Roderick MacDonald argues that a legal studies programme should be a core component of every great university. The questions there pursued better enable the university to defend itself against its enemies, both external and internal.
The modern university is under assault. We know the usual suspects: Governments suspicious of all sources of information and analysis they can’t control; Business enterprises that claim graduates know nothing of importance and have no marketable skills; Trade unions that see universities simply as elite institutions serving an exclusionary class system; Religious and cultural minorities, whether of long residence or recent arrivals, for whom equal access to higher education is a myth; Newspaper publishers seeking an easy target to bash. Some of these critiques speak truth though many do not. All need to be addressed, although few are.
But the greatest threat to universities does not lie in criticisms voiced by those outside its doors. The threat is internal. It is a disease. Students, faculty, support staff, academic administrators and Boards of Regents have caught the virus. And like all viruses, it propagates itself best when certain conditions are present. The virus must be virulent. All the better if unrecognized and unnamed. Likewise, the host under attack must be weak. The carriers of the virus must be part of a closely packed, not diffused, population. There must be neither an available vaccination, nor an easy and cheap post-infection treatment.
The virus that dares not speak its name is smugness. A delusional self-satisfaction among administrators, professors and students grounded in a failure to ask: what is a university? I believe that a well-conceived legal studies programme can play a crucial role in inoculating the university against this virus. Once vaccinated, a university will have the strength to repel unfounded criticisms, and the courage to confront and respond confidently to external critiques that do have merit.
The university and its purposes
Today the question “what is a university?” is usually answered by identifying its purposes. The assumption is that universities have to be “good for something”. I say this assumption is misguided, and not just because the purposes usually identified are too limited. There is no doubt they are. We know that the code words “good for something” really mean “good for getting a job” – surely not the primary ambition of a university. However, it would be just as wrong to say that universities are “good for advancing knowledge”.
Of course, I believe that a university is a place where people do acquire habits of mind and habits of action that will be highly valued in employment settings. But these same habits will be also be highly valued in any setting involving other people – in voluntary organizations, politics, in neighbourhoods and even in families. Notice the point. The consequences of a good university education may be that a graduate is more marketable. But enhanced marketability is not the purpose of the university. Indeed, the habits of mind and character acquired by university graduates can enable them to make contributions in settings beyond the workplace.
A university is not a factory that produces a product like, for example, skilled labour, knowledge, scientific discoveries, and artistic works. A university is not a place where old knowledge is deposited by professors into the new and empty vessels that are students. No head is ever empty. No one’s role is to passively wait at the filling station for a tank-full of knowledge. No professors have such complete knowledge and wisdom that they have everything to teach and nothing to learn from students, secretaries and janitors.
A university is a richly-textured assemblage of environments, opportunities and inquiries that encourages all its members to seek virtue (or excellence). Every activity — teaching, learning, research, scholarship, and everyday collegial interaction – is an occasion for nurturing this ambition.
The quest for virtue and the study of law
The excellence that characterizes a great university is not a highly abstract intellectual excellence. It cannot be measured by prizes, awards and funding dollars. Virtue is moral excellence.
Acting virtuously is not something we do in order to perform a job and make a living; acting virtuously is a way of being alive. Virtue demands moral will – the desire to act appropriately; virtue also demands moral skill – the ability to reason about how to act appropriately in the life situations we confront every day.
Suppose I am right about the university as a community of learners in quest of virtuous lives. Why is a legal studies programme a privileged site for pursuing this ambition, and inoculating the university against the virus of smugness? I make four claims.
First, studying law is a powerful inquiry into social relationships, into the complexities of people in interaction with each other – Not just casual encounters, although many legal relationships are of this type nor just hierarchical impositions of power, although some legal relationships are like this. Law is concerned with the institutions and processes through which human beings fashion relationships of justice.
Second, legal study is grounded. It proceeds from the particular to the universal. Legal learning is grounded in the practical skill of understanding and solving specific problems that arise in everyday life. Law is concerned with the conditions under which human freedom can be pursued within a series of offices, roles and rules.
Third, studying law offers members of a community a powerful lens through which they may view and judge themselves and their community. Law is not a thing. It is a human accomplishment. Over time, law comes to express a community’s values and convictions, as well as its prejudices and pathologies. True engagement with law is inescapably self-reflexive and self-critical.
Fourth, legal study involves acquiring a range of skills for mediating the experiences of the quotidian with the ideals of the universal. Law graduates are dispersed into all sectors of society, both domestically and internationally. Many do not practice the profession in its traditional forms but all take the everyday lessons of law with them. They do so with a clear understanding of what it means to be committed to the virtuous deployment of their knowledge and expertise.
A legal studies programme is the university’s retro-virus
Every field of inquiry in the contemporary university should be devoted to the pursuit of virtue, of moral excellence. This is now rarely the case. Many great institutions have surrendered to the whims of political accountability and the instrumental logic of business demand for so-called skilled labour. They have done so smugly and in self-delusion, believing they remain faithful to the foundational aspirations of the university. Most of their composite units have quietly acquiesced.
Especially troubling to me, so have many universities have legal studies programmes. But the majority do not. The inquiries and aspirations of legal study are incompatible with passive compliance. No respectable legal studies programme can avoid the self-critique inherent in genuine engagement with the law.
Legal studies departments can be sites of reflection on the purposes of the university, as an institution, a collection of roles and a community. Faculty and students of legal studies departments can also take the lead in translating such reflections into specific institutional practices and policies. In holding fast, legal studies programmes are the retro-virus with which the university can be vaccinated before the malign virus smugness fatally weakens it.
Roderick MacDonald is speaking on this theme tomorrow evening (February 7th) at the LSE. For event information click here.
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About the author
Roderick MacDonald – McGill University
Roderick A. Macdonald is the F.R. Scott Professor of Constitutional and Public Law at the McGill University Faculty of Law. Professor Macdonald is an internationally renowned scholar who has published several books and more than 200 articles on access to justice, legal pluralism, administrative law and secured transactions law.