Islamic Law SIG @ UKCLE

Hosted our last ever event today under the HEA-UKCLE banner, a rather poignant moment after 12 years of supporting learning and teaching law. I’m pleased to say it was a good event to share with our community, particularly on a topic of growing importance. The main event was a presentation by Professor Mashood Baderin of SOAS looking at the teaching and learning of Islamic Law in UK universities. It was an immensely engaging and quite provocative presentation that sought to deal with both conceptual and practical aspects of building an Islamic Law curriculum in the UK. Mashood’s core contention was the need to treat Islamic Law as ‘Law properly so-called’ rather than ‘a different kind of law’ or even as a marginalised or inferior subject of comparative analysis. This would require us to take, he suggested, in Western jurisprudential terms, a positivist and realist perspective on Islamic Law (and note, Islamic Law, not just Islamic jurisprudence). The presentation also emphasised the need for UK legal education to provide more than a general introduction to or education in Islamic Law, but to develop a cadre of ‘home-trained’ lawyers with a good knowledge and understanding of Islamic Law. This would require us to go beyond a kind of ‘hot topics’ approach to the subject – what Robert Gleave has criticised as a “service industry” approach to Islamic Studies moregenerally – to developing something more sustained and fundamental. To this end Mashood shared his thoughts on what a four-year combined honours degree in Common Law and Islamic Law could look like. Needless to say, a lively discussion followed which ranged across issues of pluralism and the secularisation of Islam (and whether we should perhaps be talking about Muslim rather than Islamic Law as a way of acknowledging the place and function of the state), of traditional and modern approaches to teaching Islamic Law and legal methods, and discussion of appropriate sources.

The issue of sources led us neatly into the second presentation of the day, by Jonathan Ercanbrack (also SOAS) explaining what was happening on the UKCLE-funded Law of Islamic Finance Bibliography Project. Jonathan’s presentation took us through some of the particular resource problems for Islamic Law studies and the limitations of conventional bibliographies and bibliographic tools. This project by contrast, is developing what will ultimately be a public resource, using the new multi-lingual functionality being built-in to the web-based (open source) Zotero bibliographic application. Speaking personally, Zotero has rapidly become my app of choice for building my own reference libraries, and it was great to see it’s functionality being used in this way.

Finally, we had a group discussion about the next steps for this Special Interest Group, post-UKCLE. It was encouraging to see the level of support from colleagues, and I feel confident that we have created something that will have an independent future. Plans for a steering group are being put in place, and hopefully a conference in 2012. Watch this space!

Should legal ethics be taught at the academic stage #2

In response to my previous post, there’s an interesting comment on the Canadian situation by Paul Paton over at Legal Ethics Forum:

“‘Interesting Canadian Development’ Alert — This is a debate that some (including Brent Cotter, Richard Devlin, Alice Woolley and I, amongst others) tried to ensure got attention in Canada. A report of a Task Force of the Federation of Law Societies of Canada (an umbrella group of provincial regulators)on the Canadian common law degree last fall recommended that the Federation “should require applicants seeking entry to bar admission programs to demonstrate that they have had specific instruction in ethics and professionalism, in a stand-alone course dedicated to the subject.” There was fierce resistance from some quarters (including at my old shop north of the border) to being told what courses they had to include. Mercifully other more enlightened places (like Brent’s, Alice’s, Richard’s schools and others) have made a course in legal ethics/professional responsibility mandatory. I’ll be writing more on this in a comparative context but I look forward to the discussion at ILEC. [Even though I'm in the US I chair the Canadian Bar Association's National Ethics and Professional Issues Committee in 2009-2010 and the issue has had no traction in that venue, sigh].”

Rethinking the landscape of education

I have been thinking quite a lot lately about the future of legal education, partly because I had agreed to talk about that at the Society of Legal Scholars Centenary Conference this week (more about that in a future post), but also because there is currently an enormous amount of policy discussion on education futures in general. One of the things we in higher education have, I think, to take much more seriously is the relationship with prior learning – both in terms of content and process. There is still very little notion of higher legal education as part of this much larger learning continuum.

I recently came across a set of webcasts by Helen Haste of Bath University and Harvard Graduate School of Education. These illustrate some of the challenges we face and show how (some) educationalists are thinking about the transformative role of pre-tertiary education in a way that generally we are not in HE. I got to know Helen and (more particularly) her work in moral education through one of my PhD students when I was in Bristol, though I’m sorry to say I haven’t been in contact with her for some years. I find her writing often inspiring and always extremely challenging (in a good way!) – strongly constructivist, with a real sense of the difference education can make to individuals and their communities.

In one of the clips Helen refers to the need to develop in students five core ‘competences’ necessary to the 21st century:

• Managing Ambiguity. “…managing ambiguity is something we have to teach, because we have to counter the story of a single linear solution.”
• Agency and Responsibility. “Being an effective agent means being able to approach one’s environment, social or physical, with a confidence that one actually will be able to deal with it.”
• Finding and Sustaining Community. “Managing community is partly about that multitasking of connecting and interacting. It’s also, of course, about maintaining community, about maintaining links with people… and of course recognizing also that one is part of a larger community, not just one’s own private little world.”
• Managing Emotion. “it’s about getting away from the idea that emotion and reason are separate… Teaching young people to manage reason and emotion and not to flip to one or the other is an important part of our education process.”
• Managing Technological Change. “When we have a new tool, we first use it for what we are already doing, just doing it a bit better. But gradually, the new tool changes… our social practices.”

I suggest these have considerable continuing relevance for undergraduates as well as school students.

Helen also refers to Beyond Current Horizons, a UK government project, for which she is lead on youth identity, community and citizenship, which we should also be aware of in thinking about the direction in which HE is moving. In the final clip in the series she describes how lessons learned from this experience, together with her work on a model of the human as tool user, have led her to rethink the priorities for education. You can access the webcasts from this link. Sorry, because its in Real Player format, I can’t embed the clips here, but they are worth viewing.

Legal Ethics

My former colleague John Flood is a visiting professor at the University of Miami this semester, where they have got him teaching the compulsory Professional Responsibility course. In a recent blog entry John has rightly described professional responsibility and ethics as the lost territory of English law. “Why is it”, John asks, “that the business schools have been able to grasp the importance of teaching ethics, but law schools haven’t?” A good question – and one I’ve commented on in response to John’s entry, but I hope its worth expanding on that response here too.

John tends to point the finger at professional disinterest, and I’m sure that plays a part. The glib answer to the English denial of legal ethics has tended to be “no Watergate” – ie there has been no major crisis of professionalism that has forced the profession (and the academy) to seriously confront the problem. But I doubt that’s the whole story.

Without trying to be exhaustive about it I think there is a range of factors. The English began codifying their professional conduct standards only about 70 years after the US – so the law of lawyering itself is still not as established a part of the culture. The greater separation of academic and vocational education I’m sure is also pretty key, and with it the tendency both of apparently vocational subjects, like ethics, to be marginalised in the academic curriculum, and of the vocational courses to lack the critical, engaging approach that we see in the best professional responsibility courses in US law schools. Consequently we also still lack any kind of critical mass of scholars. There are few discrete courses on legal ethics at the undergraduate stage in the UK, and it is notable that in the 10 years since Kim Economides and I started editing our journal Legal Ethics, the numbers of British scholars regularly contributing to the field has not significantly increased – indeed the gravitational pull on the journal has been southwards, with Australia now providing the greatest number of contributions. This is hardly surprising given that ethics is now far more established as a standard part of the Australian LLB.

Is this likely to change? In some respects its quite difficult to be optimistic. The Lord Chancellor’s Advisory Committee pushed for a greater emphasis on ethics in its First Report published in 1996. This created a definite flurry of activity in the mid to late 1990s (of which we were part), but as I’ve just observed, it has not really been sustained. The Law Society subsequently set up an Ethics Education Forum to advise it specifically on ethics education in its work on the Training Framework Review, though quite what effect that body had is now hard to ascertain. Its regulatory successor, the Solicitors Regulation Authority, has recently commissioned Economides to review the terrain and make further recommendations. The outcome of that process remains to be seen, but whatever Kim Economides recommends is likely to meet opposition. There is no desire among academics to re-open negotiations on the Joint Statement that govern the professional requirements for the LLB, and some, perhaps understandable, reluctance to see these foundation subjects extended. A deepening of ethical training at the vocational and work-based learning stages of training might prove easier to implement, though that might still seem to be too little, too late. And to introduce more ethics at any stage will mean that teaching ad training institutions will have to address a significant knowledge gap.

At the same time these arguments are surely all wearing a little thin. Our approach is now significantly out of line with most of the major Common Law jurisdictions. We have confronted knowledge gaps before, and survived, and there is already a solid foundation of academic literature on which to build. Moreover there are numerous ways in which a more intellectually satisfying legal ethics (which could be informed by moral philosophy, axiology, the history and sociology of the professions, etc) could enrich both the academic curriculum and vocational training, and help us take the study of the legal profession itself more seriously. There is probably more pedagogic literature on teaching legal ethics than on most substantive parts of the curriculum. In short, the tools are all there. in this context, for legal educators to continue to deny ethics a serious place in the law curriculum starts to look like not just a failure of our ethical imagination, but an abnegation of our own professional responsibilities.