Vico’s “Ingenious Method” and Legal Education

1. Vico’s “Ingenious Method”and Legal Education Professor Francis J. Mootz III International Conference on the Future of Legal Education Georgia State University School of Law February 20-23, 2008

2. Thesis • Giambattista Vico’s famous Oration, “On the Study Methods of Our Time” (1708) provides a distant mirror in which we can see our contemporary concerns about legal education in deeper and broader ways. • Vico identifies the problem (Cartesian critical method) and the solution (“rhetorical knowledge:” common sense, ingenuity, prudence and eloquence).

3. Outline of Presentation • Vico mediated the “Quarrel of the Moderns and the Ancients.” • Vico adds philosophical depth to our contemporary concerns. • His philosophy connects directly with the Carnegie Report. • Concrete (NOT methodological) suggestions.

4. Vico’s Oration • The emerging critical philosophy. • The neglected tradition of ingenuity, imagination, prudence and eloquence. • The need for balance; rhetoric as foundational (life is uncertain). • The example of law and legal practice.

5. “Whosoever intends to devote his efforts, not to physics or mechanics, but to a political career, whether as a civil servant or as a member of the legal profession or of the judiciary . . . should not waste too much time . . . on those subjects which are taught by abstract geometry. Let him, instead, cultivate his mind with an ingenious method; let him study topics, and defend both sides of a controversy . . . Let him not spurn reasons that wear a semblance of probability and verisimilitude.”

6. Nature and life are full of incertitude the foremost, indeed, the only aim of our “arts” is to assure us that we have acted rightly . . . Those who know all the . . . lines of argument to be used, are able (by an operation not unlike reading the printed characters on a page) to grasp extemporaneously the elements of persuasion inherent in any question or case. . . . In pressing, urgent affairs . . ., as most frequently occurs in our law courts . . . it is the orator’s business to give immediate assistance. . . . Our experts in philosophical criticism, instead . . . are wont to say: “Give me some time to think it over!”

7. Vico’s Philosophical Themes • Post-Cartesian NOT anti-modern. • Law is central to his philosophy. • Ingenuity and imaginative “seeing.” • Pre-reflective world subtends cognition • Legal argument relies on metaphor, not strict logical chain of reasoning: must “see” the argument and then make it immediate for audience.

8. Vico & the Carnegie Report • Developing “rhetorical knowledge.” • Learn rhetoric through experience and practice: finding means of persuasion. • Legal topics and doctrine as knowledge subject to critique. • “Rhetoric of Inquiry” = No theory-driven methodology is possible. • Eloquence as wisdom speaking to the situation, premised on image-ination, prudence and argumentation.

9. Practical Implications • “Deep” case method expands moral imagination; unhelpful re: doctrine. • Memorizing vocabulary, coupled with human interaction exercises. • Llewellyn-style case method with depth. • Clinical/simulation capstones: make judgments, guided reflection, modeling, critique of contingency.