Last April, I wrote about the now imminent (May 2008) 50th anniversary of Law Day. At the American Bar Association, we’ve produced a planning guide, among other resources, to help bar associations, courts, schools and others conduct programs for Law Day. Appropriately, this year’s Law Day theme is “The Rule of Law: Foundation for Communities of Opportunity and Equity.” Among the resources included in the planning guide is a classroom lesson called “No Vehicles in the Park.” As it turns out, “No Vehicles” has quite an interesting history – and, in effect, is also celebrating its golden anniversary this year.
“No Vehicles” is the quintessential, if not archetypal, classroom lesson of K-12 law-related education (LRE). For years, it’s been used by many practitioners—at all grade levels—as an introduction to law. Dating to the 1960s, “LRE” refers to a form of civic education that, obviously, focuses substantively on law, legal issues, and legal institutions. Emanating from 1960s and 1970s-era “new social studies,” LRE also places a high pedagogical value on teaching law through case studies, role playing and other interactive methods that seek to engage students experientially.
Consider this scenario: “The city of Beautifica has established a large, lovely park in the city.” Following a city ordinance, signs are posted at park entrances that read: “No Vehicles in the Park.” Students are instructed to form small groups and role play as judges asked to interpret this law in relation to various hypothetical fact-situations – children wishing to ride bicycles in the park, a woman with a baby in a baby carriage, police cars chasing suspected bank robbers, and a veterans group wishing to place a tank next to a war monument. Obviously, the activity is a way to explore questions of interpreting legal language, differences between the letter and spirit of the law, and what’s involved in writing commonly understood ordinances – or the consequences of not doing so. Participants can also be asked to draft a better “no vehicles in the park” ordinance.
I first learned of this classroom lesson more than 20 years ago. I loved its simplicity, but evident richness as a vehicle for learning about the fundamentals of law (sorry for the pun). From what I have been able to glean, its origins as a classroom lesson or “instructional activity” are murky at best. It likely dates to the early 1970s, if not before. It remains a mainstay of law-related education.
About 12 years ago I read H.L.A Hart’s The Concept of Law for the first time. Professor of jurisprudence at Oxford, Hart wrote this book in 1961 – it’s still regarded as one of the most important texts in twentieth century legal philosophy. While reading chapter 7 (“Formalism and Rule-Scepticism”), I was immediately struck by the discussion of a hypothetical involving vehicles in the park. Digging a bit deeper, I discovered the real origins of the law-related classroom lesson, which could be traced directly to Hart. In 1958—exactly fifty years ago—Hart published an article in the Harvard Law Review, “Positivism and the Separation of Law and Morals.” In the same issue was “A Reply to Professor Hart” by Harvard law professor Lon Fuller.
At issue, in what is still considered one of the most notable debates in Anglo-American legal philosophy, was a fundamental dispute between the two regarding whether law is inherently “moral” or otherwise fundamentally connected to ethics. As a legal positivist, Hart argued that law, which he saw as a system of social rules, and morals must be kept analytically distinct. This was not to say that moral considerations couldn’t be brought to bear on legal cases, but they would necessarily be extralegal. In short, law as it ought to be and law as it is were separate matters for consideration. In contrast, Fuller, a proponent of natural law, argued that there was a form of morality internal to (the rule of) law. The title of his principal work on this subject, written in 1964: suggests his philosophical position: The Morality of Law. For both Hart and Fuller, the then not-so-distant experience of the Nazi legal regime in World War II (evidently immoral, but lawful?) informed their efforts to grapple with the relationship between law and morality. All this is background for the particular disagreement that arose between Hart and Fuller over “No Vehicles in the Park.”
Here’s how Hart introduces what Harvard professor Frederick Schauer recently termed “the most famous hypothetical in the common law world”:
“A legal rule forbids you to take a vehicle into a public park. Plainly this forbids an automobile, but what about bicycles, roller skates, toy automobiles? What about airplanes? Are these, as we say, to be called “vehicles” for the purpose of the rule or not?”
[An airplane? Interestingly, Schauer (“A Critical Guide to Vehicles in the Park,” presented at February 2008 NYU Law School Hart-Fuller Debate Conference) believes Hart likely took inspiration for the hypothetical from McBoyle v. United States 283 U.S. 25 (1931): Did transporting a stolen airplane from Illinois to Oklahoma violate the National Motor Vehicle Theft Act? The Court held “no,” as the statute did not specify “airplanes” among vehicles covered.]
Hart believed that certain legal rules were commonly understood (constituting a “core”) while others, at the edges, were less so (he used the term “penumbra” to describe this). Hence, while we might disagree as to whether “roller skates” are subsumed under the general term “vehicle,” we could agree, as a matter of consensus, that “plainly” an automobile is indeed a vehicle.
Animating the debate, Lon Fuller offered a challenging counter-example: what if a group of patriotic citizens wanted to mount a working World War II truck—an automobile, plainly—on a pedestal in the park as a war memorial? Would this be a vehicle? It seems to fit a basic definition—functioning, self-propelled on wheels, used to move people or objects. Would this violate the statute prohibiting vehicles in the park? Fuller goes on to argue that it’s not sufficient to simply interpret the meaning of particular words (“vehicle”) – what’s needed is an understanding of the purpose of the law. This purposiveness, ultimately, depends upon an understanding of the morality of law.
In the field of legal philosophy, the Hart-Fuller “no vehicles in the park” hypothetical, continues, 50 years forward, as a significant reference point for discussion. University of Colorado constitutional law professor Pierre Schlag had this to say about it: “Over the years, [“No Vehicles”] has become a nearly irresistible hypothetical. Generations of Anglo-American legal thinkers have cut their interpretive teeth on this hypothetical – striving to advance or defend all sorts of insights about law, interpretation, and adjudication. You can easily imagine how this might happen. It builds on itself. There are the myriad factual variations on the hypothetical.” (No Vehicles in the Park,” SeattleUniversity Law Review, 1999)
The many “factual variations” of the basic hypothetical, of course, relate to particular forms and uses of “vehicles.” This is exactly how the law-related classroom lesson that takes place in “Beautifica” is structured. Fuller’s military truck/war memorial is always one of the examples. Considering different fact situations is what makes the activity fun and engaging, but also can’t help but evoke thought-provoking issues, even such fundamental ones as “what are rules in law?,” “what is judging?” and “what is the purpose of law?” “No Vehicles”—whether debated in the legal academy or role played in classrooms with young students—is a “seemingly simple example” (Frederick Schauer) that can become much more. This is what makes it a classic.
As a classic, there are enduring issues to consider, but there’s also always the potential to find new meanings and understandings. For instance, the classroom lesson focuses on the legal question of “What is a vehicle?” There’s another question to consider: “What is a park?”
To back up a bit, some forms of the “No Vehicles” classroom lesson offer definitions of “vehicle.” What this gains in guidance for students, it loses in subtlety and depth of learning, since how we define a vehicle, legally and otherwise, is at the heart of the hypothetical. Similarly, all forms of the lesson implicitly define a park. They take place in “Beautifica” (with its aesthetic aura) and offer a “background” that sets out this value-laden goal: the city park is “to preserve elements of nature” and provide “grass, trees, flowers and solitude.”
We know, however, that “parks” have both developed historically and, depending on the cultural context, assumed varying forms and fulfilled different purposes. Do war memorials belong in parks? What distinguishes public from private parks? People have different visions about what parks are and what they should be. We don’t have to go back in time or somewhere else in place to find an example of contested visions – consider the contemporary American controversy about the use of snowmobiles in Yellowstone National – vehicles in the park, indeed.
In Anatomy of the Law (1968), Lon Fuller himself took the “no vehicles” hypothetical to the cultural-historical context of the park: “The proper interpretation of the ordinance will depend on the meaning attributed to the institution ‘park’ by the practices and attitudes of the society in question.” (quoted by Steven Winter, “An Upside/Down View of the Counter-Majoritarian Difficulty,” Texas Law Review, 1991)
As we mark its fiftieth anniversary, “No Vehicles in the Park” has had a rich life and should have many happy returns. So far, however, its intellectual life has been a bit schizo, with paths diverging. Consider this perception offered by law professor Pierre Schlag: “Outside the precincts of the legal academy, it is hard to find anybody who cares much about the meaning of an ordinance that reads ‘No vehicles in the park.’” He is evidently unaware of the longstanding use of “No Vehicles” in K-12 law-related education.
To be fair, the disconnect between the legal academy and K-12 law-related education works both ways. Law-related educators apparently have no understanding or appreciation of the origins of “No Vehicles” as a classroom lesson in the 50-year-old, but enduring, Hart-Fuller debate.
In the 1960s and 1970s, law-related education benefited from the contributions of legal academics – such as Harvard constitutional law professor Paul Freund – to help conceptualize, substantively and pedagogically – what law-related civic education as a field of K-12 study should be.
I often feel, however, that law-related education is transfixed in an intellectual timewarp. Where are today’s Paul Freunds? Is there not an ongoing need to conceptualize anew the foundations and values of law-related education, to serve changing understandings and adapt to new conditions and knowledge? For example, how can we make law-related education more open and connected to issues of history, culture, and language? Sometimes we should go back to go forward. Rediscovering the classic legal philosophical roots of “No Vehicles” represents perhaps one small step towards such a new direction.
The views expressed in this posting are those of the author and have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association.