rules, law, and practice

Jay Lemke (jllbc who-is-at cunyvm.cuny.edu)
Thu, 25 Mar 1999 00:51:12 -0500

Important as the consequences may be of efforts to legislate particular
methods of teaching reading, I was also struck by some larger issues as Ken
and Ilda sketched the terrain over which the 'reading wars' are being fought.

Ilda was at pains to remind Ken, as he himself has so often reminded all of
us, that what matters is not the rules or principles that are said to
define an approach to teaching (be it Whole Language, the various flavors
of Phonics, or Hands-on Constructivist Science Teaching --- one that I
contend with), but rather the total practice of teachers and students
together. Most research which compares teacher beliefs and teacher practice
finds not unexpected gaps. These are the product neither of ignorant
inconsistency nor insufficiently diligent study and application of the
rules. We have discussed the relations of the abstract and the concrete
often enough here to recognize that no set of rules or principles can
determine practice, that there is a vast amount of work needed just to
imagine how any rule could apply to a specific situation, and no way to
determine any unique application. Ken often says that Wh-Lang is a
philosophy rather than a set of rules for practice; perhaps it is even
something like a 'habitus', a system of acquired dispositions toward
reacting more one way to an immediate event rather than other ways, and
surely it cannot be articulated into any unique set of rules.

Ilda said much the same about various flavors of Phonics ... that what
teachers trained in these methods actually do with them is far subtler and
more complex than the textbook principles might indicate. What we know
about teachers' practices indicates that successful and experienced
teachers tend to be 'eclectic and pragmatic' rather than method
monoculturists guided by theory rather than by experience and results. So
are we all in every complex human activity.

Perhaps one of the key differences between Wh-Lang and Phonics, as we find
in many arenas of intellectual practice, is the difference between weakly
codified and strongly codified practices. Do we enunciate a general
philosophy and rely on its interpretation in practice for specificity, or
do we devise a system of very specific abstract rules, knowing full well
that practice will inevitably deviate from them or need to go well beyond
what they can define? Don't we see this same contrast between 'qualitative'
and 'quantitative' research methodologies ... where the real difference is
not whether numerical methods are used, but whether we believe that our
methods should be highly rule-specified or highly context-dependent?

And this is, I think, also the classic dilemma of the Law. Perhaps moreso
even than social science research, and certainly for much longer, the field
of Law has struggled with the impossibility of formulating abstract general
rules that can cover all the real complexity of possible human situations.
Serious students of law know that 'the law' is not just a set of codified
legislation, nor even that plus a body of judicial decisions and opinions,
it is a process of fitting in each case the body of written law to the
facts of the particular case ... and it is a system of such practices,
acquired by good lawyers and jurists, involving weakly codified principles
of legal reasoning ... and a great deal of inarticulable 'habitus' (in
which of course all the social caste and interest biases claimed have their
effects too).

This is certainly at least as much the case in the writing of laws as in
their interpretation. A competently written law takes into account the
likely process of administrative and judicial application of that law; it
recognizes the doctrines (weakly codified norms of practice) that will be
applied in the law's interpretation. This is one reason why one does need
lawyers to draft good laws. It also provides a loophole for politicians,
who know quite well that much of what they write into law for the sake of
gaining a few votes from some particular narrow constituency will not do
nearly as much damage to the commonweal in practice as it might seem likely
to do on its face. Laws are extensively mediated by the total practice of
the legal system. Progressive laws are often eviscerated by a system which
interprets them with a more conservative bias; reactionary laws often come
to little effect on a longer timescale of interpretation, administration,
legal challenge, accumulation of precedent and doctrine ...

Good laws do not micromanage human behavior because there cannot be in
practice the level of surveillance, or the simplicity of interpretation of
the law's application, needed to do so effectively. Even ordinary
management requires an extensive consensus in the population, rarely
achieved. 'Good laws' are those that have widespread practical effect over
long periods of time, whether for good or ill in anyone's eyes. 'Bad laws'
are bad jokes on the body public; they serve solely short-term symbolic
functions, for they are not capable of doing more.

Besides, respect for law as law is pretty well dead in urban America;
proving that it was never in fact necessary to the continuation of civil
society. Breaking bad laws with a good conscience is a healthy exercise of
our sovereignty, and no one knows this better than the politicians who make
such laws.

JAY.

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JAY L. LEMKE
PROFESSOR OF EDUCATION
CITY UNIVERSITY OF NEW YORK
JLLBC who-is-at CUNYVM.CUNY.EDU
<http://academic.brooklyn.cuny.edu/education/jlemke/index.htm>
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