Citation(2016) 28 SAcLJ 408
Date01 December 2016
Published date01 December 2016
Book Review

by Elizabeth Mertz

Words are powerful, and what we do with them makes their power evident.[1]

1 Since one thinks in words most of the time, his or her facility with language affects the nature and depth of his or her thinking. So when law students are told, as they almost invariably are, that they will be taught to “think like a lawyer”, they are led thus to believe that lawyers have a different way of thinking, that there are mystical paths to intellectual brilliance that are closed to outsiders.

2 If language is crucial to thinking, then it is important to know whether there is a commonality of legal language in the law schools. This question prompts Mertz, first, to examine common features that pervade the teaching of law in the US. She makes it clear from the start that “thinking like a lawyer” is not associated with any form of superior analytic skill. To her, “one thinks like a lawyer because one speaks, writes, and reads like a lawyer”. In this book, she examines how these skills are manipulated in the teaching of law. The widespread acceptance of the idea of “thinking like a lawyer” therefore compels her to begin by examining what the basic activities are, and then to see whether the law schools across the US share a common vision and approach. This she does in the first part of her book.

3 Mertz is acutely aware that any form of common vision or reasoning must deal with the fact that the professors (the teachers) as well as the law students all come from diverse backgrounds. That affects the way a person understands the law. Weaving his way through myriad legal concepts is the famous and ubiquitous “reasonable man”. However, from the anthropological point of view, and Mertz is an anthropologist, nothing can be more unreasonable than to expect people from diverse backgrounds to perceive the reasonable man in a common light.

4 Over time, law schools and lawyers begin to utilise language in order to establish consensus and commonality. Mertz takes the reader into the classroom to present her study and views as to the role of language in law, legal reasoning and education. Relying on transcripts of lectures she concludes that common strands of learning the law are discernible and “transcends variation in professors' pedagogic styles and political philosophies”. Law is taught by the study of cases, and Mertz points out that the process of reading cases involves two “frameworks”— the framework of cases as precedent; and the framework of the procedural history of the case. In the first instance, decided cases are “speech acts”: not only do they report the decisions of the courts, but the “text themselves actually are the decisions: the words of the texts constitute or ‘perform’ the decisions” [emphasis in original].2 Precedents come into being when the judges “build analogies between the case before them and earlier cases”.3 In the case of the second framework, the procedural history of the case is important because by the time a case reaches the appellate court, the case would have been shaped not just by its evidence (or facts) but also its procedural history since, generally, matters not raised before would not be addressed on appeal.

5 Both...

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