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When a student comes to law school, he leaves behind a world he knows and understands and turns to another world, that of the law, which at the beginning he cannot comprehend. He is immersed in a body of literature that is at once assertive and confusing; he attends a series of classes in which his teacher seems to make the unsettling assumption that he already knows what he came to learn. One question he will naturally ask himself of all this - his experience of the law - is whether it makes any sense to him. And for a long time, if he is honest with himself, he will find that it does not. Of course others will assure him that if he buckles down and does his work, things will come into a sort of order, and this is indeed what normally happens. For learning the law is a kind of learning the ropes; we learn it as we learn to engage in other activities, by doing it. One comes to know how to do what one could not do before, and in this sense at least things can be said to become clear.

It may seem an odd sort of clarity, for one cannot wholly reproduce in words what one knows - the law must be taught as it is learned - but it is a true clarity nevertheless, based upon a true knowledge. One knows what one is up to and how to go about it. The experience of making sense by learning to do is one that every person has, over and over, as he works his way through life, and one that every lawyer has as he learns to make the arguments - the countering characterizations, explanations, appeals, and justifications - that make up the stuff of law. It is an experience known to all of us.

The question I wish to address in this paper is this: can one have this experience of making sense, of watching things come clear, as one learns to engage in the activity of criminal law? Or is this set of social and intellectual practices in some fundamental way incoherent - a sort of social and intellectual monstrosity of which no sense can be made, and by which, of necessity, no justice can be done? This is a question I have heard asked over and over in the classroom by those who are trying to learn this branch of the law. I have never heard an adequate response and this paper is my attempt.


Reproduced with permission. Copyright New York University Press (1991). All rights reserved.