Holding a mirror up to nature

Rather belatedly I have caught up with a discussion over at Richard Moorhead’s Lawyer watch blog, in which Richard looks at the College of Law’s new two year LLB and questions the extent to which it is likely to be as different from other LLBs as it claims to be. A critical point in Richard’s argument is that

The real, intellectual difference between the College’s approach and the traditional law school’s approach is most likely between the College’s emphasis on teaching students in the practical utility of law. In the College this is likely to lead to solid practical teaching of solid practical legal skills in determinedly practical contexts. A bit of this is a good thing.  In fact, problem based learning is well established in some undergraduate curricula already.  But to concentrate on this to the exlcusion of everything else?  That gives me concerns.  Students are likely to be well trained in a mechanistic way but will they be inspired?  Will they understand the broader picture? Will they develop critical thinking skills?  The key thing that an excellent University education provides beyond the basics is those moments of inspiration, where the student’s world view may be genuinely transformed.

This post generated a number of interesting responses, including a thoughtful post from the College’s Scott Slorach. Amongst a range of points, Scott takes on Richard’s concern that the College will not address the ‘broader picture’, as follows:  

The broader picture is the understanding of the practical, contemporary contexts in which legal principles are applied in order to facilitate transactions, assert rights, allocate risk, seek remedies, govern businesses, define relationships, and so on. Providing this broader picture of the interests of individuals and businesses, and how practising lawyers use the law to maintain, develop and protect these interests is paramount to a deep understanding. I agree with you entirely that an excellent education should be one which provides the “spark [which] is necessary for life-long learning, commitment to professional ideals and to produce the truly exceptional individuals who can cope with transformative change. It is also necessary for the quality of university as a life experience.” I believe that providing students with the aforementioned broader picture will create an environment where the sparks will be in the form of “Now I see why…”, “So that’s how you can…”, etc. That is, understanding not only what the law is, and why the law is as it is, but, most importantly, how it can be used practically for the benefit of individuals and businesses. It is this latter relevance which can provide understanding and continued motivation to learn from the start.

Now we could, of course, just mutter that there is room for many approaches and respect the virtues of a thousand flowers blooming and leave it at that, but I can’t help but wonder if there isn’t something fundamentally a bit troubling about Scott’s response.

I agree absolutely that degree level education needs to address the various dimensions of “what”, “how” and “why”, but I am concerned that what Scott offers is (i) not necessarily a “broader picture” – though it may be different from what many law schools currently offer – and (ii) both (as that paragraph demonstrates) an elision of the how and the why, and a prioritisation of a particular how that may be ethically troubling. If we present law in a primarily vocational setting that emphasises the ‘use of law for the benefit of individuals and businesses’ that seems to fit rather well with the utilitarian ethos of the times. It is pragmatic in a way that may well attract students focused on their future job prospects, though they may not actually have a great grasp of what will best equip them for the marketplace, and it may be moot whether any law degree presently fits that bill (which is, of course, one of the questions LETR is looking at). But is it what our students, and society, actually need a higher legal education to be?

At the risk of over-simplifying the issues, I worry that Scott risks prioritising a hired gun model of lawyering, by narrowing students’ understanding of the social context in which law operates to the horizon of the prospective client. Doesn’t a deeper and broader understanding of context require a grasp of the wider social functions and moral ambitions of law, and doesn’t the examination of that require some commitment among teachers of law to understanding and researching ‘law in action’ (a wider concept than law in practice?) and, dare I say it, a philosophy of both law and education, not just training? Law degrees probably should engage with the practice of law more, and I absolutely agree that understanding ‘why’ in a practical context can be a really useful trigger. But its not the only one. A wider understanding of the social context enables us to shine a critical light on, not just hold a mirror up to nature. And isn’t that the way it should be?   

 

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“A falling angel”: reflecting on the Learning in Law Annual Conference – Day 1

The 2009 LILAC conference started at Warwick today with just over 200 delegates registered – a new record attendance! It is a packed programme, but here I just want to offer some preliminary and pretty much ex tempore thoughts on the keynote address. Professor Ian Ward of Newcastle University gave an engaging, often entertaining and highly thought-provoking presentation on the theme “Legal Education and the Democratic Imagination”. Ian would be the first to acknowledge that he is not first and foremost a scholar of legal education, though a highly experienced teacher of law, so for people like me, who have been doing legal education scholarship for far too long, it was good to have an outsider perspective on some of our debates. Ian did a great job, I think, in reviewing the literature on – and, as he put it, the anxiety still engendered by the basic question of purpose – what are law schools for? This is hardly a new question, but, so long as it doesn’t provoke a prolonged bout of navel gazing it can still serve a purpose in prompting us to really think about the whys and hows of our endeavour.

Having, with Roger Burridge, recently sought to re-ignite interest in the work of Yale ‘law and policy’ scholars Laswell and McDougal, I was interested to see that Ian’s paper also drew on them to justify the view that a primary aim of university education is to ‘promote’ the major values of democratic (liberal) society. This affinity between (legal) education and democracy was then drawn out by reference to the works of three philosophers: the arch pragmatist John Dewey, the neo-pragmatist Richard Rorty and the Aristotelian Martha Nussbaum. The strong link between these philosophical traditions and educational constructionism was not specifically signposted, as it is in Paul Maharg’s recent work, though the conclusion is there to be drawn , and Ward’s conclusions are, I think, largely consistent with a constructionist viewpoint – an emphasis on education as a process of participatory and experiential knowledge-making, and a strong commitment to the ideal of education as a route to human flourishing, particularly through the construction of a deeper intersubjective sense of what it is to be human. Interestingly though, in this process, the emphasis in the paper seemed to shift from a notion of ‘liberal’ to ‘progressive’ legal education – conveying a sense that perhaps not all liberalisms are equally capable of delivering on the democratic imagination?

The paper then focused on the question of approaches to learning. Here Ian drew very much on the resources of his own experience as a teacher and writer within the genre of law and literature, and particularly in his recent work that is moving (as Ian has recently described it elsewhere) towards the construction of a ‘poethics’ of terrorism. I found this compelling; the idea that as lawyers we need to pay attention to Rorty’s ‘strong poets’ of the human condition and to nurture Nussbaum’s ‘narrative imagination’ makes a convincing case for placing literature closer to the centre of legal education. There was, I thought, a strong hint in the paper that Ian, along with many in the critical tradition saw the strangeness of the stranger, the very otherness of the Other, as a (perhaps the) key problem confronting modern social and legal relations. That is a position with which I have considerable sympathies, and I would accept, methodologically, the claim that what Nussbaum has called the art of ‘attentive novel reading’ can be a powerful resource in making the other more real and more proximate. And also more than that, I think. Paul Ricouer – one of our great thinkers on self and otherness, sees the self as derived fundamentally from its narrative location. An answer to the question “who am I?” comes not from some objective truth structure but from the stories in which the person is located. Reading, writing and exploring these stories thus becomes a powerful resource in understanding (constructing) the self qua self, and in relation to (or with) the Other.

Moving in a very obvious way beyond what Ian said, his presentation certainly had me thinking about the ‘how’ of engaging students in these stories. I’m sure there are some useful resources on this within the law and literature scholarship, with which I’m not familiar. I was drawn to another useful/challenging point Ricouer makes, which is that writing isn’t modelled on, and indeed cannot be understood on the model of speech. Writing he argues ‘intercepts’ the relation to the world and the relation between subjectivities that exist in the situation of speech. Writing in other words can be safer, more distant, perhaps more ‘cooked’ than speech. If we are going to treat an understanding of otherness as critical, I don’t think we should treat writing as a substitute for speech forms and perhaps images too that will bring the other closer. I guess I want a larger palette, and I don’t think its just about creating impact – though what it is about I’m less sure. Ian’s presentation brought this to the fore in an interesting way. Near the end he juxtaposed the awful, iconic, ‘falling man’ image from 9/11 with Don DeLillo’s description of the scene in his novel of the same name: “this picture burned a hole in her mind and heart, dear God, he was a falling angel and his beauty was horrific”. The power of each was reinforced by the juxtaposition, one that brought about, partly through language, a different way of not just ‘seeing’ the image but experiencing the event. I was struck, in a way for the first time, by a feeling that the horror of 9/11 as an experience came across actually more powerfully in the falling man than in the image of the planes’ collision with the twin towers, precisely because it reduces the scale of the catastrophe to the level of a single human being: an other that is also me. The potential to embed that kind of transformational – and transgressive – experience into learning about law seems both exhilarating and fundamentally destabilizing.

On my bike (or not)…

The observant amongst you may have noticed (if you haven’t already heard more directly) that I’m doing a charity cycle ride in Kenya in November. The last two weeks of almost incessant rain haven’t done much for the training regime, so the re-appearance of the sun this weekend provided an opportunity to hit the road again, so we (self and intrepid partner) set off yesterday morning to one of our favourite training areas, Draycote Water, near Dunchurch. It’s a reservoir with a five mile tarmac perimeter ‘road’ (mostly about the width of a single track), so its generally a good place to train without getting mown down by traffic. Generally.

Anyhow, yesterday was not that great; there was a strong head/side wind most of the way round and after 10 miles and forty minutes, though we could have done more, we’d actually had enough, so we gave it up on the basis we would do a longer ride today. Arriving at Draycote (again) at about 9.30 this morning, we found there were quite a lot of walkers and cyclists already milling around – a bit of a shock, its usually pretty quiet when we go, but I guess the good weather had a lot to do with it. But the conditions were better, so off we set, occasionally weaving through groups of walkers and families on bikes who happily milled across the full width of the path. About four and a half miles round, I found myself on one of the narrow access roads facing an approaching small car and elderly driver. I mentally paused for a bit, thinking am I going to get through or should I stop? But I figured there was room if the car pulled over a bit and I stuck fairly close to the kerb. Well I certainly got close to the kerb. The car did not pull over, the wrong instinct kicked in and, instead of breaking whilst unclipping my left foot from the pedal to come to a safe halt, I caught the kerbstone and flew off the bike onto the grass (fortunately) verge! As I picked myself up I looked back to see the driver pause long enough to see that I was on my feet before moving off again – nearly mowing down a couple of walkers in the process! Thanks, mate.

So, what’s this got to do with education? Probably not a lot really, I just wanted to tell you what a crappy day I’ve had! But that’s not really true either. Getting back on a bike after thirty odd years has been a slightly humbling LEARNING experience. Its kind of funny being a bit of a novice at something again (I think I’ve reached a stage in life where I usually avoid things I know I’m not going to be much good at!) True, you never quite forget how to ride a bike, but anything beyond the basics still requires quite a (re-)learning curve – in some ways almost more so because you still have the sense of what you could do then. So its actually a bit of a shock to discover what you can’t do now (yet) – like getting your water bottle on the move without falling off or veering into the nearest hedge/car/other cyclist. Without getting too Rumsfeldian about it, there’s definitely a process of discovering what you don’t know you don’t know about your own abilities – both positive and negative! And that’s surely what a lot of learning has to be about. I think I’m going to be nicer to my first years come September; after all there’s an awful lot they don’t know they don’t know – yet.