlivened by it; such a job caters to the basic human need for “rational activity, in relation to others” that serve a greater community good and need.
By the sheer nature of the work of a manual trade, a practitioner is a true student of his trade. He cannot fix a machine in his mind, and neither can he go guns blazing into a repair job without a measure of theory. He has to understand theory in the abstract and confront reality where theory often has to be adjusted or even discarded in order to achieve the goals of his trade.
Such work affirms the individual’s sense of Emersonian self-worth and situates him within a larger ethic and purpose, the sort that nourishes a soul and gives direction and stability to lives. In Crawford’s words:
The satisfaction of manifesting oneself concretely in the world through manual competence have been known to make a man quiet and easy. They seem to relieve him of the felt need to offer chattering interpretations of himself to vindicate his worth. He can simply point: the building stands, the car now runs, the lights are on. Boasting is what a boy does, because he has no real effect in the world. But the tradesman must reckon with the infallible judgment of reality, where one’s failures or shortcomings cannot be interpreted away. His well-founded pride is far from the gratuitous “self-esteem” that educators would impart to students, as though by magic.
This book is also an exercise in breaking misconceptions about “menial labour”. The phrase suggests that such jobs do not engage the mind and are merely automated tasks that anyone can perform, and that such jobs are low status jobs. The former is not true since the mechanic must have a close understanding of his work in order to be good at it, but the latter is unfortunately a fact that is sadly dependent on prevailing social perceptions rather than any objective criteria.
Contrast the work of a skilled practitioner of a manual trade with the work of an average paper pusher in the office. The best and most accessible representation of the plight of the office worker is probably the Dilbert comic strip.
The world of Dilbert, with its crazy unfeeling bosses, excruciating boredom and inane bureaucracy is alarmingly close to real life. Life in a cubicle can be existentially absurd. We work with people we would not normally interact with in life, and chains of hierarchy command our uneasy relationships. There is silence, and very often boredom. Work is done mostly through impersonal emails and on paper. An intense sense of purposelessness, of “why am I doing this?” and “what am I doing here?” pervades work.
The advancement of the modern economy is very much predicated on the phasing out of physical jobs and its substitution with modern “thinking” jobs. However this comes at great social cost. People are essentially lost as cogs in machines; they do not know the effect of their work and the standards to which their work are judged (if they exist at all). If such standards do exist, they are usually so vague that they serve as nothing more than public relations material or useless platitudes. The cubicle dweller has trouble explaining in any degree of meaningful detail what exactly he is doing, without resort to jargon and artificial phrases. The lack of a clear standard through which to measure work results in irresponsibility since no one can be said to be underperforming or doing things wrongly, and this perpetuates immorality.
Crawford notes the modern tendency to separate thinking from doing in the white collar working place. Whatever can be done mechanically in a job is farmed out to “lower level workers” while thinking is the dominion of the supposedly highly-qualified intellectual class with their scores of degrees and qualifications. However as mentioned above, true learning comes from the synthesis of both theoretical learning and actual doing; the student that is only introduced to theory has a half-baked understanding of a subject and fails to appreciate the subject adequately.
The cubicle worker is in essence a hopeless idiot. Not in the derogatory, colloquial sense of the word, but in the sense that the word is used by Robert Pirsig in Zen and The Art of Motorcyle Maintenance and interpreted by Crawford: an idiot is a person who does not see his work as part of an involvement with something outside of himself, of larger concern and universal quality. An idiot teacher would only care about whether he has adhered to issued instructions from school authorities; he would not see that he is entrusted with the important task of expanding young minds and the need to maintain a personal concern for each individual student. An idiot is at bottom, to quote Crawford, a “solipsist”, that is a selfish person who only thinks about his own views.
Crawford posits that intellectual and moral virtue are in fact entangled. The mode and level of cognition that pervades our work determines the moral quality of the person. If a job reduces you to a mere instruction-following cog in the machine (e.g. the ubiquitious zombie helpline worker who can chant pre-written responses to genuine queries and problems without ever taking a real interest in the plight of the caller), chances are that your sense of morality and care for others will be reduced somewhat too. The current economic crisis is testimony to the destructive potential of such a pernicious approach to jobs; bankers respond only to cold profit while investment salesman see their role only as conduits for passing on poisoned investment products rather than the guardians of the financial well-being of their clients. They see themselves as cogs in a chain that foists financial products on the unsuspecting public, and their better judgment and perceptions are suspended. Crawford terms this as a process of “learned irresponsibility”, since responsibility and concern for others is the bedrock of most ethical systems. If this is true, the perceived degradation of the moral character of the modern man can be linked to the increased mechanisation and depersonalisation of jobs.
The predicament confronting the modern cubicle worker reminds me of various characters of some fine books I had the privilege to read. Biff and Willy Loman in Death of a Salesman are probably the most striking examples. I tried to relate what I read to characters and people I knew, and these two sprang immediately to mind.
These are two characters who are hopelessly out of place in their materialistic society. Biff used to be a star quarterback and dreams of working in a ranch with his hands, but instead caved into pressure from his father to find a way to a job behind a corporate desk. Willy loves tending to his garden and really should find a job as a gardener, but instead he fell prey to the delusions of thinking that everyone should find a job in sales and live the high and successful life and embarked on a failed career as a traveling salesman. They have submitted to social pressure and sacrificed their better selves at the altar of social misconceptions of what constitutes proper work.
I believe that Biffs and Willys can be found everywhere in the world. We can see shades of them in ourselves and others. These characters, like many paper pushers, struggle in the modern working climate, which fails to nurture the best in men and fulfill our psychic and emotional needs. One particular phrase used by Crawford seem particularly appropriate here; to paraphrase Crawford, while “every job entails some kind of mutilation”, it is important to make sure that “none of this damage touches the best part of yourself”. A firefighter runs the risk of burns and bruises, but he does so because he is engaged in the noble and fulfilling endeavour of saving lives. However a modern cubicle worker might find it a struggle to state what exactly he is sacrificing time and his mental health for. Some things are simply too precious to be damaged, and many jobs in fact do just that.
Crawford’s writing sheds much light on my current situation. I am a law student, and if all goes smoothly, I should be starting a career as a lawyer soon after I graduate. However even before starting my career, I am able to see how lawyering has the potential to be at bottom unfulfilling and uncongenial to the better parts of one’s humanity. Since being a lawyer is one of the quintessential white collar professions, Crawford’s critique can almost be fully applied to lawyering.
My chief experience as a legal intern was that to be a lawyer is to live life by proxy. Instead of being a businessman, lawyers aid businessmen in their endeavours, be it through drafting merger and acquisitions documents or negotiating terms of sales and purchase agreements. Instead of playing a sport, lawyers act for sportsmen. Instead of nurturing brands, lawyers are engaged in intellectual property work. It feels like an opt out, and whenever I hear fellow students that say they love the sea and hence they want to go into shipping law, I roll my eyes. If you really love the sea, why not be a sailor? Or a fisherman? Anything that actually gets you into direct contact with the object of fascination itself.
Seen from a more negative light, lawyers are mere cogs in the machine of commerce. They are conduits, the lubricant that allow things to move more smoothly. And they are paid a lot and work obscenely long hours, to do things that are not explicitly productive. There is no furniture at the end of a working day or project, except for maybe a few documents, and I bet that lawyers have a tough time explaining their work to any common person. The doctrines of consideration and undue influence are artificial, without any anchor on concrete reality.
Is there then some connection between the unfortunately emerging phenomenon of errant lawyers absconding with money and the nature of the job? Ethical standards exist for the lawyering profession in Singapore, but professional standards seem to be open to interpretation, and bending. There is really no correct way to draft a contract, or to make an argument in court. Subjectivity pervades the profession, and this is perhaps a reason why lawyers get jaded, and in the worst cases, downright immoral. Without the anchor of the sense of responsibility arising from being held to an objective standard and adhering to a larger ideal, lawyers tend to lose their internal moral compasses.
Till the day I finally reach some sort of congruence between my professed admiration for physical, tangible work and my chosen lawyering path, there remains a blotch of uncertainty and self-conscious hypocrisy confounding my heart and mind.
Sources
Matthew B. Crawford, Shop Class As Soulcraft: An inquiry into the value of work
The original essay from the New Atlantis: http://www.thenewatlantis.com/publications/shop-class-as-soulcraft
Matthew B. Crawford, “The Case for Working with Your Hands” in the NY Times: http://www.nytimes.com/2009/05/24/magazine/24labor-t.html?_r=1
Fukuyama’s review of the book: http://www.nytimes.com/2009/06/07/books/review/Fukuyama-t.html
Filed under: Law, Lifeskills, skills | Tags: adam robinson, how to study, notes, study skills, what smart students know
Notes from What Smart Students Know by Adam Robinson
A useful book for students who are already putting in the hard work but have not awoken to the realities of study. This book helps those who need some direction and finesse to complement brute effort, but is not very useful for anyone who already appreciates the need to read smart and organise well.
130708
—
It seems pretty late to do a review of the past academic year but due to a flurry of jet-setting and odd job assignments I have to postpone such a grave matter to a more sober and quiet moment, like now. This coming 10 or so days will be my oasis of calm in a holiday period filled with trips, trips and trips (with the time-consuming odd jobs stuffed at the start) and hence it is an appropriate time to recollect what went well the past academic year and decide on a course of action for the new academic year which starts two days after I come back from backpacking across Vietnam.
A book written by a law and economics guru, Professor Ian Ayres of the Yale Law School. The central thesis of the book is that there is a growing trend for the common people, academics and businesses to utilise statistical predictive models in making decisions, instead of relying on pure intuition. This trend is partly due to the inadequacies and inaccuracies of utilising intuition and relying on “experts” and the development of powerful computers that can crunch numbers quickly. Concomitantly, statistical methods seem to be much better predictors than the naked human mind.
American law schools are the biggest proponents of interdisciplinary approaches to the study and advancement of the law and law and economics is probably the hottest of the palette of mixtures available. This approach is just starting to take root in Singapore with the offering of double-degree programmes in law and business, law and life sciences and of course, law and economics of which yours truly is in one of the pioneer batches, amongst other combinations. Reading this book gave me the impression that American law professors are much more broader in their thinking and they have a wider intellectual range that encompasses the ability to blend issues from other disciplines into the law and allows them to write outside of the narrow legal academic circumference.
I am of course a biased observer but I do believe that an interdisciplinary approach is the right way to go. Currently my impression is that the law is unhealthily focused on language, interpretation and argument; the rigour of applying empirical techniques that once belonged to the domain of science and the “harder” social sciences would serve as a complement. It would be great if courts accept economic arguments and statistical analysis when deciding cases that primarily turn on “intuitive” issues like public policy and morality. The law exist to govern human actions and promote the social good; adopting methods that aid decision-making helps the law achieve its aims.
The application of mathematical methods will serve to remove much of the vagueness and uncertainty of intuition and allow the courts to come to more definite answers. For example, in determining compensation when a victim of a car accident sues in tort, cash flow analysis that takes into account inflation and growth in earnings capacity can lead to a fairer prediction of the amount that the victim is allowed to recover compared to a purely intuitive, arbitrary number determined by the judge.
As suggested in the book, regression analysis can be used to test the effect of laws that are implemented. For example, the current big issue here pertains to Article 377A of the Penal Code and whether it is archaic and should be abolished. Any Tom, Dick and Harry can say whatever they want about the arguments for and against the abolition of 377A, but to me, the argument ends there. The argument that abolishing 377A will lead to more homosexuals in society to me is as appealing on a logical level as the argument that abolishing 377A will lead to more equal rights for all members of society. It’s really anyone’s game and anyone can make a perfectly acceptable argument against and for the abolition without any real proof of whether one side is better than the other.
Applying empirical statistical methods to the situation will help decisions. It provides a means of testing the validity of a statement. Of course, it sounds Machiavellian and crazy but one way to test if abolishing 377A will indeed lead to more gays in society is to abolish it, collect data subsequently and apply regression analysis to see how this one factor affects the number of gays. Alternatively, bearing in mind that social situations differ between different countries and cultures, one can utilise data from other countries which have done the same and do an analysis of it.
The point here is that crunching numbers allows decision makers to weigh options and test statements. It does not totally remove the role of intuition and choice and reduce the decision-making process to a purely mechanical one, but it does lend a degree of objectivity that can weed out and expose opinions made solely on emotive grounds. Rather than merely speculate in one’s mind the impact of a decision of a court of law in ruling in a particular way, more weight can be given to options that are proven statistically to work better.
—
Moving on to less dreary stuff, here are some interesting ideas and trends that I have picked out from the book:
1) The rise of data crunchers – Data gets more expensive
Companies that aggregate raw data and help businesses crunch data will become more numerous and profitable, with the change in the way businesses make decisions. Data will become more valuable as consumers and businesses alike start to recognise the usefulness of crunching numbers and pay good money for it.
2) Economic efficiency
I am a bit iffy about whether crunching numbers can lead to overall social benefit and economic efficiencty. The jury remains out on this issue. Consumers seem to be exploited by companies that utilise these methods to maximise profits. One example stated in the book that of a airline company that calculated the “pain level” of service that will lead to a customer switching to other airlines; once the optimal level is arrived at, the company can just pitch their level of service to that particular standard and keep the maximum number of passengers without being required to continually improve services, which is desirable from a consumer point of view.
Conversely, the argument that consumers themselves can utilise these techniques to protect themselves against businesses is not as strong because consumers are less equipped intellectually and resource-wise to crunch numbers and predict prices to aid themselves. Even though the book provides the examples of how some organisations and websites have gathered information and crunched data on the best time to say, book flights for the lowest rates, the problem remains as these entities remain organisations and not individuals. One cannot expect an individual consumer to spend the time and effort to crunch their own numbers to avoid being duped at the cash counter.
3) The distinction between forward and backward crunching
Backward crunching is when historical data not purposely gathered and created by the user is statistically analysed. This analysis is much more difficult given the lack of control groups and the myriad of factors that can affect variables.
Forward crunching is when the user actively engages in “experiments” with control groups and surveys and gather data for analysis. This is what happens with Google when they send out random ads to test which arrangement of words lead to the greatest clicks. Information is gathered in a structured way and the impact of changed variables is analysed through the data.
151207
One disturbing yet fully understandable observation I made while studying the law is the unavoidable reliance of the law and our common law system at least on word definitions and interpretation. Legal concepts are at theirs roots abstract creations, and by embodying it in language the problem of interpretation and definition arises in such a way that it creates uncertainty and much room for exploitation. The inherent slipperiness of language lends itself to judges interpreting words in the light of their own moral values while hiding behind the cloak of objectivity that the law itself is suppose to stand on.
I contend that in this aspect at least, the law necessarily stands on wooden stilts. However the limitations of language and practical reality make it impossible to ever provide definitive and unambiguous legal rules.
Being just a first year student, I naturally cannot make any substantive and well-informed comment on the law outside of what I have studied. Hence my focus here is on contract and tort law. Even though I have studied these substantive law subjects, I can scarcely be considered to be well-versed and what comment I make must be seen in this light. That said, I do believe that a law student, as with any other student of other disciplines, is in a position to make at least a personal and rational observation of what he or she studies. While my main concern here relates to language, my comments will inevitably flow into other concerns.
The inherent ambiguity of language leads to uncertainty and offers room for conflicting interpretations that might lead to unfairness and the bane of subjectivity.
The concept of a duty of care in the tort of negligence is a prime example. As far as I am concerned, the fact that I cannot find a single sentence that defines what is a duty of care in any textbook that I have consulted is a indication of the inherent abstract and amorphous nature of this concept. The evolution of the various tests for a duty of care is evidence of the law’s struggles in coming to a precise definition and framework for determining a duty of care.
Even with the new test established in Spandeck Engineering Pte Ltd v DSTA, the ambiguous nature of what is “proximity” and “policy” remains. While the learned CJ did point out the factors stated by Deane J in Sutherland Shire Council v Heyman like “assumption of responsibility”, “reliance”, “causal proximity” and “circumstantial proximity” as some factors that might be seen to fulfill the requirement of proximity, it remains that firstly the factors are inexhaustive and not definitive, and secondly the issue of word interpretation still remains. What is “reliance”? What is “causal proximity”? Such concepts are totally reliant on how the judge perceives a particular set of facts to entail. What seems to be reliance to one is not to another.
The concept of proximity is largely ambiguous largely because this concept involves subjective questions of value and morality. To say that a person assumed responsibility is to state a value judgment. One of my lecturers was dead right when he commented that the reason for the confusion over the test for duty is that proximity necessarily overlaps with concepts of fairness, justice and policy. Lord Denning got it right when he stated that issues of causation, duty, the standard of care and remoteness are at root questions of policy and value judgments in Spartan Steel & Alloys v Martin & Co.
Even though the court in Spandeck saliently pointed out that the requirements of policy and proximity should be clearly delineated and judges should clearly express reasons separated into the two categories so as to not leave lawyers wondering whether a judge has unexpressed motives behind a judgment which is cloaked under the banner of proximity, the same problem remains because such decisions are made from a subjective, unconscious level. Proximity remains a question of both fact and value.
The crucial question is, what can be done to make things clearer? Can better words be used to enunciate and give life to a concept? I doubt so. I think that what can be realistically done is to show what is NOT within the ambit of a concept through the development of case law. Take the modern “radical difference” test for the doctrine of frustration to operate in contract law. The phrase is open to a multitude of interpretation, but the existing case law gives solid insights into what is not frustration. Reduced profitability (Glahe International Expo AG v ACS Computer), onerous performance (Davis v Fareham UDC) and the possibility of alternative methods of performance (Tsakiroglou v Noblee Thor) are not frustrating events. But we still do not know for sure what IS frustration, within the context of the “radical difference” test. It remains an open-ended question. The question still remains one of linguistic interpretation of what is “radical difference” within the framework of facts. Giving more words or different words for the same test will only lead to the same question and ambiguity.
This manifest uncertainty has gone quite a bit to inculcate a profound weariness and cynicism in me about whether the law can provide a framework of certainty to human relations and offer justice at all. It seems that the law is basically an exercise in wordplay and subjective opinion. Crucial words like “proximity” are interpreted and applied to facts to decide cases but they offer no certainty. Judgments that are made based on the private emotions and values of judges cloaked by a veneer of objectivity through concepts embodied by words like “proximity”, “assumption of responsibility” and “policy”.
The unnecessary overuse and verbosity of language in judgments is a serious yet laughable problem. Generations of law students, practitioners and academics spend hours and hours poring over and dissecting the speeches of judges to uncover slivers of truth in the mountains of inanity and unnecessary words. At the root of this problem is the inherent inscrutability of what is being said, the excessive use of words to express what seems to be intended, and even if the speeches are clear, there is significant room for diversity of interpretation.
At the risk of sounding flippant and disrespectful, I believe that much pain and inconvenience can be obviated by teaching judges to consolidate their judgments into one, clearly expressing and identifying their opinions as personal opinions when they are, and practising self-editing and summarising. I sincerely believe that the same can be said with a lot less.
This is especially evident in the English cases that I have come into contact with in my studies. At best, all judges agree and there is one leading speech. At worst, 7 judges do not agree unanimously and when they do agree, they agree on the same holding through different reasonings. At many instances, judges say similar or identical things. I believe the Singaporean way in which one judge gives a consolidated judgment that is succinct and appropriately summarised leads to greater efficiency and better justice. Simply put, being clear makes better law.
Don’t get me wrong, I am not a fan of narrow thinking and sterility of thought. The dialectic nature of the law, especially common law, is the beauty of it. It adapts and changes through distinguishing and applying cases. However, my contention is that this same purpose and goal can be achieved much better through a consolidated, one judgment system where conflicting counterarguments can be incorporated into the single judgment.
The cult of hero-judge worship is to me a unhealthy corollary of this problem of excessive language. One need not look further than Lord Denning as an example. There is no doubt that he was a brilliant man and a great judge that had served to improve and develop the law, but perfection is not a human trait. While his speech in Miller v Jackson might exude poetic airs, realistically speaking it serves no purpose in developing the law.
In my perspective law is practical philosophy, and philosophy is arguably a linguistic exercise in which we as humans are limited not so much in thought but in the words we can possibly use to express ourselves. Wittgenstein probably hit the nail on the head in his summary of his famed Tratatus-Logico Philosophicus, where he opined that what can be said can be said clearly while what cannot be said must be passed over in silence. Applying this truism to law, it follows that what can be said in a judgment can be said clearly and succinctly within the limitations of language used to express abstract legal concepts. Language is all that we have and its inherent ambiguity and inadequacy are characteristics that we have to live with.
Filed under: Law
Notes from The Law School Rules by Martion T.D. Lewis Continue reading
Filed under: Law
Here are some law exam tips I have collated from various sources… of course, the names of the people who said them are deliberately withheld. I hope this helps some struggling law students as much as it has helped me.
Exam techniques – 291007
TEC:
- critique question
- · respond to question and know what the question wants out of you
- · let teachers know your stand
- · unique questions: “advice a judge in changing X law”
MF:
- · Torts: 2.5 hours, 3 questions, answer 2
- · Divide time, plan, focus
DF:
- · Use the approach that works for you
- · 3 key approaches
- · 1 – identify the issue – hardest thing
- · Understand the material, don’t memorise
- · Practise problem questions
- · Practice identifying issues
- · Always get some law in there
- · Do it in a punchy summarized form
- · Summarise the laws
- · Have a summary of the law in your head
- · Facts are where the real marks are
- · Analuse the facts
- · Each question has key facts – highlight them
- · When making arguments, think of counter arguments
- · Apply and distinguish analogous cases
K:
- · Distinguish yourself – make creative arguments, make good arguments
- · Look at relevant legal principles
- · Look at relevant facts
- · Ask how to apply law to this set of facts – make arguments/ counter arguments
- · Time management is important
- o For the first ½ hour, don’t do writing
- o Think about which questions one can do best, and pick them
- o Do a skeletal answer – map out issues, don’t just start writing
- o Be in control – don’t miss out issues
- · Do a lot of preparation – hard work is inevitable
- · Bring succinct summaries into exam
A:
- · 4 questions, at least one essay, hypotheticals as well
- · Content no absolutely important: think like a lawyer
- · Encouraged to have some sort of intro in an essay
- o Stance to be expressed in opening paragraph and ending too
- · Put yourself in the shoes of the examiner
- · Distinguish yourself – individuality can be an asset
- · Set existing law clearly
- · Take your position on it – innovation/creativity comes in
- · DON’T HAVE THE SAME ANSWER AS EVERYONE ELSE!
Filed under: Law
I can’t believe this. I am opening a new section on my blog that deals with studying law. Use these notes at your own peril. Enjoy.
How to Write Law Exam Answers
Personal notes made with reference to Legal Reasoning And Legal Writing by Richard K. Neumann, Jr.
What a teacher looks for
- Your understanding of how to use the rules
- Your understanding of what the law is trying to accomplish with them
Two kinds of questions
- Hypothetical situations
- Response to issue/statement
Rubric of grading: what a teacher looks for when marking
- Issue spotting
- Knowledge of legal rules
- Ability to analyse and solve a legal problem in depth
Reading hypotheticals
- 1st read: See the big picture, read from beginning to end without using your pen.
- 2nd read: Underline important things and make notes in margin.
- 3rd read: Make a list on scratch paper all the issues present in the question, note relevant facts under each issue picked out.
Dealing with facts
- Ask yourself why a fact is there.
- 4 reasons why a particular fact is in the story
o It creates or helps to create an issue because it is inconsistent with another fact or appears to be inconsistent with the law.
o It helps to resolve an issue because it shows whether element(s) of the rule is satisfied.
o It is a red herring.
o It has no legal value and just helps to tell the story.
Dealing with the issues listed – make an outline
- Look at issues individually
- Write down what rules are necessary to resolve the issues
- Decide the sequence in which the issues are to be discussed
Writing format for dealing with each issue
- State the issue
- State governing rules. Rule proof is usually not necessary.
- Apply rules to the facts. Use additional rules as needed.
o Show intellectual depth by explaining how your analysis is consistent with the policy behind the rules and including a counter-analysis.
- State your conclusion.
- Acronym: IRAC: Issue, Rule, Analysis/counter-analysis and Conclusion.
Important points
- Explain reasoning fully. Explain why you are right and why some cases support your conclusion while other cases/rules are not used.
- Red herrings can be to your benefit: point them out and show how they are irrelevant to the rules/issues.
- Be explicit: teachers look for points and mark accordingly. Not showing = no points
- Answer the question. Nothing more, nothing less.
- Don’t waste time writing on background matters unless it is required to answer the question.
- Budget your time.
- If you make an assumption, deal with it. Recognise the gap and show how it can be resolved.
ad astra per alia porci 