Pressing problems MLR seminar, final thoughts
The seminar organisers based the conference on a book of essays edited by Peter Birks entitled Pressing Problems in the Law. Vol 2. What are Law Schools For? and published by OUP in 1996 (hereafter, ‘Birks’). I remember buying it around 1997 or 1998, second-hand, from Voltaire & Rousseau, in Glasgow. Five years out from my law degree at Glasgow U, I found it baffling: frustrating reading, variable in quality, challenging little that I thought needed radical change in the way that law schools constructed legal education.
The conference was basically structured around Birks’ question, which can be asked in quite a few ways, depending on where you put the emphasis: /are/, /law schools/, /for/. All versions, though, pre-suppose the existence of law schools. To that degree, it’s not a particularly radical question, for when one makes such pre-suppositions they are always on the basis of current schemas and actual models. The question therefore invites description, not challenging analysis, of what is already out there in the world.
In my plenary (slides at the Slides tab above), I tried to address the idea of constructing purpose from lived reality. One way of understanding the question is to go meta-, and to see it as asking, how do we interpret law schools? This is a question of hermeneutics, and goes beyond texts: the question involves practices, relationships and understandings that are bound by culture, history and epistemology – hence the title of my paper. As David Jasper puts it in his fine introduction to the critical method, hermeneutics ‘is about the most fundamental ways in which we perceive the world, think and understand […] and legitimate the claims we make to know the truth’. We can see this happening amongst authors, historically, culturally, creatively. As Harold Bloom points out in The Anxiety of Influence, W.B. Yeats’ relationship to his Romantic predecessor Shelley was crucial to his early development as a poet and involved not just ‘influence’ but, antithetically, the struggle to escape the brilliant shadow of the earlier Other. In a similar way, Yeats’ political poetry was crucial to Heaney’s, with both splicing ancient and contemporary Irish history; and Yeats was a Shelleyan figure for Heaney. Both Yeats and Heaney took approaches that were at once complicitous with the earlier Other, and contestatory too; and both used the device of a clinamen (Bloom’s term), a creative swerve around the presence of the powerful predecessor, to establish their own creative ground.
So what are the hermeneutics of legal education? I would say that they include six tropes, to use Bloom’s critical rhetoric:
- How we read our educations, how we understand different traditions of legal education against each other
- How in a degree curriculum, a syllabus, a lecture/seminar/workshop we read the parts up to the whole and the whole down to the parts
- How academic degree learnings integrate or not with professional learnings
- How we compose in report genres for regulatory bodies; how we REF-write our legal education research, how we (dis-)organize it for ourselves and others
- How we identify and interpret powerful Others for our interdiscipline of legal education
- How we interpret affect, body, rationality, gender, spirit, indigeneity, the meaning of land and species, cultural narratives, sociolegal, anthropological, historiographical research in our constructions of justice, law & learning.
Such readings are never innocent: all are motivated, replete with intentionalities, ambitions, strategies, memories, expectations, desires; and it is these that make law schools at once complicitous in the social situation they find themselves, and contestatory within that situation. The key words in the last sentence are those of John Swales, and in my paper I argued that the contradictory effects of complicity and contestation have three main effects on the culture of legal education::
- We can support neoliberalist tendencies in legal education or we can educate ethically and transformationally. We do both, more often the former.
- We can suppress student agency or liberate it. We do both, more often the former.
- We can ignore / suppress traditions, cultures, or explore, enhance & (re-)use them. We do both, more often the former.
It’s a bleak reading of law schools, but it’s borne out by our recent research since the Birks collection. Re-reading the edited collection for the seminar, I was struck again by a number of comparisons, then and now; and in my list of the more salient below I’ve noted also how the MLR seminar dealt with them:
- Lack of student perspectives and student agency
Early on in his Preface Birks notes the tripartite division of research & publication, teaching and admin/management, which structure informs the rest of the Preface. But they’re not radically questioned. Teaching, note, not learning; so we get top-down faculty views, and similar views of research and admin/management. Student views are almost entirely absent from a book on legal education. Imagine it differently: that students have a strong voice that we listen to, consider and act upon. Imagine the impossible: that students run the law school. This is what happened, historically, as I point out in this article on the earliest university at Bologna:
Constitutionality was critical: the very first subject was Law, the course founded on the study of Justinianic law, the texts of which had been recently discovered, and which opened up radical new understandings of almost every aspect of legal relationships.
In this new gathering of scholars, entirely different from the scholastic gatherings in monasteries or cathedral schools, the students themselves ran the university, in the midst of the city. It is worth repeating this: students ran the university. Over the next century they argued for their rights with Bologna city; they set up collective bargaining and regulatory structures by which they could exist as a corporation. They were the universitas, within the city, and with rights to travel freely to and fro. They hired and fired expert scholars and teachers (who took the hint and formed their own organisation); they organised themselves into self-sustaining groups called nationes, supported each other financially and disciplined themselves and their course structures, resources, assessments. As historians point out, they developed sophisticated systems to protect themselves from sharp practices – for example limiting booksellers’ profits on second-hand manuscripts. The result was the creation of res publica of learning.
This is a matter of fundamental student rights that have been lost generally in the university, the extreme outcome of which we heard about in Margaret Thornton’s resumption of neoliberalist practices, one outcome of which is the construction of students as consumers, and reduction of knowledge and learning to market products. And as Steven Vaughan (now Prof – congrats Steven) pointed out in his plenary, we know so little about our students. I couldn’t agree more. There is general data from HESA, inconsistent datasets from individual institutions, but the largest database is that of the NSS, which is focused again on consumerist satisfaction, that never asks students to imagine law schools differently, and that has serious negative consequences for innovation and creativity in the curriculum.
The MLR seminar did have representative student voices – it opened with interesting research on what students would do to change legal education, introduced by Elaine Hall and Samantha Rasiah (herself a doctoral student in legal education). But I think that if we to turn to students and ask them what they really thought law schools were for, many of them would give us answers we wouldn’t enjoy hearing. There were certainly uncomfortable answers in Samantha’s research. Above all, there was little in either Birks or the seminar about how student agency can be developed. More of that in the next item.
- Lack of interest in any technology, digital or otherwise
To which you might say, well the book was published in 1996 not 2006 or 2016. But as I’ve pointed out before, the digital revolution had already begun. Others were enthusiastically taking up the challenge. In the 1980s Chicago-Kent Law School began the development of databases for legal research and analysis, based in part upon their pioneering annual survey of computer technologies in use by the 500 largest law firms in the USA; in Anglo-Saxon studies, the Beowulf Workstation (1990), original files here; or in ancient Greek literature, the Perseus Project (1987). In UK law schools, academics were slow to respond, still are, with notable exceptions. The formation of BILETA was an early inspiration, but beyond IOLIS, the Scots Courseware Consortium, SIMPLE and a few others, there are very few sustained initiatives. The literature comprises one-off projects while the dismal influence of MLEs continues apace and corporate publishers are positioning themselves to reap profit from law schools and students Having been involved in constructing early hypertext clusters since 1989 to help improve student writing, I was struck by the absence of debate in Birks’s text around the emerging digital context. Was it considered and dismissed, or considered at all?
Technology was something of a sub-theme at the MLR workshop, particularly the role that AI will play in the future; and there were references to robot lawyers, little else. But to do it justice we needed a separate workshop: what is technology for, in legal education? That too is hermeneutical. And it is hugely practical too. How much agency do we allow students in our curricula, in the use of tech in our curricula? When we adopt something like simulation, to take only one example, there are huge varieties of approaches we can take. See this excellent post on agency in online games, A Bestiary of Player Agency, and compare it to student agency in a legal ed curriculum…
- Conservative view of innovation and of regulatory relationship
Ever since deregulation in the 1980s, regulatory relationships had become ever more important for both regulator and regulated in every profession and industry; but while there had been steady development of theory beginning in the 1980s, little of this filtered down to actual relationships between regulator and regulated. This was addressed in part in Birk’s book by the Nigel Savage and Gary Watt chapter, and by the jurists (discussed below); but not in an extensive way, nor bringing in research in regulation to bear upon the specific issues.
In the MLR workshop, Steven Vaughan made it the focus of his research on the Foundations of English legal education; and others dealt with it in papers on the SQE. As we pointed out in LETR six years ago, though, we need much more energy and understanding of the research on the subject if those relationships are to be seriously reformed.
- How radical were the jurists in the collection on educational issues
Some contributors in Birks, eg Markesinis, speak more of their research field than legal education, and when they do address the latter, tend to be relatively conservative in their views, simply describing the state of legal education c.1996. Not so Goodrich (‘Of Blackstone’s Tower’) and Toddington (‘The Emperor’s New Skills’), who were for me the most impressive critics of law school culture and law school education back in 1998, and remained so in my 2019 re-reading of the volume.
Similarly in the MLR seminar. I was impressed (as I was in the recent five-year retrospective LETR conference held in Leeds) by Luke Mason’s paper that riffed on Goodrich’s title: ‘Birk’s Tower? Legal science as the sine qua non of the law school’. I was also impressed by Chloë Wallace’s paper on ‘Beyond the Jurisdiction’, which resonated with what I’m about to say in the next point. In my plenary I set out three approaches to legal education where I and others draw upon different bodies of research literature: transactional learning, the extended CHAT theory, and diegetic learning, all of which are critical of law school educational theory, together with a case study of new forms of facilitation, by simulated clients (see slides for more detail).
- Almost no mention of any jurisdiction in the UK except England.
In Birks, there was recognition of the distinctiveness of continental European law schools, particularly Germany in that chapter; and of North American schools. Nothing about Wales, N. Ireland, and a couple of general comments about the legal system differences in Scotland – a classic instance of both English exceptionalism and English imperialism. In the MLR Seminar Chloë critiqued the psychological and relational dynamics of this England-centred narrative in a fascinating paper on point of view in global legal education, where she drew attention to the diversity within our disUnited Kingdom.
In my plenary I addressed this by discussing the instance of a unique shift in pedagogy in Scottish eighteenth-century legal education. We can start with George Jardine, Professor of Logic at Glasgow University, 1774-1827, whose approach was to introduce students to what he regarded as mental faculties, such as perception and attention, and Jardine explained these in terms of ‘tools and engines that were ‘to be used in every activity and disquisition [ie written or verbal presentations]’. To assist in the development of such tools Jardine abandoned the dictation of notes at lectures and instead developed extempore questioning along with sections of more directed talk, his aim being what he called an ‘easy dialogue’ with students.
If we turn to legal education in Scottish HE of the period, then as Cairns points out, earlier seventeenth century educational practices tended to be highly prescriptive, and emphasized note taking, rote learning and memorization of principle and case. These were derived in part from scholastic models stemming from Renaissance interpretation of classical rhetorical models. In the eighteenth century enlightenment, however, educators drew upon new models of rhetoric and education. Adam Smith, Lord Kames (one of whose texts had the Deweyan title of Introduction to the Art of Thinking), John Millar, Francis Hutcheson and others focused on reasoning, and moral and ethical analysis. Adam Smith’s lectures on jurisprudence, delivered at Glasgow University when he was Professor of Logic and later Moral Philosophy is a good example, in both content and (by many accounts) delivery, the lectures were the opposite of the older style of legal education. Smith took account of new forms of knowledge, new interdisciplinarities, as did Adam Ferguson at Edinburgh University in his Moral Philosophy lectures. Smith’s Lectures on Rhetoric and Belles Lettres took a modern turn, for example, eschewing the conventional approach to rhetoric as comprising forms of persuasion, and defining it as communication in most of its contemporary social forms. He also followed the precepts of Henry Home, Lord Kames, a judge in the Court of Session and an unjustly neglected figure in the history of legal education in these isles. Kames’ emphasis on reasoning in one text (Home, 1764) was balanced in another that focused on the development of ‘sensibility’ in legal education, a unique approach that remains to this day still a subaltern focus of study in legal education (Home, 1781).
In this example, the social and the literary and philosophical culture of enlightenment Scotland affected contemporary practices and theories of legal education. Law schooling, then as now, is less of an ever-present participle and more of a series of highly local responses to both local and broader changes to social, intellectual and cultural conditions around the activity of learning the law – responses saturated in history and culture.
And yet in Birk’s volume there is scarcely any recognition of the diverse and divergent traditions of legal education in Scotland, either historical or contemporary. In recent years this divergence has grown significantly. Since the re-constitution of the Scottish Parliament two decades ago there has been a resurgence in Scottish constitutionality and public law discourse, while the decision of the Scottish Government to honour the concept of education as a public good and abolish fees for home students across HE stands in striking contrast to the marketized, neoliberal approaches of successive Labour, Coalition and Tory administrations in Westminster that loaded students with debt. To be sure, that decision creates its own difficulties, but the determination to keep HE free of fees for home students is a massive achievement. Birks et al, of course couldn’t be aware of all this subsequent history; but what struck me was that, apart from Chloë Wallace’s paper, there was little mention of any of it at the MLR seminar.
Three final points… Birks was rather pleased with the state of research (pp.vi-viii). Even in 1998 I was taken aback by that. Having come from disciplinary traditions in the Arts and Education, I was astonished and still am, at how poorly developed is the literature of legal education. And how badly organised. I’ve spoken about this before so won’t go into it again. But if we’re going to ask what law schools are for, we need to look into what others have said they’re for, in the past and in the present, as well as think about what they might be for; and that needs an organised literature.
A couple of times in the MLR seminar the question was asked, of the many high-quality specialists in law in English law schools, why don’t many of them publish more in legal education. It struck me as bizarre. They don’t write because most probably they don’t read the specialist literatures, are not especially interested in them, and so when they do write about their own or others’ experiences, it tends to be rather naive, more opinion than anything else. How could it be otherwise? Of course, it’s part of the baleful divide between conventional research-oriented legal academic careers ie research in substantive law, and legal education research-oriented careers; and it’s a divide that ensures that legal education researchers are by far treated as inferior in status. Education is one of those topics, like money, sex, politics, on which everyone has something to say, which is fine as far as it goes. But opinions aren’t research. I wouldn’t dream of entering the lists on Delict or Unjustified Enrichment or any other area of law whose literature and ideas I’m not well acquainted with; and I expect the same respect to be accorded to legal education.
At the panel session someone asked about PhD programmes. I agreed with Steven’s comment that they tend to promise more than they actually contribute to a career. I’ve rarely been involved in doctoral supervision for that reason, and others. In spite of the vaunted academic apprenticeship that they offer, in practice they’re another form of money-making by law schools, and in the UK often driven by the terms of the REF, which counts doctoral numbers, scholarships etc as part of the scholarly research environment. But the conditions of doctoral studies are almost never replicated in an academic career. Who is given three years full-time to go off and think and write and produce a text that may or may not be published as it is, almost certainly not? That’s not an apprenticeship for the rest of one’s academic career. If there is to be a doctoral programme, it should be embedded in work, be part-time, and link strongly to the rest of a person’s career and life. I love working with other academics, other professionals, especially younger colleagues, and have done so many times, and as I’ve got older I’ve felt the strong need to bring on younger colleagues, give them assistance and opportunities to have a career in legal education and to publish. But I’ve always felt uncomfortable about taking part in doctoral supervision. And to be honest, it also stems from my own largely frustrating experiences as a doctoral student in Edinburgh University Eng Lit Dept. I describe some of that, and how we might move beyond the constraints of the apprenticeship model, in this post.
I was going to write a quick wrap-up post when I got home to Scotland; but the above 4k or so words are evidence that the MLR seminar format and content was stimulating and occupied quite a lot of thought in the last couple of weeks. It raised many important issues for those of us working in legal education and certainly made me think anew about some of them. I hope there’s a publication arising from it, either in the MLR or, if the Review is daft enough to pass it over, in the Emerging Legal Education series, if my co-editors agree with my judgment. My thanks to Rachel Dunn and Victoria Roper and the rest of the Seminar Committee for their kind invitation to give a paper, and for organising such a successful seminar.
Tags: Birks, Harold Bloom, hermeneutics, legal education, MLR seminar, simulation
Copyright © Paul Maharg [Pressing problems MLR seminar, final thoughts], All Right Reserved. 2019.
- Jasper, D. (2004). A Short Introduction to Hermeneutics. Westminster John Knox Press, Louisville, London, 3.↩
- From an article where Swales discusses Giddens and sociolinguistics: ‘Of particular interest to [sociolinguists] is Gidden’s insistence that alongside political, economic and legal institutions there are linguistic and rhetorical rules and resources which are also institutions. Among these he instances ‘symbolic orders, or modes of discourse, and patterns of communication’. […] My attempt to address some of the wider issues […is…] both complicitous and contestatory’. Swales, John M. (1993). Genre and engagement. Revue Belge de Philologie et D’Histoire, 71: 687-698. Available at: https://core.ac.uk/download/pdf/3146180.pdf↩
- Verger, J. (1992). Patterns. In A History of the University in Europe, General Editor Walter Ruegg. Volume 1, Universities in the Middle Ages, edited by H. de Ridder-Symoens, Cambridge, Cambridge University Press, 35-65; 47-49.↩
- See, eg, de Hamel, C. (2013). The European medieval book, in The Book: A Global History, edited by Michael F. Suarez, S.J. & H.R. Wooudhuysen, Oxford, Oxford University Press, 59-79; 67-8.↩
- See for example OUP’s entry into the market with online resources, or Pearson’s initiatives.↩
- Though I should add that his delivery made liveblogging nigh impossible. First 10 mins or so spent talking to a title slide, bottom left the words ‘legal science’, top right a Bauhaus graphic of a microscope, inducing a sort of zen state with this mandala, followed by a 10 mins frenzy of ppt slides with great ideas & arguments… Yr intrepid correspondent was left with a smokin’ keyboard↩
- Here I quote from and rely upon David Hamilton’s excellent account of curriculum change in eighteenth century Scotland. See Hamilton, D. (1989). Towards a Theory of Schooling. Falmer Press, Lewes, East Sussex. Especially chapter four: ‘Adam Smith and the Moral Economy of the Classroom System’.↩
- See Cairns, J. (1991). Rhetoric, language, and Roman law: Legal education and improvement in eighteenth- century Scotland. Law and History Review, 9(1), 31–58; Cairns, J. (1992). The Influence of Smith’s Jurisprudence on Legal Education in Scotland. In P. Jones & A. S. Skinner (Eds.), Adam Smith Reviewed (pp. 168–189). Edinburgh: Edinburgh University Press. Cited in Maharg, P. (2019). ‘Same as it ever was? Second modernity, technocracy and the design of digital legal education’ in Catrina Denvir (ed), Modernising Legal Education, Cambridge University Press, Cambridge.↩
- Cairns 1992, op cit.↩
- By his own account Ferguson’s style of lecturing was relaxed and wide-ranging in its reference. Of his course on Moral Philosophy and Pneumatics he observed to students, with Schönian reflexivity, ‘You are at once the Subjects, the Evidence and the Judges of what is to be advanced’ (Ferguson, 1775, 4 and verso). Ferguson also offered advice on how to study: ‘I think it is a hard and unprofitable task to attempt writing the Lectures. They are delivered to be understood not to be written. It may be useful nevertheless to take some short notes in aid of the memory and afterwards compose for yourselves what you conceive on the subject of each days Lecture.’ (1775, 16). As I point out, Ferguson expected students to read fairly widely in the texts mentioned on his course, and he also expected coursework to be carried out by students (Maharg 2007, 108).↩
-  See Smith, A. (1762). Lectures on Rhetoric and Belles Lettres. (J. C. Bryce, Ed.) (New Edinburgh edition). Indianapolis: Liberty Fund Inc, at i.133. In Scotland the wider context of this revolution in rhetoric includes the influence of French philosophes such as Diderot and Rousseau. In also includes the interest in oral literatures and cultures, in itself the continuation of a historiographical tradition stretching back to the Renaissance (Allan 1993), and the celebration of common speech in poetry – the work of Robert Fergusson in urban forms and Robert Burns in rural forms and the revival of the song tradition being examples of the latter.↩
- But his Preface contains not a single reference to educational research, while making large assertions about legal education and professional education.↩
- See eg Maharg, P. (2019, forthcoming). Prometheus, Sisyphus, Themis: Three futures for legal education research. In Golder, B., Steel, A., Nehme, M., Vines, P. Imperatives for Legal Education Research. Then, Now and Tomorrow. Emerging Legal Education Series. London, Routledge.↩