Pedagogy and Purpose: Teaching for Practical Wisdom - Daisy Hurst Floyd

• Citation: Vol. 63 No. 3
• Publication year: 2012

Pedagogy and Purpose: Teaching for Practical Wisdom

by Daisy Hurst Floyd*

I. Introduction

This year marks my thirtieth as a legal educator. During that time, I have taught a variety of courses and served in several administrative roles, including seven years as Associate Dean for Academic Affairs and six years as Dean. I am now newly returned to full-time teaching after a post-deanship sabbatical. I have served on numerous law school, university, professional, and civic committees and boards, and have attended untold number of professional meetings. From these various perspectives, I have followed closely the debates about what we are and are not doing well in legal education, including such developments as the professionalism movement and its influence on law schools, the MacCrate Report,¹ and the publication of and ensuing conversations around Best Practices² and Educating Lawyers.³ More recent debates focus on justifying the purposes of legal education in the face of a poor economy and uncertain job market.

I have sometimes felt empowered by these discussions and by the richness of thought, debate, and experience that legal educators bring to bear on the best ways to prepare our students. At other times, I have felt weighed down by the challenges of "turning a battleship" or

* University Professor of Law & Ethical Formation, Walter F. George School of Law, Mercer University. Emory University (B.A.; M.A., 1977); University of Georgia School of Law (J.D., 1980).

1. robert maccrate et al., am. bar ass'n legal education and professional Development-An Educational Continuum: Report of the Task Force on Law Schools and the Profession: Narrowing the Gap (1992).

2. Roy Stuckey et al., Best Practices for Legal Education: A Vision and a Road Map (2007).

3. William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law (2007).

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whatever current metaphor is being used to describe the many institutional and psychological barriers to changing a culture as tradition- and rule-bound as American legal education. As I ponder how to use my time and energy for the remainder of my career as a law professor, with the goal of preparing students for the demands of a changing world and a complex and difficult professional life, I find myself more and more focused on pedagogy. But, pedagogy for what purpose?

In this Essay, I want to suggest that we should conceive of our purpose as educating towards the exercise of practical wisdom and that we think about this purpose at the level of pedagogy.

II. Practical Wisdom

Practical wisdom derives from Aristotle's conception of virtue ethics.⁴ Aristotle argued that ethics requires the cultivation of virtues such as loyalty, self-control, courage, fairness, generosity, gentleness, friendliness, and truthfulness. Many social practices and interactions require wisdom, and, according to Aristotle, wisdom comes through cultivation of the virtues. The master virtue is practical wisdom: one who knows how to use the virtues "practically," who is able to apply them in concrete situations, is wise.

A recent book argues that we need practical wisdom today, but that our rule-bound culture inhibits both the development and exercise of practical wisdom. Barry Schwartz and Kenneth Sharpe, faculty members at Swarthmore College and authors of Practical Wisdom: The Right Way to Do the Right Thing? note that all humans have the capacity for practical wisdom but that not all humans develop it.⁶ The difference is in the kinds of experiences a person undergoes. Practical wisdom is acquired through the right kinds of experiences and through an absence of the wrong kinds of experiences.

Practical wisdom is nuanced and contextual; it depends upon an understanding of the particular. It is not just the right way to do the right thing, but is the right way to do the right thing in this situation and for this person. Schwartz and Sharpe use the example of how a doctor delivers a bad prognosis to a patient.⁷ The question is: How does this doctor deliver this bad prognosis to this patient at this moment? The answer might be different when the patient is a sufferer of acute

4. See Aristotle, Nicomachean Ethics (Martin Oswald trans., Bobbs-Merrill Co., Inc. 1962).

5. Barry Schwartz & Kenneth Sharpe, Practical Wisdom: The Right Way to Do the right thing (2010).

6. See generally id.

7. Id. at 36-38.

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depression whose wife begs the doctor to withhold the truth of the prognosis to prevent a suicidal episode than with a different patient, or for this patient at a different time, or with a different diagnosis. Recognizing differences and acting appropriately in the face of them requires practical wisdom. Similarly, how does the lawyer properly advise this client ofall ofthe considerations that should go into deciding whether to accept this particular plea offer?⁸ The doctor and lawyer must recognize that rules do not supply the answers to these questions. They must have the wisdom to apply the rules practically, that is, to understand the particular situation and the judgment it calls for.

Practical wisdom requires a "circuit of thinking" that allows the practitioner to move back and forth between particular and general, between narrative and analysis.⁹ When a person acts out of practical wisdom, she moves from engagement with a concrete situation toward use of analytical reasoning with the concrete situation and back again toward a more informed and discerning engagement with the situation. When we educate future lawyers, we want to prepare them for this circuit of thinking, to be able to move back and forth between their understanding of legal concepts and rules and the particular circumstances of the client's case, including the client's goals and needs.

Practical wisdom is needed by people in all walks of life, but it is particularly important for lawyers. Wisdom is the distinctive value that a lawyer brings to a client. The client needs the lawyer to offer judgment and not just a rule-based response-that is, to offer wisdom. We are failing our students, and the clients they will represent, if they are not capable of exercising practical wisdom, both for themselves and for their clients.

The question for legal educators then is: How do we provide the right kinds of experiences for law students, experiences that develop in our students a capacity for practical wisdom? And, just as important, how do we avoid providing them with the wrong kinds of experiences, those that teach them that rules will provide them all of the guidance they need to do their jobs, thereby limiting their capacity for practical wisdom?

III. THE LIFE OF THE MIND FOR PRACTICE PROJECT

Although practical wisdom is an ancient and well-known concept, it has been a lengthy journey for me to be able to articulate my own

8. Id. at 30-34.

9. William M. Sullivan & Matthew S. Rosin, A New Agenda for Higher

Education: Shaping A Life of the Mind for Practice 110 (2008).

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purpose as a legal educator in its terms. A critical formative experience in that journey was my participation in an interdisciplinary project sponsored by the Carnegie Foundation for the Advancement ofTeaching, which was called The Life of the Mind for Practice Seminar. The project brought together fourteen faculty members from professional schools and undergraduate liberal education representing a variety of disciplines. Its outcome was to describe a "pedagogy of engagement," a way of designing and teaching courses that cultivate practical wisdom in our students. The project and its findings are summarized in A New Agenda for Higher Education: Shaping a Life of the Mind for Practice.¹⁰ The book provides a new and provocative way to think about what we are doing in law school, including examples of how to design the right kinds of student experiences to develop the capacity for professional wisdom.

Not surprisingly, this project of the Carnegie Foundation is consistent with the Carnegie Foundation's report on legal education,¹¹ which also emphasizes the formative purpose of professional education. In fact, the Life of the Mind for Practice project grew out of the experiences of the Carnegie researchers who had studied professional education, including legal education. For those legal educators...