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Dec 5, 2004 10:06 am

Legalism and Education

Lawyer Philip K. Howard, in the New York Times, has an interesting take on education reform:

Law has a noble pedigree in setting educational goals, as happened 50 years ago with desegregation. Using legal dictates to specify how to achieve those goals, however, has had the opposite effect - it has basically killed the human instinct and judgment needed to run a school.

Law is brilliantly ill suited as a management system. Law is rigid and leaves no room to adjust for the circumstances. Once the idea of rule-based management takes root, the bureaucracy grows like kudzu. Teachers and principals spend the day tied up in legal knots. ...

A legalistic culture becomes poisonous, transforming what should be a cooperative enterprise into a viper's nest of competing entitlements, as people start parsing the rules to get their way. What matters, students quickly learn, is not right and wrong, but what you can argue. The principal's authority deteriorates under all these legal demands - by teachers, custodians, special education students, any students or parents who think they could have been treated better.
Just as an aside, there was a school of governance in ancient China known as the Legalists (principle proponents: Shang Yang, Han Feizi, Li Si) which attempted to create a perfectly harmonious society by legislation: if everyone followed the law, which would be written in great detail to cover most contingencies, then society would be at peace and prosperous. The rules for bureaucrats in particular were very strict, because the system would not function if functionaries overreached or micromanaged, but if officials stuck to their duties, and carried them out in accordance with the law, all would be well. Punishments and rewards were both crucial in this system. It's an interesting combination of Daoist harmony, Confucian bureacratism and realpolitick statecraft (Machiavelli compares quite nicely to the Legalists). Legalism was the foundation for China's first Imperial dynasty, the Qin (3c bce) and has shared its reputation for draconian punishments; like the original laws of Draco, while the punishments described were indeed harsher than convention what they really did that was so shocking was apply those laws consistently and without favor, extending the government's authority into new realms. The Han dynasty, when it succeeds the Qin, makes only slight revisions to the Qin code and bureaucratic system, mostly recreating feudal privileges and reducing (not eliminating) state slavery (and the ambitious projects such labor enabled) and maiming punishments. Legalism is a very present strain in our own time: the belief that conflict and bad judgment can be eliminated entirely through micromanagement.

Howard has a solution, though:

Guarding against incompetence or unfairness can be accomplished far more effectively with human oversight than with legal central planning. Give someone the authority to act as a check and balance. And if we don't trust those in charge now, then let's set up parent-teacher committees with the power to review disciplinary and employment decisions. Parents and teachers know what's going on, and who's good and who's not.

The legalistic approach was mainly a byproduct of reforms from the 1960's, intended to guarantee individual fairness. But fairness in cooperative enterprise requires balancing of different interests, and a preoccupation with legal rights has achieved not fairness but a general decline of order, civility and achievement.

Schools depend on the energy, skill, judgment, humor and sympathy of teachers and principals. Liberate them to draw on all their human traits. Then liberate some of us to hold them accountable. Throw most of the rules overboard. Let law set the goals and basic principles, not dictate daily decisions.
Part of the problem is our legal system, which he does not address. If a dispute reaches the courts, as it so often does, the remedy becomes precedent and is often written into policy. There's a great deal of preventive rule-making as well: setting rigid standards, particularly for safety, so that failures are"impossible" and therefore liability is avoided. He also doesn't make an argument that I would have expected: the cost savings in reduced bureaucratic entanglements amount to spending more money on education. Unless failures become liabilities..... ouch, that's circular.

I'm deeply sympathetic to Howard's aims: greater flexibility and more realistic accountability; community involvement instead of legalism. One of my favorite ideas, though I've never seen it put into practice, is the Teaching Square technique, where a non-hierarchical group of teaching faculty visit each other's classrooms both to give feedback and learn from each other's techniques. Even my second-to-least-favorite HNN blogger, Thomas Reeves, has recently suggested a more open, mutual and cooperative approach to evaluating teaching. It would be harder, in a college setting, to engage the community: in primary and secondary ed, that means involving parents, but we can't do that legally in post-secondary education....

Non Sequitur:"professor b." has some interesting fulminations on students' decision-making and our role in facilitating the resulting tradeoffs. [via Siris]

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chris l pettit - 12/4/2004

To follow up...

The High Court here in South Africa has officially ruled gay marriage to be an inalienable human right...drawing upon the standards articulated in the Constitution, international law, and customary standards. Coincidentally...much of the population here would favor a ban on gay marriage and a return of the death penalty...yet another example of how democracy can be the absolute worst thing in terms of human rights and the pursuit of peace. it is a great day when the inalienable rights of all humans triumph over the ignorance and undereducation of a few misguided is why we need a strong and independent judiciary to act as a human rights and peace protectorate...and yet another reason to support the ICJ and ICC despite the misguided and self interested whining of those who prefer the Machivellian legal positivism that Howard is complaining about.

Oh...just an aside...thought you guys might be interested in this article...on academic freedom...,9959,1366286,00.html

An academic boycott of Israel and intolerant Israeli academics...I would be all for it as long as we boycott intolerant Palestinian academics as well. Can we get HNN to get rid of Pipes now? I am actually interested to see if it has any the way, South Africa is leading the way in the fight for sanctions against Israel and a boycott of Israeli goods and services...good stuff. So happy to be in a relatively tolerant country...feel sorry for you guys stuck in the bastion of relative ignorance (with only a few bright beacons shining through the darkness).


chris l pettit - 12/4/2004

The emphasis on "black and white rules" tends to be a red herring in that it is a strictly positivist exercise. Holmesian realism and Fuller's natural law theories allow for the consideration of sociological and community goals and well as a great deal of flexibility. What strikes me is that he is no criticising legalism per se, but the sort of legal positivism that is inherent in US law schools as well as international relations studies and political science.

Dr. Dresner, the commentary on the Legalists in China was very informative and fascinating. i had the opportunity to study their methods in one of my comparative law classes, and you are quite right about both the machiavellian similarities and the punishment and depended upon the authority and enforcement by the sovereign (the base of legal positivism) and not the authority of the law as having its origins in community standards, human rights, and besic ethics. The power balance was extremely skewed towards the more well off and those in power...very similar to the US system today.

Not to stray outside of education, but I must bring up the example of the way South African courts operate as a brilliant example of the way to go about things...that surprisingly intertwines well with Howard's solution. The judges are chose by committees made up of representatives from all sectors of society and have the obligation to uphold the human rights guaranteed in the Constitution. if they do not meet their Constitutional obligations, they can be removed after having a case decided before the African Court of human RIghts. What ensues is that there is what some would call a non-democratic hierarchy in which the judges are charged with being human rights protectorates and ensuring that the government follows suit, which leads to a very powerful judiciary...but there are checks and balances, and it is actually a hell of a lot more democratic than anything I have seen in the US due to the fact that the commission that selects the judges is actually representative of nearly all sectors of society. the judges have a lot of freedom and discretion...they must consult international law...and answer to the authority of the law and the Constitution...not to any political body. The result has been the most progressive and human rights based court on the planet (with the possible exception of India). Howard's idea to get rid of all the rules and black and white "bright line standards" that inhibit schools and their principals is a call to get rid of positivism, not legalism.


Jonathan Dresner - 12/4/2004

Yes. That's not because they weren't influenced by Confucianism, though: Confucianist Xunzi (who is, I think, underestimated in terms of intellectual power and long-term influence) was the teacher of Han Feizi (and Li Si, I think, though I don't have my notes at hand), and if you read them in sequence there's little doubt that there's a legacy.

Not the first time or last that thinkers denied their debt to the past and tried to eliminate competing schools of thought.

mark safranski - 12/4/2004


Agree with you on Machiavelli - it's a good paralell but my recollection is that the Legalist-Realist school under the Qin Emperor burnt the Confucian texts and attempted to suppress Confucianism.

Ralph E. Luker - 12/3/2004

Much of what this suggests seems to me to be almost self-evidently true. Free speech and free thought issues become more difficult to manage as institutions grow increasingly diverse, but those problems are only exacerbated as our reliance on civility and good manners has weakened in favor of legislating behavior. Law really does handle these things rather badly.

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