Vico

1
Vicos Ingenious Methodand 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 Vicos 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
Vicos 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 orators business to give immediate
assistance. . . . Our experts in philosophical
criticism, instead . . . are wont to say Give
me some time to think it over!
7
Vicos 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.