The Sad Fact of Remediation

An education in law is meant to teach the law and legal reasoning. To learn basic skills is the aim of primary and secondary schooling. Yet here at Leiden Law (part of Leiden University, the Netherlands’ oldest and most prestigious university), we are increasingly sacrificing the law to teach basic skills. Some readers may have seen similar changes at their home institutions, which would suggest that what is happening at Leiden is a barometer indicating a larger trend in higher education.

The main source of the problem is that students arriving at universities today are undisciplined, in the general sense of having poor habits and in the specific sense of not knowing any specific discipline. The prerequisite of written eloquence is disciplined education—best inculcated during early childhood. Absent this discipline—the self-control, perseverance, planning, practical wisdom, and so forth that are necessary to gain mastery over skills such as reading and writing—the buck gets passed from primary to secondary and, now, to tertiary education. And this is exactly what is happening in parts of Europe. I doubt it is much different in American higher education.

It is not that incoming university students are technically illiterate or innumerate; they know the alphabet and can count. They are non-literate (Google, Wikipedia & Ctrl+f do the ‘reading’) and non-numerate (thanks to calculators). But even more so, they are non-writers. So what? Very few people have ever truly been writers.

However, in the past most educated people used to write, and they wrote a lot. My parents, neither of whom completed a bachelor’s degree, have stacks of letters and personal journals, poems, and ruminations. A quick glance at a biography of any nineteenth-century person with a modicum of education reveals voracious letter-writing and memorization of poetry and famed speeches. Allen C. Guelzo notes the super-literacy of nineteenth-century Americans in his recent, magisterial history of the battle of Gettysburg. A history such as that would not have been possible without the long, and often eloquent, letters home from the front lines.

Yet that is no longer the case in the age of Twitter. As a result, higher education now has a lower task: remedial education. At Leiden Law,  our job as teachers is now compounded: not only must we teach legal philosophy from a primary source but often also basic writing, reading, and reasoning skills.

To illustrate this breakdown of education, at Leiden University law students in their third year are required to take a course in legal philosophy. It consists of two parts. The first is ten two-hour lectures on: Plato’s Republic, Aquinas’s Treatises on Law and Treatise on the Ten Commandments, Hobbes’s Leviathan, Tocqueville’s Democracy in America and the Federalist Papers. These are taught by Andreas Kinneging, the professorial chair of legal philosophy and local bulwark of this sort of pedagogy. Assessment comes through an Oxford-style exam (four short essays written within three hours).

The second part is a weekly two-hour seminar, concurrent with the lectures, but focused on one primary text. Those seminars are led by faculty members such as me. The students choose a seminar topic from a dynamic list that has included: Aristotle, Mill, Aeschylus’s Oresteia, Shakespeare as a political thinker, Kierkegaard, Beccaria, Grotius, Pufendorf, and many more. Each week students must write an essay. For the non-literate, this is a lot of reading and writing, and they grumble as they trudge through it. But, in the end, most pass muster—but only after much help with basic skills. 

Recall that these are third-year university students, who could graduate and be employed in less than a year. (In Europe, law may be studied as an undergraduate discipline, after which time the novice may make steps to enter the profession). At this point, they have passed through approximately twelve years of basic education and two and a half years of higher education—at great public expense—yet many cannot string sentences together into a single coherent paragraph.

Their inability to write should be a great public scandal. Instead it is “run of the mill.” In recent decades, there have been extensive reforms to Dutch secondary education. These reforms have not resulted in literate, competent first-year students, ready for university education. With few notable exceptions, even those pupils who have completed the much lauded gymnasium (a classical and literal arts curriculum in secondary school) do not regularly demonstrate that they know inter alia: what a thesis statement is; how to separate paragraphs logically; the difference between an argument for a position and what is merely one’s opinion; the need to quote and cite ideas and phrases of others; or that good writing requires re-writing and editing, both of which take time and care.

The Leiden law curriculum has been adapting to help remedy this. The first year now includes remedial writing instruction. Moot court, which teaches basic legal reasoning, continues to be offered in the second year, and is tailored to meet the students’ deficiencies. As a result of this additional instruction, in the most recent academic year students seemed to have needed less hand-holding for the basic structure of an essay (intro, body, conclusion), spelling, grammar and rudimentary argumentation—which is a start. For the future, Leiden Law may require a certain score on a language exam before studies may commence. This is a regrettable but necessary move: secondary school diplomas are simply not reliable guarantees any longer.

Even so, the university can only ameliorate some of the symptoms. It cannot solve the underlying problem of secondary education’s failure to inculcate writing, reading, and reasoning skills—even less can it instill the necessary self-discipline. And it is most unfortunate that what little can be done comes at the cost of the law curriculum. Before Leiden began to require remedial writing instruction, Professor Willem Zwalve taught first-year students the history of European legal codifications (a course which I once audited with great interest). That this course was swapped for basic writing instruction is more than a pity: it means students are cheated of an enriching part of their legal formation.

A pity though it may be, I must reiterate that it was nevertheless a necessary step to include remedial writing instruction in the curriculum. Those who cannot express thoughts clearly in writing usually cannot do so in any form. Jurists who cannot write would prove a problem not merely for Leiden’s reputation, but also for the integrity of the legal profession. Moreover, it is a poorly kept secret that most Leiden Law students will never work in law. They will become middle managers, head secretaries, or take desk jobs at various and sundry government or private agencies. In those positions their skills as thinkers, reasoners, writers and readers will be much more valuable than what they forgot to remember of European Union law. 

So what can be done? It is unlikely that the primary and secondary education-industrial complex in most Western countries will change soon or for the better. Most graduates of secondary schools will likely continue to be poorly prepared for the universities that they enter—no matter what their grades or test scores say. So, if you are employed at a degree-granting institution you will probably have to include some form of remedial education, formally or informally, as part of your classroom instruction.

Thus, my plea here has to be my fellow instructors: as part of this remedy please assign more long-form writing, more regularly, and earlier in students’ curricula. Take the time to assess these assignments carefully, and motivate your assessments with explanations of what can be improved. Practicing the discipline of writing with the students as often as possible would be a small step in a direction that could change the destination. But it must be remembered: without the discipline no discipline will be learned.