By Samantha Weissman
Most law students are familiar with the “Socratic” method and probably received at least a brief description of its purpose, at least in terms of its purpose in law, their first year of school. Perhaps you were told that the Socratic Method was a way of making you think or a method of legal analysis. While these descriptions are true, they do not encompass the beauty and ingenuity of one of Socrates’ greatest lessons. Whether or not you were aware of it at the time, you likely used or at least encountered the Socratic Method your first year of law school in the form of question and answer sessions where you were on call for case analysis. You provide the facts of a case, the holding, the rule and then it happens. You want to ask the professor why the court ruled the way it did and their response is something to the effect of “you tell me.” Now, you are filled with terror and bewilderment because the answer was nowhere in the opinion, not in any footnotes, and how can you possibly presume to know what Justice Brandeis was thinking without diminishing his intelligence or sounding like a complete idiot. You offer an “I don’t know” or “I’m not sure” only to have the ball tossed right back to you by the professor with “think about it” and if you had Professor Lee, perhaps a lucky thumbs up. You finally offer a thought on the matter and then the professor changes a fact and asks “would it still be the same?” Game changer, either everything you thought you knew was wrong or you push forward and show that the new fact still proves your argument. The game is dialectic between student and professor and its playability has withstood centuries… lots of them.
The Socratic Method is much more than a form of legal analysis and its roots weave through several disciplines including, for example, philosophy, history, and literature. One of the classic literary examples of the Socratic Method at work is Plato’s Phaedrus. The scene is idyllic with Socrates and Phaedrus sitting under a tree by the banks of the Ilissus. Socrates and Phaedrus engage in the dialectic and each prompts recognition and understanding within the other by forcing them to think. Here is a small excerpt that shows the Socratic Method in action:
SOCRATES: Let us put the matter thus:—Suppose that I persuaded you to buy a horse and go to the wars. Neither of us knew what a horse was like, but I knew that you believed a horse to be of tame animals the one which has the longest ears.
PHAEDRUS: That would be ridiculous.
SOCRATES: There is something more ridiculous coming:—Suppose, further, that in sober earnest I, having persuaded you of this, went and composed a speech in honour of an ass, whom I entitled a horse beginning: ‘A noble animal and a most useful possession, especially in war, and you may get on his back and fight, and he will carry baggage or anything.’
PHAEDRUS: How ridiculous!
SOCRATES: Ridiculous! Yes; but is not even a ridiculous friend better than a cunning enemy?
SOCRATES: And when the orator instead of putting an ass in the place of a horse, puts good for evil, being himself as ignorant of their true nature as the city on which he imposes is ignorant; and having studied the notions of the multitude, falsely persuades them not about ‘the shadow of an ass,’ which he confounds with a horse, but about good which he confounds with evil,—what will be the harvest which rhetoric will be likely to gather after the sowing of that seed?
PHAEDRUS: The reverse of good.
Do you see it? Do you see game being played between the two men? Do you see the probing of logic and by addition of facts and application to other circumstance? Socrates begins with the hypothetical that he is able to convince Phaedrus to buy a donkey by persuading him that this donkey is really a horse. Phaedrus is unconvinced and probably thinking Socrates is off his rocker so, Socrates has to probe further. He takes the hypo a step further and amends it to offer prose that this “horse” is the just the most magnificent creature and aid in battle. Socrates sounds even loonier than before. Phaedrus is in disbelief at Socrates’ assertions but suddenly, Socrates asks him a poignant question that puts the whole absurd scenario into a practical perspective. As absurd as the idea of a magnificent battle donkey is, isn’t that still better than nothing? Phaedrus agrees. Socrates then applies the logic gleaned from this argument and presents it to Phaedrus in a new context. Phaedrus, understanding this logic, is able to apply that same reasoning to answer Socrates’ question “what will be the harvest which rhetoric will be likely to gather after the sowing of that seed?” Phaedrus has essentially done what all law students do; he has applied his understanding in one context to support his understanding of another scenario. The law student uses the cases he reads to support his further inferences into alternates scenarios and hypotheticals.
Think about this the next time you find yourself in the impossible hypothetical in front of all your peers leering at you. How have the courts gotten through their “impossible” case facts to come to a conclusion? Play Phaedrus and go with the game.