The Unbearable Uprootedness of Law School
Sometimes we shouldn’t have all the answers – Elizabeth Harris on the value of uncertainty
If a tree falls in a forest and no one is around to hear it, does it make a sound? Despite the fact that I am nearing the end of two Bachelors degrees, I still can’t answer this question. My inability to respond to a riddle based in something as fundamental as perception leaves me feeling (much like the uprooted tree in question) deracinated, devoid of certainty and that ANU should refund me some of my tuition fees.
In fact, my time at university may have made it more difficult for me to cope with this unanswered question than when I enrolled in PHIL1004 as a first-year ingénue. Five years later, in the last semester of my academic career, I read an article by Stephen Tang and Tony Foley which put words to a sneaking suspicion I had harboured since this brief introduction to philosophy and throughout my tertiary education: that university teaching and culture both place a heavy emphasis on certainty, and that isn’t always good for us.
This is particularly prevalent in law schools. Tang and Foley emphasise that creating certainty (even where there might not be any) is a ‘fundamental part of legal practice’ and learning. But this obsession with ‘knowing’ is not limited to legal studies. Western enlightenment-thinking and its epistemological concerns entrenches a drive towards certainty and predictable order. In an increasingly uncertain world, we are putting a higher premium than ever on certainty. Academically, we all want to know the answers that will get us high distinctions. Socially, we all feel a drive to know what the ‘best’ graduate positions are, and that we have secured one. Above all, we seem to believe that we have to arrive at these same certainties at the same time and then luxuriate in the fact that ‘I know what I’ll be doing after graduation’ and what I’m doing is the ‘right’ thing. Law students are taught to respect the canon of the ‘good graduate position’: judge’s associate, top six firm, Legal Aid, Attorney-General’s Department, edgy start-up and the Big Four. All excellent opportunities, but if you can’t sell their worth to yourself or to your peers, you can easily fall victim to feelings of inadequacy, disappointment and jealousy.
University teaching and culture both place a heavy emphasis on certainty, and that isn’t always good for us
Uncertainty and certainty are both important; a lawyer’s professional legitimacy depends on there being enough uncertainty that their skills are called upon, but enough certainty and technical expertise and correctness that their status is not questioned. This is the case for many other professions: if we could actually rely on WebMD, no one would visit a doctor, and if budgeting apps were flawless, financial advisors would be out of business. Managing uncertainty therefore becomes an important function for students and professionals alike. However, uncertainty in someone who has been trained to crave certainty and sees their peers apparently complying with this requirement can lead to panic and anxiety, negatively impacting their wellbeing.
A ‘mindful intolerance’ of uncertainty can nurture a more realistic approach to the limits of human knowledge and the inevitability of not knowing. Like seeds planted in different soil under varying conditions, we cannot expect our roots to take hold and allow us to grow into exactly what we are meant to be at the same moment in time. Accepting that deeply rooted certainties may take time to develop is essential to feeling satisfied – if not always happy – in the moment. My major in Art History cultivated healthy uncertainty far more – so many questions were left unanswered at the end of each semester. In my last Art History course, we were confronted by Las Meninas, a Baroque painting which has been analysed by art historians for three centuries but remains inscrutable. We weren’t expected to discover the secret behind the work, just to learn it had one, and question what it might be.
But the characteristics of a contemporary legal education don’t encourage this mindful intolerance. From day one, we are told to ‘think like a lawyer’ and are told that ‘having a legal mind’ is something we might have been born with or can mould our own brains to be. Tang and Foley suggest that these concepts of the legal brain carry an ‘implicit ideology of attainable certainty’ which is not necessarily borne out by experience.
A preference for rational thinking – supposedly leading to certainty – is coupled with a decline in experiential thinking, which can lead to increased psychological distress. We erase social experience and emotion from our frame of analysis, as we insist that ‘law is reason free from passion’, and if that was good enough for Aristotle, it’s good enough for us. But as we deny these essentially human cognitive processes, we consolidate myths about certainty – that it is always attainable, that we should attain it – which are not true.
We insist that ‘law is reason free from passion’, and if that was good enough for Aristotle, it’s good enough for us
Certainty then becomes a psychological state instead of a concept; we ‘are’ certain, and any challenge to certainty is a challenge to our sense of self. Neurologist Robert Burton suggests that this mental state can cultivate a misleading reliance on certainty as a source of information. We adopt faith in certainty rather than considering what we actually know. Convinced we ‘know’ the answer, we start to happily tap away at our laptops writing a ‘research essay’ which is actually mere opinion, to hopefully be bolstered by fortuitous citations at the last moment. A false faith in certainty can stifle a questioning mind, curiosity, and an ability to query whether our certainties are, in fact, certain.
We then start to develop a cognitive bias away from open and creative thinking, towards strict frameworks which can be highly biased towards incorrect outcomes. In law, we are taught to answer problem questions using the handy HIRAC framework: Heading, Issue, Rule, Analysis, Conclusion. God forbid some element of our answer does not fall within this prescriptive matrix.
Heuristics become answers instead of tools and we avoid any uncertain scenario, losing the ability to self-regulate when faced with not knowing. No wonder so many graduate lawyers are unable to cope with the prospect of telling their superior they just don’t know the answer to a question. Intolerance of ignorance leads to increasingly negative reactions in uncertain circumstances. All of this goes to explaining how elevated negative views of uncertainty are associated with a plethora of psychological problems, such as anxiety and perfectionism. And this is all despite the fact that uncertainty can provide opportunities for hope, agency, and positive change. Just as a closed bud on an apple tree holds the promise of a blossom to come, uncertainty can carry with it the joy of anticipation.
God forbid some element of our answer does not fall within this prescriptive matrix
We might go into university wanting to have the strength and assuredness of an old oak, but we should rather think of airplants. Airplants have a natural propensity to cling wherever conditions may permit. Their lightweight seeds are easily carried by changing winds, and the learn to survive wherever they may become embedded. Other types of airplants are able to grow on shifting and shallow beds of soil due to their minimal root systems – something that a mighty oak could never do. An airplant seed wouldn’t have impostor syndrome – it just makes do. The acorn though, dependent above all on its ability to sprout hardy roots, would probably choke under pressure.
The promise of certainty is an empty one. You can pot a plant, contain its roots, and control it. But branches are unwieldy things – they are more exposed the elements and vicissitudes of their environment. While you have to have roots before branches, and you have to develop some idea of what you want in life, your career, and what the answer to question three on the exam might be, certainty and roots can be overrated. It is a rare person that goes to a forest to look at roots. What we really want to see is the weird and wonderful ways the tree has grown up and out of its rooted certainty, into something we could never have predicted. One day, when graduation, my first job, transcripts and final honours grades seem far away, I hope I might find I can simply graft some of my old, university self onto a new self. Leaving old roots and certainties behind, I hope I’ll accept that what I needed all along wasn’t rock solid assuredness, but an ability to change and grow.
Elizabeth Harris is studying Law and Arts at the Australian National University.
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