Oñati workshop on legal education

by Paul Maharg on 22/06/2009

At Fiona Cownie's invitation I gave a paper at the Oñati Workshop on Values in Legal Education, 23-24 April.  First day, first session was my paper: '"Associated thought"': social software, professional relationships and democratic professionalism'.  Slides here, draft paper here.  Discussion on the issues of technocratic vs democratic professionalism was fairly extended.  

Next up, Silvana Gabriela Begala and Carlos Lista, director of the Institute for the Sociology of Law, on 'Values and the socialisation of law students'.  Fascinating presentation on the subject.  Next, Luis Fernando Perez Hurtado, from Mexico, talked abut the work of CEEAD — Centro de Estudios sobre la Ensenanza y el Aprendizaje del Derecho.  He analysed the values behind professor's opinions in Mexican law schools (and, incredibly, there are over 1,000 law schools in Mexico, accredited by 65 institutions, with most of the staff as practitioner tutors).  Luis visited 45 law schools, sent a questionnaire to over 700 staff, analysing their experiences as law faculty; and over 21,000 law students, analysing their experiences, particularly on values education.  He used stratified cluster analysis.  Amongst many other results, students said that the best and worst experiences were the faculty themselves.  Interesting that students overwhelmingly wanted more practical legal education.  They were clearly highly motivated to enter the profession.  Luis gave us the spectrum of feedback from some students on their experiences, from the highly complimentary to the highly critical, and we discussed why this was so.  Very interesting data that gives us many insights into the experiences of staff and students in legal education in Mexico.  

Following Luis, and then Annie Roche from McGill, were Fiona Cownie and Julian Webb.  Fiona started with the idea that students are taught technical content, drawing on Margaret Thornton's idea that the technocratic becomes normalised (cf Kennedy's reproduction of hierarchy, etc).  Goodrich, 'stealing one's soul', many others have said something similar.  Basically a critique of positivism, as is CLS, and other movements.  In legal pedagogy some scholars have critiqued the idea that pedagogy can be value-free — critical and feminist pedagogies, for example.

Re values and pedagogy, there are no easy answers, nor does educational values talk do that.  What should law teachers do when faced with values in the classroom?  Is moral relativism the answer?  No.  The Rawlsian predicament of persistent and reasonable disagreement is the norm — the problem is how to deal with destructive, harmful conflict arising out of it.  Law teachers need to be values-sensitive — not just to content, but to pedagogic practices.  She quoted, eg, Beilby's 'critical egalitarian' approach with approval.  

She also quoted Fish (of Save the World in Your Own Time).  Teachers can introduce students to new bodies of inquiry and equip students with the skills to deal with them.  In brief, do your job, don't do others' jobs, don't let anyone else do your job.  

Julian focused on 'Values as "threshold concepts" in legal education'.  Values are key to the literature such as Bauman (liquid modernity, technologies of distanciation); disengagement of power from responsibility, etc.  He developed the idea of 'liquid education', characterized by internationalization, massification, knowledge explosion, performativity, production of moral uncertainty, changing academic identities.  By contrast, legal education remains dominated by solid law (eg state-centred law), where 'troublesome knowledge (David Perkins) is relegated to the realm of the technical-rational, where value neutrality helps this process.  

He then focused on 'threshold concepts (Meyer & Land), ie a step or rite of passage in the attempt to understand a subject.  Characteristics: transformative, integrative, irreversible, bounded, troublesome. Two fine papers by Webb and Cownie.  

After lunch, Tony Bradney on 'Lawyers, professional values and university values'.  A liberal education is an education in elite values.  It teaches students to think for themselves, and this an elite value.  Tony took an example of very large English law firms, eg Clifford Chance.  Managerialism is dominant — he quoted the CEO of CC.  Argument, swiftly summarised by Tony, is that universities are not interested in catering to this business model, or indeed (historically) the industrial revolution.  This is particularly true of pre-1992 universities.  At present university law schools teach the qualifying subjects, and to benchmarks.  Benchmarked skills have little to do with doing deals in large law firms.  The values of the liberal law school are not these.  They are the values of personal autonomy, of thinking for oneself.

There was more in the same vein.  I have to say that I don't agree with Tony's position.  That much ought to be clear from my book.  If higher education is to be transformative at all, it needs to take into account the personal quarter of learning which, as neuroscience (to take just one science) reminds us is incredibly important in the learning process.  In education, phenomenographical research into learning tells us that learning is social and personal in so many fascinating ways that ‘thinking for oneself’ is a greatly impoverished shorthand for a hugely complex process.  Second, if our so-called benchmarks are out of alignment with the cultures that we want to educate (and yes, that includes engagement with global law firms), we deal with it and fix them – simple as that. Do your own job, don't let others do your job is one response.  But as in the famous neighbour discussion in Lord Atkins judgment, we need to push the boundaries of the principle, re-define the job (what I argue for in Transforming), and re-engage with the cultures that our students are heading towards.  Third, the Bradleyan model is a version of a whig, liberal view of history, reaching back to Mill.  But the liberal model is already vanishing because its time and place is vanishing.  It is not a foundation stone of our university culture, simply one of many stones in the wall, stretching right back to the eleventh century and forward from us to — whatever and whenever.  Universities should not be thirled to some foundational model of knowledge production & dissemination that is itself the product of nineteenth century modes of production.  Change and transformation is no longer an option: it’s in the very air we breathe, filled with pollutants, plastics, wireless internet (the very building we held the meeting was a silent invocation of how much change has occurred).  It’s really just a question of what we transform into, why and how.

The international seminar itself was quite fascinating, and I must thank Fiona Cownie for her invitation to join the company.  To be listening to and discussing legal education in a northern Spanish Renaissance university building, set in a Basque glen with remarkably Scottish mountains all around – is that a version of heaven?  Early on the first day I ran to the top of the nearest ridge and watched the sun rise in a flawless sky bringing it all to life.

{ 1 comment… read it below or add one }

1 UK Dissertation August 23, 2009 at 12:01

Fantastic post and wonderful blog, I really like this type of interesting articles keep it up.


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