by Paul Maharg on 21/09/2011

Just dealt with the final queries for our book, Affect and Legal Education: Emotion in Learning and Teaching the Law, edited by Caroline Maughan and myself, which is now in production.  It’s the first book-length study of the subject – astonishingly, given the importance of emotion to teaching and learning.  It’s also another first, being the first book in the series Emerging Legal Learning, series — editors Caroline Maughan (UWE), Beth Mertz (Wisconsin-Madison & American Bar Foundation) and me.  Someone asked me why I got involved in the subject and that got me thinking.  I guess I’ve always been involved in it — back in 2000 I wrote an article for IJLE on Rogers, Constructivism and Jurisprudence, exploring some of the dimensions; and further back, one on the role of emotion in interviewing (amongst other things).

I was thinking of the book when Fiona Cownie gave an interesting talk at SLS a couple of weeks back.  She was describing and analyzing the recent growth in skills literature in legal education over the last few decades.  It is remarkable.  When I was a law student at Glasgow University back in 1990-92, just before the rise of skills texts, we were pointed to Glanville Williams as a general introduction to what was needed.  I remember reading it with puzzlement, not just because an introduction to law written by a professor of English law was recommended to Scots law students, but because the treatment of legal skills was written as if the author had no knowledge of the cognitive revolution in ed psych.  Which of course was exactly the case, given the date of first publication (1953).  Learning the Law was written by a Cambridge law professor (however eminent in criminal law, however elegantly written) with almost no background in educational research literature; and while his criminal work was meticulously updated, Learning the Law, with some minor essential updating, seems to have remained more or less the same, sailing on oblivious to most of the extraordinary changes affecting law schools and education in the last 50 years or so.

I came to law as a mature student, with a grounding in literature, aesthetics and education – adult education in particular.  Prior to studying law I’d been teaching adults.  Classes ranged from adult literacy classes in areas of high deprivation in Glasgow (some adults couldn’t read a tabloid newspaper or sign their name) to medical PhD classes, facilitating doctoral students who had problems writing their theses.  Skills wasn’t something bolted on: it was the essence of what I taught, facilitated and learned.  Later, as a law student, and sweating over nineteenth century Session Cases, or sometimes even more turgid modern legal textbooks, I made a mental note: if you ever become a legal academic, start filling the skills gap in the market.

But when I started to teach law, I hesitated.  When the first legal ed skills texts appeared in the mid-nineties they were focused on specific skill sets – drafting, advocacy, interviewing, etc.  A few dealt with general study skills.  There seemed to be three significant problems with them.  First, they were too general for specific programmes, and would always need to be heavily adapted for classes.  At Caledonian, at the behest of Moira Macmillan, then heading up the Law team, I designed a whole series of skills modules for years 1-4 of the BA Law degree (later the LLB).  In the third level, Clinical Legal Skills, we used Webb & Maughan’s fine Lawyers’ Skills; but even this well-designed text needed to be edited for classes.

Second, quite a few of them (though not all) were written with strikingly little knowledge of educational psychology.  Texts on writing skills would give advice about the product of writing, for instance, but very little on process, and where process was discussed it was with almost no reference to the research literature.  It was as if Perelman, the New Rhetoric, the explosion in compositional studies in the US that revolutionized our view of student writing, the New London Group, multi-modal literacy and much else had never happened; or if it had many of the authors hadn’t heard of it.

Third, many of them ignored the affective context of learning: skills were something to be ‘delivered’ (study programmes as Transit vans) or ‘inculcated’ (the when-in-doubt-reach-for-a-vague-Latin-word approach) or ‘absorbed’ (the sponge method), but above all understood rationally, in part and in whole.  The relational context of learning, the conditioning of prior learning, social and class background, schooling, confidence, identity, feelings, the spiritual aspect of learning’s face – all this seemed to be largely missing.

Commercial context and motives could explain much of this.  Publishers, naturally, wanted to maximize profit so books became generic.  Skills books needed to reify skills, and created fixed objects for national, possibly global consumption (learning as Big Mac).  But legal skills aren’t generic, can’t be consumed: they’re intensely local, deeply personal, fluid and ever-changing ways of being and thinking, frames with which we approach the world, its complex relations and objects.  Learning skills means focusing on process, not product, practising in ever-increasingly complex situations, then critiquing and thinking about context and person, and the truth of the encounter between self and the world; and returning to the world again.  Which of the skills books you read recently come up to that standard?

That’s why I hesitated then, and still do.  And in place of writing a skills text I began to write other texts — articles, chapters, books — that set out to analyze why legal education had become what it was, and how it could be otherwise, how it could be transformed and transforming.  Affect is one of them: a collection of chapters about how emotion is critical to our lives as legal academics, and to the lives of our law students, and why it’s long overdue that we attend to our emotions in our collegial lives and in our teaching and learning.


{ 2 comments… read them below or add one }

1 Caroline Maughan October 4, 2011 at 08:50

I too was a mature student of literature (and languages), and a teacher of EFL/ESL and German in an east London tech college. I got interested in law when a gifted law teacher colleague asked me to help out with explaining legal concepts to overseas students of accountancy who had to do a general principles of law course. He ‘taught’ me one-to-one about the reasonable man (as he then was), parliamentay sovereignty, delegated legislation, basic jurisprudence, etc, and I was hooked. At the time I was fairly disheartened teaching languages – drilling a grammatical structure in true behaviourist fashion one week, and it being totally forgotten by the time I saw the group again – and so the idea of ‘delivering’ a set amount of ‘knowledge’ one week – job done – and going onto something new the following week – was extremely attractive. (How naive was that?) So I made up my mind to study and teach law.

I too was instructed to read Granville Williams’s introduction. This was a strange book which seemed to bear no relation to the discussions I had had with my law colleague and did not help me understand or explain the law on firearms or unfair dismissal to feisty, highly intelligent but poorly educated women from Dagenham who knew much more about these things than I did.

Of course as a language teacher you prioritise communication, constantly checking for understanding, and this shaped my approach to law teaching. It very soon became clear that walking in – delivering some ‘knowledge’ – walking out – coming back next week and do it all again with a new topic – was not what it was about at all.

When I started teaching in HE the legal skills thing in was just getting off the ground. As you said, Paul, the early texts (with some honourable exceptions like Gold, Mackie and Twining) were all about product – and didactic, with few if any practice exercises – and were confined to DRAIN. It was as if legal skills were a new branch of knowledge like contract or tort, with a simplified set of rules which were to be delivered rather than acquired. I met Julian, and the rest is history. Ironic that I had wanted to drop out of skills-based learning


2 Caroline Maughan October 4, 2011 at 09:09

apologies – comment missed the end of the final sentence…

Ironic that I had wanted to drop out of skills-based learning and teaching and so shortly afterwards found myself right back in there again.


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