Thinking Critically About Law

A Student's Guide

Amy R. Codling

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317298380
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

So you've arrived at university, you've read the course handbook and you're ready to learn the law. But is knowing the law enough to get you the very best marks? And what do your lecturers mean when they say you need to develop critical and analytical skills? When is it right to put your own views forward? What are examiners looking for when they give feedback to say that your work is too descriptive?

This book explores what it means to think critically and offers practical tips and advice for students to develop the process, skill and ability of thinking critically while studying law. The book investigates the big questions such as: What is law? and What is 'thinking critically'? How can I use critical thinking to get better grades in assessments? What is the role of critical thinking in the work place? These questions and more are explored in Thinking Critically About Law.

Whether you have limited prior experience of critical thinking or are looking to improve your performance in assessments, this book is the ideal tool to help you enhance your capacity to question, challenge, reflect and problematize what you learn about the law throughout your studies and beyond.

Chapter 1

Introduction

Chapter contents

I. TCAL’s aims

II. Why is it important to have an inquisitive mind when studying law?

III. Why study law at university?

Chapter aims and key points

Is there such a thing as a ‘dumb question’? Is asking such a question ‘dumb’ itself? Scientist and philosopher Carl Sagan reassuringly states that there is no such thing as a dumb question. This is because if we do not ask questions, however ‘dumb’ they may first appear, how could we know anything?

There are naive questions, tedious questions, ill-phrased questions, questions put after inadequate self-criticism … But every question is a cry to understand the world.

There is no such thing as a dumb question.¹

Two key questions for those looking to or already studying law that this book Thinking Critically About Law (TCAL) explores are: first, how do you ‘think critically’ about ‘law’? Second, how can you demonstrate that you have thought critically about law while undertaking an English Bachelor of Laws (LLB) degree and beyond? These questions may appear to be ‘dumb’ ones at first because they are so basic. Yet they are fundamental to the attainment of a first-class degree for an undergraduate. To achieve such results you need to, first, acquire a clear understanding of your own answer to questions such as what is ‘thinking critically’ and what is ‘law’? Once achieved, second, you can demonstrate your understanding and ability in your assessments. These elements do not happen in isolation from one another; as the old saying goes, ‘what came first, the chicken or the egg?’ By thinking theoretically, philosophically and creatively as well as reflecting upon your thoughts and study skills, you will find that you develop your own understanding of what it is to think critically about law. Once developed, this ability will stand you in good stead over the course of your professional career (whatever you decide to do) and, generally, for the rest of your life.

I. TCAL’s aims

TCAL aims to provide you with essential theoretical and practical guidance for how to engage with thinking critically prior to, during and following graduation from an LLB. It provides advice on how to overcome or avoid receiving the following feedback on your assessments such as:

‘Too descriptive’.

‘More critical analysis required’.

‘Your lack of critical commentary has let you down’.²

TCAL is an essential textbook to have while studying law for several reasons. It complements your core law subject textbooks,³ as well as those on legal skills.⁴ It also complements books on the topic of thinking critically that do not specifically focus on law.⁵ In comparison to books that do consider thinking critically and legal reasoning together (which can be complex to read and lack practical guidance)⁶ TCAL provides a holistic approach to the theory and practice of thinking critically about law. The following pages provide an accessible account of critical thinking and legal theories as well as guidance on how to develop and refine your research and writing skills. In comparison to other legal textbooks, TCAL begins by thinking philosophically and theoretically about critical thinking and law. It contains helpful statements, extracts and activities that have been put together from a range of sources to demystify the process of thinking critically about law.

Note on studies

TCAL also draws upon the findings from original research.⁷ Initially, the survey was conducted by discussions with six law students (two from each year group) as well as seven members of staff at the University of Reading. Further studies (in the form of an online questionnaire) were also conducted with approximately one hundred students and members of staff at Cardiff Law School and the School of Law at the University of Leeds, as well as with professional practitioners in the legal field. The findings from these studies underpin TCAL’s theoretical and practical guide for thinking critically about law.

The difficulty of thinking critically about law

Although critical thinking is a desirable transferable skill to attain at university, it is something ‘that even PhD students often fall short in’.⁸ One reason, asserted by first-year student, for this is that:

I am like: ‘critical thinking, what is that? I have never heard of that.’⁹

Some students explain that their difficulty in thinking critically about law is that they were not given the chance to develop such skills prior to starting at university (whether undertaking law as an A-level subject or not). A cynical response, provided by another student in their first year, is that critical thinking is simply

a vague phrase that is thrown around by lecturers and tutors. Something that is constantly asked of students, yet never taught to them.¹⁰

Others contended that they are expected to demonstrate their critical thought in their assessments without being adequately taught what it means or how to demonstrate it in their work. A student in their final year of study even responded that

I still do not fully understand what exactly is required of me when I am asked to critically analyse an essay.¹¹

To overcome these difficulties and gain an appreciation of thinking critically about law before your final year of study, the key aim of TCAL is to help you move from a descriptive style of work to an analytical approach that is ‘critical’. This is an essential part of the transition from leaving school (or a working environment) to the expectations at university: the place to develop your reflective, creative and critical thinking abilities. Similar to Michael Head and Scott Mann’s book Law in Perspective, TCAL’s aim is to encourage ‘critical, responsible and creative thinking about law’.¹² It aims to focus on stimulating your thought processes to get you away from the idea that there is a ‘right’ or ‘correct’ answer for legal problems to one that is personal, creative and well reasoned.

The importance of critical thought

When asked the question: ‘is thinking critically important to attaining a first-class degree’? ninety-eight per cent of students who took the study thought that it is important to do so, as shown in Figure 1.1.

One of the key reasons that thinking critically is considered to be essential in the attainment of a first-class degree is because it forms part of governmental strategy.¹³ In 2008 the Quality Assurance Agency (QAA) – an independent body that checks the standards and quality of HE in the UK – indicated that those obtaining an honours degree should be able to

[c]ritically evaluate arguments, assumptions, abstract concepts and data (that might be incomplete) to make judgments and to frame appropriate questions to achieve a solution … to a problem.¹⁴

In line with this, many universities include reference to the importance of students’ abilities to demonstrate critical thinking in their institutional strategies. The University of Reading’s ‘Learning and Teaching Strategy’ (2013–2018)...