Transforming Legal Education

Learning and Teaching the Law in the Early Twenty-first Century

Paul Maharg

• Publisher: Routledge
• Year: 2016
• Topic: Law
• eBook ISBN:
  9781351877992
• Subtopic: Law Theory & Practice
• Index: Law

Paul Maharg presents a critical inquiry into the identity and possibilities of legal education, and an exploration of transformational alternatives to our current theories and practices of teaching and learning the law. His work takes the view that bodies of interdisciplinary theory and knowledge of the history of legal education are important to all stages of legal education. He also argues that new learning designs - such as transactional learning - need to be developed to help students, educators and lawyers deal with the transitions and challenges facing them now and in the foreseeable future. Throughout, discussions of theory are spliced with case studies of academic and professional legal learning, particularly in the field of technology-enhanced learning. The content of the book will be updated in a community of practice wiki at http://www.transforming.org.uk, which will also allow readers to comment and expand on the book's final chapter.

Part 1
In(ter)disciplines

Chapter 1
Trading Zones

We demand a rooted place and a dispersed existence all at once

Galison and Jones, 1995, pp. 99

What is written in the Law? What is your reading of it?

Luke 10:26

Legal education. In these two words we are bringing together two very different disciplines – law and education – and in this and the next chapter I’d like to explore just what is involved when we engage in interdisciplinary research and teaching. From the outset there is a key distinction to be made between cross-disciplinary or multi-disciplinarity research and interdisciplinarity, as a Royal Society report on the subject pointed out:

Pulling together a group of experts from different disciplines to contribute to a single project does not constitute interdisciplinarity. Indeed, in most cases the resulting research is multidisciplinary in nature.

Multidisciplinary research involves people from different fields co-operating: working together towards a common goal but staying within the boundaries of their own fields. They may reach a point where, because of the restrictions and limitations of their disciplines, they cannot make further progress. They may then be forced to work at the fringes of their fields, and forge new ones. At this point the research becomes interdisciplinary. (Royal Society, 1996, p. 15)

And there are defensive mechanisms operating at the boundaries of disciplines, as Becher has pointed out:

Tribes of academe … define their own identities and defend their own patches of intellectual ground by employing a variety of devices geared to the exclusion of illegal immigrants. (Becher, 1989, p. 24)

In spite of this, disciplines have for some time now had more of an open architecture than before: trespassing appears to be a common activity, not only between what might be regarded as cognate disciplines such as law, literature, history, theology and philosophy, but between the sciences and social sciences (Klein, 1995). The effect of Darwinian science on Victorian literature, for example, has been charted by Gillian Beer and others (Beer, 1983; 1995; Levine, 1988; Stafford, 1994; Jordanova, 1986). More particularly, the biological hypothesis of organic memory has been analysed by Laura Otis who, in her study, excavates the history of this way of thinking about the body throughout the nineteenth century, and takes case studies of European literature as examples of how the theory was propagated and represented to society. She reveals how the science becomes analogous to other things in literature; and how in turn these things mirror the science to society: ‘[a]s in image reconstruction, the image [of the organic memory hypothesis] became clear only when viewed from many perspectives simultaneously’ (Otis, 1994, p. xii).¹ In jurisprudence, Roberto Unger developed his notion of ‘expanded discourse’ in defence of a version of interdisciplinarity (1983, p. 561); while the concept of autopoesis arose from biological autopoesis, and its application by Piero Sraffa, Nikolas Luhmann, Günther Teubner and others to social sciences, then law in particular.²

Other commentators have observed the topographical metaphor and their language points up the difficulty of the activity. To gain control over knowledge, Foucault has commented, we allocate to it a spatial position, a ‘fix’, between existing bodies of knowledge. Thus contained, we can begin to build a concept of the discipline, create a central core of practices and ideas, guard the penumbral borders between it and other disciplines. But – and again quoting from Foucault – within any present discipline there are fissures, ‘kinds of virtual fracture which open up the space of freedom understood as a space of concrete freedom, i.e. of possible transformation’ (Foucault, 1988, p. 36). These fractures present us with the opportunity of exchange between disciplines as they are presently conceived: exchange conceived as ‘transmissions, transferences, interferences’ (Foucault, 1988, p. 37). Within a discipline, similar fractures occur. Often a discipline will want to deny its origins or distance itself from its rivals and often there will be a number of interpretations of the historical process within the discipline, or rivalry between subdomains within a discipline. Stephen Bann has described this process well with reference to art history:

art history, in defining itself as a discipline over against connoisseurship, understandably took over the positivist paradigm of nineteenth century archival research. But in doing so it also inevitably (though no doubt unconsciously) took over the prejudice which was so ingrained among archive-based historians against the serious historical value of artistic representations of history. (Bann, 1989, p. 104)

As Bann points out here, interdisciplinarity is inextricable from historical process: as disciplines mutate, they are constantly shape-shifting, particularly at the edges where they lie against other historically-adjacent disciplines. That being so, how difficult it is to cross the borders between disciplines depends on the state of the discipline. Some borders are strictly policed; others depend on a form of Schengen Agreement, where there is a complex of understandings about what constitutes good practice in comings and goings; between other disciplines the borders are historical only – the scene of great debates, long since settled or now deemed irrelevant.

However, the extent to which it is possible to ‘forge’ anew, as the Royal Society report put it, is questioned by some commentators. Stanley Fish, for example, has argued that interdisciplinarity, in seeking to eliminate boundaries between disciplines, has set itself an impossible task. According to him, interdisciplinarity can only redraw boundaries, not abolish them. One discipline may annex another, can borrow methodologies, models or theories from another, or a new discipline can be created which takes as its subject the study of disciplines (Fish, 1989). To Fish, then, interdisciplinarity in the form of boundary-abolition is almost a form of indiscipline.

I suspect that Fish is wrong in this view, and I shall say why at the end of this chapter. It is undeniable that boundaries are essential to a discipline, but much depends on what happens at the border crossings: what will be permitted, what will thrive once inside and what will be rejected. If we take a domain as eclectic as cognitive science (which grew from disciplines as amorphous as philosophy, psychology and several medical sciences such as neurology and anthropology) it might have been thought that this subject would have formed its own discipline. As Gardner (albeit hardly a dispassionate observer, but one with inside knowledge) put it, ‘[t]he hope is that some day the boundaries between these disciplines may become attenuated or perhaps disappear altogether, yielding a single unified cognitive science’ (Gardner, 1985, p. 17). The last 20 years, though, have seen less the formation of a new discipline than the growth of sets of theories within the discipline of psychology, many of which have been appropriated in creative and fertile ways by other disciplines.

The situation with legal education (as opposed to law generally) is subtly different. Depending on how one defines it, it can overlap with humane arts, social sciences, economics or business process. It is also an education for a profession. Often the interdisciplinary peripheries and the core knowledge seem to be in tension with each other. But this is a false antithesis. Legal education has always developed interdisciplines for itself. Even Christopher Langdell could not resist the parallels:

We have … constantly inculcated the idea that the library is the proper workshop of professors and students alike; that it is to us all that the laboratories of the university are to the chemists and physicists, all that the museums of natural history is to the zoologists, all that the botanical garden is to the botanists. (Langdell, 1887, pp. 123–4)

How can interdisciplinarity be carried out in legal education? The subject is notoriously difficult to categorise, but we can outline three approaches – interdisciplinarity in subject matter, interdisciplinarity in method and interdisciplinarity as meta-awareness. One can, for instance, deal with what is commonly regarded as legal subject matter but using another discipline’s methodology. A good example of this is the work of Amina Memon on law and psychology, and particularly in the areas of eye witness memory, child witnesses and jury decision-making.³ Memon’s work is clearly of value to legal academics and practitioners, but her research methodology is thoroughly that of psychological data analysis, as are the journals she publishes within and the research groups of which she is a member. Alternatively, one can take concepts and materials from one’s own home discipline and use these within others. Ian Hacking, for example, has described how he exports concepts properly belonging to analytical philosophy into domains as varied as experimental physics and multiple personality (Hacking, 2004). Finally, one can analyse the basic structure of research that is used in another discipline in order to examine how it may be adopted and adapted within legal education.

To exemplify these three approaches, I shall take three case studies. The first is an example of interdisciplinarity in subject matter, as it was embedded in an undergraduate level three jurisprudence module. The second, focusing on the emergence of rhetoric as a discipline, illustrates how interdisciplinarity can be used as a methodology within legal education. The third is an example of interdisciplinary research parallels between legal and medical education.

Case Study 1: 'Representations of Justice'

This case study formed part of a pre-existing module on jurisprudence. The module ran for a full semester (12 weeks) and, before the introduction of ‘Representations of Law’, consisted of two six-week units. The first was a historical analysis of the thought of key figures (Aquinas, Austin, Hart, Finnis, for instance), and the second focused on jurisprudential topics: punishment, justice, Critical Legal Studies and the like. Within this framework, the ‘Representations of Law’ unit was an option in the latter six weeks of the module, so that students could choose this unit instead of the existing topics. Teaching was carried out by a combination of lectures and tutorials, and the module was assessed by essay (30 per cent weighting) and examination (70 per cent).

Tutors were selected because of their practical experience as well as their academic qualifications. They were aware of the aims of the unit, of the need to cohere with each other’s work on the unit, and the thematic basis to the unit methodology. Above all, the unit had to be interdisciplinary from the students’ point of view. It would have been a bar to student understanding of the unit if the separate sections had remained multi- rather than interdisciplinary. We shall see whether that in fact occurred.

If students were to view the unit as interdisciplinary, there would have to be something that bound the units together. I decided to adopt a thematic approach to the units, based on a number of subjects or topoi, in the rhetorical sense. These themes would be based upon the concept of the representation of law in society: more specifically, law as representation. This term was adopted for a number of reasons. First, I wanted to spotlight for students the idea that law is embodied in many ways and by various media in the world, and that we can, as an intellectual task, attempt to understand this process of embodiment. Understanding this task means understanding theories of what we might call embodiment or representation. It also means understanding how such theories are built and how they work in specific contexts in the world. In this approach, specifics were not to be the handmaids of theory: specifics were to embody theory, so that students could examine how theory could be applied to, and was influenced by, specifics. This approach, therefore, was both theoretical and concrete: it aimed to bridge the gap between jurisprudential understanding and student knowledge of the world.

In this sense, I wanted the concept of ‘representation’ to be as general as possible, knowing that students would encounter different aspects of this term from tutors in different sections of the unit. In my introductory lecture I outlined a number of ways in which the idea could be used in different disciplines – in film and law,⁴ in literature and law,⁵ graphical representation in cognitive science,⁶ the computational model of mind and semiotic views of representation.

The unit was divided into four sections:

1. Discourse Analysis and the Semiotics of Law;
2. Indigenous Peoples and Land Law;
3. Law and Literature;
4. Law, Film and Television.

The first unit considered how a number of discourse and semiotic practices functioned within law, particularly with reference to oral and written language. The subtopics included: language, linguistics and justice, forensic linguistics in the courtroom; and the detection of deception in texts. They also included the subject of normal and abnormal communication and the underlying assumptions of these and the implications for law of semiotic analyses within a context of critical theory.⁷ Class discussion and activities centred on definitions of semiotic analysis and application to aspects of language in legal discourse. The final topic was that of miscommunication, and led into the second unit, ‘Indigenous Peoples and Land Law’.

In this second unit, students studied a number of key cases and statutes applying to First Nation peoples in Canada and set these in the context of their lands, history and culture.⁸ The class also learned something of the reality of contemporary First Nation life and culture from their tutor, who had first-hand experience of indigenous communities, the political movements, the effect of SLAPP suits, and the legal strategies by which First Nations are attempting to reclaim rights and lands.⁹ Links were also made between this second and the first unit: Peter Goodrich’s essay ‘Modalities of Annunciation’, which begins with a moving narrative of the evidence presented by the Haida people in their struggle to prevent the logging of the Queen Charlotte Islands, was used to help students apply what they had learned about the process of semiosis to the evidential process in court (Goodrich, 1990a).

The third unit focused on representations of law in literature. These included excerpts from Dickens’, Bleak House, Scott’s, Waverley and Heart of Midlothian and James Kelman’s How Late it Was, How Late and some of his short stories. In the first, students analysed Dickens’ ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• List of Figures
• Preface
• Dedication
• Introduction
• PART 1: IN(TER)DISCIPLINES
• PART 2: LAMINATIONS
• PART 3: METAVERSE
• Afterword: Elective Affinities: Experience, Ethics, Technology, Collaboration
• References
• Index