The Role of Hierarchy, Example, and Language in Learning. A Confrontation between a Liberal and a 'Critical' Understanding of Legal Education

In The Voice of Liberal Learning (a collection of essays published in 2001), Michael
Oakeshott characterizes learning as a strictly non-instrumental activity. In
schools and universities, knowledge is acquired for its own sake: ‘learning here is
not a limited undertaking in which what is learned is learned merely up to the
point where it can be put to some extrinsic use; learning itself is the engagement
and it has its own standards of achievement and excellence’. Learning is an adventure: it does not follow a pre-established plan and has no final destination. First, I will clarify Oakeshott’s notion of liberal learning (section 2). Second, I will
show in which respects this understanding of education can be contrasted with
and criticized from the viewpoint of critical legal education, mainly building on
several writings of Duncan Kennedy (section 3). Third, I will attempt to refute
this critique, in particular by arguing that it is based on false assumptions about
the role that hierarchy, example (both in the sense of role modelling as in the
sense of exemplifying) and language play in teaching (section 4). Finally, I will
explore whether this critique could be used in order to strengthen the critical
impetus of liberal learning (section 5). My general purpose is to develop a notion
of skeptical legal education, which is to a large extent based on Oakeshott’s under‐
standing of liberal learning but which relativizes its insistence on the noninstrumentality of learning and reinforces its critical potential.