Legal Education and Bias: An Historiographical Perspective

In this post I’d like to discuss lecturers sharing or being influenced by their political views.  This is a complaint I’ve heard quite a bit, particularly within the context of my legal studies, that one lecturer or another is biased and they should be neutral in their teaching.  At the risk of being too frank, I think this concern is misguided or overblown at best.  (Yes, I’m sure there are some academics who abuse their position to grind axes, but, I’m also sure I’ve never come across any)

Are there some academics whose views are obviously in some ways politically guided or motivated?  Absolutely.  But, two questions should follow on from that.  One, is this really inappropriate in higher education?  And two, can such political influence, or bias, really be avoided?

professor

photo credit: Organisation for Economic Co-operation and Develop OECD Forum 2017: Inclusive Growth & Globalisation via Photopin (license)

The first question is pretty normative and your mileage may, of course, vary.  But for me, university is about teaching critical thinking, getting you outside your comfort zone.  And, in this polarised age, critique of sensationalised and politicised information sources is ever more important.  Surely a safe way to explore that is within the context of the lecture hall?

The second question is, to me, much more interesting.  It can be broken down into several parts.

The first is, is any area of law free of politics?  Maybe it’s a failure of my imagination, but I can’t imagine how any area of law could possibly be, given the politicised context in which it’s made, the increasing politicisation of judges and their interpretation of the law, etc.  In contract law, you have the notion of good faith and the balancing act between consumer protection and freedom of contract.  In public law: with what slant does one teach Parliamentary sovereignty (does one emphasise the benefits of sovereignty, or the potential horror of murdering blue-eyed babies: I say, as someone with blue eyes)?  What does one think about the merits (or downsides) of judicial review, and does one emphasise the rise in judicial review in immigration cases and what that might imply about the changing nature of immigration policy?  Equity and trusts: where are or should the limits be for charitable trusts, how does one address the way trusts may be used for tax avoidance, even the notion of private property as a valid construct is potentially up for grabs.  Criminal law, it almost goes without saying: it’s so thoroughly politicised on a societal level (but, to throw out a few examples, perhaps unnecessary emphasis on self-defence, limitations on duress, or the line of reasoning on causation overturned in Kennedy (No. 2)).

And I mean, sure, you can teach any of those areas without being overtly political (probably: criminal law and the discourse around it may be too politicised for that).  But the key word in that last sentence is overtly.  Can you really present information without bias?

I fundamentally approach this question through the lens of historiography: how and why things are written, and with what agenda.  Yes, I already know that’s strange: during a lecture discussing Baroness Hale and Lord Neuberger’s disagreement over imputed intentions in Stack v Dowden, it occurred to me that presumably all intentions are ultimately imputed in a situation like this where the couple did not plan to split up as they eventually did (and thus did not leave unambiguous evidence as to their intentions).  I put this to the lecturer during the break, and explained the historiographical background I was coming from, and he said something along the lines of “yes of course you’re thinking about it that way, Amy, that’s perfectly natural” and looked at me as though I’d sprouted a second head!  (Absolutely no offence taken, there: back when I did my criminology degree, I was the only budding ancient historian on the course, or perhaps that they’d ever seen.  I’ve long since embraced the fact that I’m academically strange)

herodotus
photo credit: Prof. Mortel Portrait bust, probably of Herodotus, 2nd cent. CE, Stoa of Attalos, Ancient Agora via Photopin (license)

But, ultimately, one of the key lessons of historiography, particularly more recent historiography, is that bias is inevitable, at least in history (and presumably other discursive and interpretive disciplines, such as law), and a claim of lack of bias is ultimately biased itself.  One could go further, and I plan to: it seems to me that failing to make one’s bias or interest in a subject clear might be more harmful than having a clear agenda.  (And just so we’re clear, here: I am trying to be neutral on my blog, for all sorts of reasons, but I absolutely have an agenda, if not many, not all of which I’ve fully explored…)

Let’s take an example from my historical studies (this is brief and necessarily simplified: scholars dedicate their lives to these things).  Herodotus is known as the “Father of History”.  He wrote primarily about the Persian Wars.  (Incidentally, the “gda” in my Twitter handle comes from Herodotus, and refers to the “gold digging ants” that he refers to in Hdt. 3.102ff). Due to the colourful and often fanciful nature of his stories, he has been derided in some circles since antiquity and is sometimes known as the “Father of Lies”.  (Yes, my agenda here is clear: I’m rather fond of Herodotus)

Let’s contrast Herodotus with Thucydides.  Thucydides was a near contemporary of Herodotus and was among those who seems to have derided him for, among other things, romanticism (Thuc. 1.22).  He wrote primarily about the Peloponnesian War.  Thucydides is sometimes thought of as the father of “scientific history”.  His work is very soberly written, and, at first glance, a lot more credible.  Out of interest, it is one of the few ancient works which has been studied by modern medical experts, because it contains enough relevant information to possibly identify the Athenian plague.

To me, Herodotus seems to “show his working” when he discusses some incidents.  He sometimes shares different accounts of the same story and talks about evaluating them.  Yes, a lot of the things Herodotus shares are mythical and fantastic, but they reveal his mindset and/ or that of his sources.  What’s more, a surprising amount of his work has been validated by more recent work: including (to some extent) the gold digging ants!  But, even where his stories have not been validated, their insights into his research and, as noted, way of thinking, are valuable.

On the other hand, Thucydides, despite conforming to the sensibilities of 19th and 20th century historians, is not without his problems.  If you haven’t, go up to the reference I included for Thucydides, and click on it.  Note what is said just before he implicitly derides Herodotus: “I have therefore put into the mouth of each speaker the sentiments proper to the occasion, expressed as I thought he would be likely to express them” (Thuc. 1.22, emphasis mine).  In other words, although it’s also clear in that section that he’s evaluating sources, he’s putting words in people’s mouths, which (surely) is automatically suspect!  And the fact that he is not, like Herodotus, inclined to show his working, makes it very difficult for us to verify the accuracy of what he’s telling us.

lecture

photo credit: villenevers Nouveaux arrivants-01 Nouveaux arrivants-01 via Photopin (license)

So too, it seems to me, is it for legal education (perhaps any kind of education).  If a lecturer is upfront, or at least obvious, with their political or other agendas, then a student has a clearer idea about what they might need to question or critique on their own (even if they ultimately come to agree with the lecturer’s point of view).  On the other hand, if a different lecturer doesn’t mention agendas, just presents what purports to be facts, the fact that there’s undoubtedly an angle there may be lost on students, particularly those without training in that kind of thing (which I suspect might well be most law students: again, my specific historiographical training probably makes me strange).  One of the complaints I heard about one of my lecturers, the one who was perhaps most overtly political, was that they were brainwashing us.  Presumably if the “brainwashing” has been spotted, by very definition it’s been unsuccessful?  What might the other lecturers have slipped past us while we (or, most of us) weren’t looking?  (I should note that I actually don’t think any of my lecturers are malicious or anything like that.  Just that everyone has biases, and it’s probably better for everyone when they’re out in the open)

As always, please do comment.  I’d love to know what you think about politics in the university classroom, bias, even ancient history if you’re so inclined (you can take the woman out of ancient history, you can’t take the ancient history out of the woman).

 

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