University of Technology, Sydney Law Review
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University of Technology, Sydney Law Review |
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Penny Crofts[1]
IN ALL WESTERN societies law schools are typically caught in a tug of war
between three aspirations: to be accepted as full members of the community of higher learning; to be relatively detached, but nonetheless engaged, critics and censors of law in society; and to be service-institutions for a profession which is itself caught between noble ideals, lucrative service of powerful interests and unromantic cleaning up society’s messes.[2]
BOTH HISTORICALLY and currently, a stark separation has been posited between theory and practice in legal education. Legal education has been torn between the need to provide general intellectual skills and professional legal-oriented skills. Ironically, the ‘rule orientation’ of much of legal education satisfies neither higher level intellectual needs nor lawyer specific skills. By broadening our conception of the law and the kind of lawyers society may want, the clash between lawyer-oriented skills and general intellectual skills is rendered illusory. Society needs lawyers with legal skills, but also self directed, motivated, lifelong learners capable of coping with change and informed by an overview of the legal system and a sense of justice.
This paper considers community-based projects as one example of the advantages of shifting away from a narrow rule orientation toward a broader view of the law. The projects highlight the commonalities between generic higher intellectual skills and legal specific skills. The major advantage of community projects is their emphasis on context. Students undertaking community projects perceive the interrelationship of different areas of law and the relevance of other disciplines to legal analysis. This is important in terms of encouraging deep learning approaches, but also because in practice, lawyers are required to integrate different areas of law and to utilise a variety of multi-disciplinary skills. Moreover, the contextualisation of social problems encourages students to foster and develop a sense of justice—an awareness of the relevance of the ideal of justice to the legal system and an ability to marshal their legal skills to construct persuasive and influential arguments informed by the ideal of justice.
Section One outlines the historical and contemporary perception of the theory/practice dichotomy in legal education. Ironically, the focus in legal education upon ‘rules’ in the case method satisfies neither theoretical or practitioner needs. I rely upon a seminal work by the legal theorist and educator William Twining, Blackstone’s Tower,[3] to argue that we should adopt a broad view of the law and, consequently, of legal skills. This is in part due to the wide range of employment opportunities available to law graduates, but also because law is so imbricated in the social fabric. A broad conception of the law satisfies general educational needs as well as those of legal education. Section Two of this paper details the assessment regime in the optional subject Criminology which I teach. The focus of this paper will be on community-based projects, but this section describes the overall assessment framework of the subject. In section Three, I consider the advantages of community-based projects through the emphasis on context. I argue that community-based projects encourage students to adopt a deep learning approach to the law. In section Four I conclude by considering how a broader approach to the law, demonstrated by the community-based projects, might encourage students to develop their own concept of, and desire for, justice. I rely upon the German philosopher Habermas to analyse how justice might be taught, even though the concept of justice is complex and pluralistic.[4] I contend that a concept of justice is a desirable lawyer-oriented skill that can be fostered by shifting away from a narrow, rule-oriented approach toward a broader view of the law.
Two major trends can be identified in analysis of legal education. The first trend focuses upon the theory/practice dichotomy and attempts by legal education to straddle this posited separation. The second trend criticises the emphasis in the bulk of legal education upon ‘rules’. In this section I argue that a shift away from a narrow rule orientation in legal education to a broader conception of the law resolves the theory/practice dichotomy.
One of the major trends in legal education has historically been, and continues to be, concern regarding a (perceived) separation of theory and practice in the law school. This dichotomy operates at several levels. It is often used to distinguish the teaching and learning of law in law schools and in practical legal training courses.[5] Historically, the dichotomy referred to the teaching of theory in law schools compared with the learning of practical skills in apprenticeships. The distinction has also been used to refer to the separation of general intellectual development considered desirable in higher education from law specific education.
The historical development of Australian legal education reflected and reinforced the perception that law schools had to choose between providing a theoretical or practical legal education. Historically, Australian legal education has been dominated by the practising legal profession. Law schools were set up not for scholarly research into law, but to provide recruits for the growing legal profession. Whilst any scholarly activity was a by-product, little attention was paid to the practical element of professional training because that was accomplished primarily through a system of apprenticeship.[6] The new law schools established from the 1960s onwards emphasised creative and innovative legal scholarship. Despite these developments, law schools in Australia (and the UK) apparently continue ‘straddling the academy and the profession’.[7] A major concern for legal education theorists and legal practitioners alike is the tension between the study of law and its professional practice.
Recently, a second trend in legal education has been increasing criticism of rule orientation in legal education. The Pearce Report, published in 1987, was the first important review and comprehensive compilation of data on Australian legal education.[8] The Report stated that ‘some law schools are in fact too ‘rule oriented’’.[9] Ironically, this rule orientation in law schools satisfies neither general educational needs nor legal practitioner skills. General educational needs are not satisfied by the current separation of ‘core’ subjects of law into discrete objects of study at the majority of univer sities. Subjects such as Evidence, Criminal Law and Torts Law are taught as complete, discrete entities in and of themselves. This means that it is difficult for students to achieve a ‘panoramic view of the law as an entire discipline rather than a series of discrete and unrelated pigeon-holes’.[10] Many subjects are taught by the case-based method, where students are taught the law by reference to its application at the appellate level to a clear fact situation. The facts are spatially and temporally limited, and students are required to consider the fact situation only as it relates to the specific area of law they are currently studying. The focus on ‘rules’ undermines general educational needs as students do not develop a theoretical overview or understanding of law and the legal system.
The limited focus on rules in core areas of the law does not satisfy practitioner needs either:
Mere acquisition of legal knowledge in law school is of little value to the practitioner because that knowledge can only be a tiny portion of the whole, can be understood only superficially, is easily forgotten or only partially or inaccurately remembered, (d) is rarely needed in practice in the form in which it is learned, (e) is likely to be quickly outmoded and thus dangerous to rely on, and (f) is of little use when new problems need to be solved.[11]
The learning of law through its application to cases is valuable, but it is only one skill necessary to practitioners. The Pearce Report identified a variety of legal-oriented skills including drafting, advocacy, negotiating and counselling.
Additionally, the Australian Law Reform Commission has criticised the focus on ‘rules’ in legal education for sustaining an adversarial system of law. The Australian Law Reform Commission noted that law schools ‘present and transmit powerful norms of professional conduct’.[12] Legal education may unconsciously or expressly teach an adversarial style of lawyering by promoting a court-centred view of the legal system, focusing on appellate and superior court decisions to treat legal principle and emphasising rules of law rather than issues of fact.[13] This may be problematic because the adversarial system of litigation has a number of counter-productive or inefficient consequences including an emphasis on confrontation, the lawyer’s role as partisan and lack of responsibility about how much evidence is collected.[14]
Additionally, focusing on an adversarial approach to law does not adequately prepare students for legal practice, because much of legal work centres on negotiation and non-confrontational activity. This means that a legal educational focus on appellate decisions may encourage students to perceive legal practice as narrowly encompassing a particular form of disputation.[15] A shift away from a ‘rule-oriented’ approach toward a broader concept of legal education is thus desirable in terms of the norms instilled in future legal practitioners.
Adoption of a broad view of the law shifts away from the disadvantages of ‘rule orientation’ in law schools and dissolves the theory/practice dichotomy. One way of highlighting the artificiality of the posited gap between theory and practice is to consider what lawyers actually do. This raises questions about the skills that are desirable in lawyers and what we actually mean by ‘law’. For much of his career, William Twining has been committed to developing broader and more varied approaches to the study of the law, both as a theorist and as an activist. In Blackstone’s Tower, Twining adopts the American jurist Karl Llewllyn’s broad and deliberately vague conception of ‘law as a social institution specialised in the performing of certain tasks or meeting certain needs in human groups, especially those groups which we call societies’.[16] This means that the subject matter of the study of law includes ideas, principles, rules, processes, institutions, personnel, skills etc. Twining stresses, along with other eminent legal theorists and practitioners, the dynamic and ubiquitous nature of law.[17] If a broad perspective of the law is adopted, then the theory/practice dichotomy becomes of limited relevance.
An adoption of a broader view of the law and legal skills is essential in terms of the employment of law graduates. Not less than 50 per cent of law graduates find employment outside the practising profession.[18] Additionally, legal professions are highly stratified, fragmented and diverse, thus ‘it no longer makes sense, if it ever did, to talk of the skills of the lawyer—legal practice is just too varied.’[19] Consequently law schools must confront the issue of how to provide basic skills to people from varied backgrounds who will disperse into a variety of types of practice which themselves will be in process of continual, often rapid, change. Legal education needs to teach students broad generic skills rather than narrowly defined ‘lawyer skills’ that will not provide the majority of students with the necessary skills for employment. A broad definition of the law and legal skills undermines the relevance of the theory/practice dichotomy.
A broader understanding of legal education has the potential to develop generic intellectual skills whilst fulfilling legal specific educational requirements. This shift is essential in terms of the economic survival of law schools. As Twining points out, preservation of the economic base of legal education requires law schools to develop their potential. The large number of students enrolled at the undergraduate level compared with the limited number of jobs currently available within a narrowly defined legal profession may lead to a drastic fall in demand for places on undergraduate degrees if the law degree continues to be perceived mainly as a route to legal practice.[20] Twining suggests that law schools develop their potential by presenting law as a good vehicle for general education:
The subject-matter is important, extremely wide-ranging, intellectually challenging and potentially interesting. It is also vocationally relevant to many spheres of activity in addition to legal practice. There is a very rich body of constantly renewed primary sources based on actual practical problems or situations; and a solid and increasingly sophisticated body of scholarship.[21]
As a consequence, Twining believes that law schools can satisfy both general educational and legal requirements.
Twining’s proposed broad definition of law and legal practice is in accordance with general education theory. Student learning theory has distinguished between surface and deep approaches to learning. This is based on research by Marton and Saljo on student learning in the 1970s in Sweden.[22] Students using the surface approach of learning focus on what Marton describes as the ‘signs’ of learning: ‘the words used, isolated facts, items treated independently of each other’.[23] They may rote learn curriculum material rather than learn what it means, and simply accept and reproduce information presented to them.[24] Students using a surface approach to learning often have negative feelings about learning, including anxiety and boredom. Their intention lies solely in completion of the assessment task requirements. In contrast, the deep learning approach is associated with more positive feelings such as excitement, enjoyment and a sense of the importance of their work. A deep learning approach involves going below the surface and seeing the big picture. Students focus on underlying meaning and understanding ‘main ideas, themes, principles of successful applications’.[25] They are internally motivated to learn. Students adopting a deep learning approach relate previous knowledge with new knowledge, associate theory with everyday experience, structure knowledge into a coherent whole. They transform knowledge and make it their own.[26]
Biggs emphasises that deep and surface approaches to learning are not fixed characteristics of students. Rather, they describe the way students relate to a teaching/learning environment. Whilst students may have certain predilections for different approaches, the quality of the teaching environment can influence the learning orientation students adopt.[27] Unfortunately, Gow and Kember found that ‘the likelihood of a student adopting a deep orientation seems to decline as the student progresses through a course of study’.[28] They noted that the further along in undergraduate degrees students are, the less interested and less enthusiastic they are in their learning.
This is an issue raised particularly in law degrees, where curriculum needs may encourage students to adopt a shallow learning approach to law. The tendency to separate ‘core’ subjects and study them as discrete entities limits the possibility of students developing a theoretical overview of the legal system. Students may be overwhelmed by their early years of study of law, so they choose a ‘shallow’ approach to learning, with ‘play it safe’ risk free reproduction of knowledge to ensure a pass.[29] They become more concerned with remembering content than with understanding. This approach undermines the possibility of students developing a deep approach to learning. A narrow ‘rule-oriented’ approach to law undermines both legal educational requirements and general educational requirements.
The Higher Education Council has recommended that universities should aim to equip all their graduates with ‘higher level generic skills’[30] including critical thinking, problem solving, independent thought, ethical integrity and the ability to identify, find and manage information. These skills are also essential to legal practitioners, not only for current needs but also to accommodate change.[31]
Learning law is a lifelong process. The most important thing any student can gain from legal education is ‘the capacity to learn for him or herself, or in other words, the capacity to cope with change’.[32] The law, rules, practices and institutions change constantly. The issues to which the law is applied are also constantly in flux. It is essential that students build up a conceptual framework that can accommodate change. This requires a ‘‘map’ of the legal system, an understanding of legal language and legal reasoning and a familiarity with legal culture which can be gained only through deep study of particular areas of law’.[33] Rote-learning law is inimical to this. Students must understand the process of law rather than specific rules governing some type of human interaction. Marlene Le Brun and Richard Johnstone have argued that Australian law schools should encourage the development of deep approaches to learning: students should be ‘resourceful, lifelong, and autonomous learners’ who are ‘critical and creative... self-reliant, self-determining, and self-motivating’.[34] Higher level generic skills and legal specific skills are not mutually exclusive, rather they are complementary.
The perceived theory/practice dichotomy has been increasingly questioned and criticised by legal educators. It is perceived as artificial, wasteful and inappropriate to meet the diverse needs of graduate who may or may not practise law.[35] The focus on ‘rules’ in law schools satisfies neither general educational needs nor legal practitioner needs. The artificiality of the gap between professional and academic education has been highlighted by research by DeGroot. De Groot surveyed Queensland’s legal profession and found that academic and professional understandings of what constitutes a good lawyer are very similar.[36] The research suggested that a combination of theory and practice in the law school is of value to legal scholarship and professional practice.
A broad view of the law and lawyer-specific skills encourages students to develop generic intellectual skills, whilst satisfying legal educational requirements and practitioner needs. Consequently, legal educators have adopted the view that legal education in a university involves more than learning legal rules and developing legal skills. But what this ‘extra’ is, is far from clear. Since the Pearce Report law schools and the profession remain confused about what should be included in the legal curriculum.[37] This paper details one means of addressing this ‘extra’ component suggested by the Pearce Report—community based problem solving.
This paper focuses on community-based projects in the Criminology assessment regime. The emphasis is placed on assessment as it is central to encouraging students to adopt a deep approach to learning.[38] Ramsden has stated that ‘from our students’ point of view, assessment always defines the actual curriculum’.[39] Whilst for many, the focus by students on assessment may be seen as negative or disheartening, Biggs points out that learning for assessment is bad learning only if the test is bad.[40] If the assessment is aligned to curriculum needs and encourages deep learning approaches, then the focus by students on assessment becomes positive. Teachers need to tailor assessment to optimise student learning. This section outlines the Criminology assessment regime as an example of one method of encouraging students to develop a deep approach to learning the law.
Criminology is an optional subject with a flexible assessment regime. A prerequisite for enrolment in the subject is completion of Criminal Law. Students have therefore completed at least one full time year of legal education. The major objective of this subject is to encourage students to consider the law in action. Seminars commence with general theories relating to crime and crime causation and then build toward applied examples demonstrating the effects of discretionary decision making upon persons from different ethnic backgrounds, socioeconomic classes, sexualities, and genders. An optimum result from the subject would be for students to demonstrate an ability to synthesise specific legal skills with general theories to analyse issues arising in society. The assessment regime in Criminology goes some way towards encouraging students to achieve this result.
The assessment consists of a compulsory 20 per cent class participation mark, and any combination of:
Students are provided with reading materials which consists of basic texts and articles which they are expected to have read prior to seminars. Additionally, the course outline provides a detailed resource list for each topic, providing a foundation for further research.
Numbers enrolled in the subject have ranged from 20 to 60 students. The course tends to be seminar based, with reliance upon students to engage in informed discussions of the topic at hand. Students may also volunteer to present ideas on their preferred topics or to participate in more formal class debates.
This paper focuses predominantly upon the CLLRC problem solving component of the assessment regime. However, it should be noted that the CLLRC projects are optional. I will therefore make some comments about the assessment regime overall. The CLLRC projects tend to be popular, partly because students are intrigued by the possibility of doing an unusual piece of assessment, but also because of the desire to contribute something to the community. Students who choose to do some other form of assessment frequently do so because they are unable to make a sufficient time commitment to the CLLRC project or because they have a pre-existing area of interest that they wish to pursue in essay form. The take-home examination is presented to students as a safety net, and they are encouraged to complete essays or CLLRC projects if they can. Usually only one or two students attempt the take-home examination component of the assessment regime. The majority of students prefer the CLLRC projects or essays for assessment.
The 20 per cent participation scheme was suggested by students in anonymous subject evaluation forms after the first time the assessment regime was run in 1996. The flexibility of the assessment scheme meant that some students felt that they did not need to come to seminars, and so did not benefit from, or contribute to, class-based discussions. These students tended to submit assessment of work of a poor quality that was theoretically uninformed. The 20 per cent participation mark ensures student participation and attendance.
The CLLRC projects are organised under the auspices of the Community Law and Legal Research Centre.[41] This Centre has been operating for six years and offers free legal services to students and employees of the University. Additionally, the CLLRC aims to undertake research that is of benefit to the community. Each semester, a representative from the CLLRC attends the first seminar of Criminology and advises students of topics available for research. These topics come from a variety of sources. Sometimes community groups request research on specific topics that are affecting them. For example, the CLLRC has built up an ongoing relationship with the Sex-Workers Outreach Project (SWOP) and has researched a variety of topics including violence against sex workers, the impact of amendments to the Disorderly Houses Act in 1995, and the sentencing of sex workers at the Local Court level. These projects have resulted in publications providing information to sex workers. At other times, a need for research on a particular topic is highlighted by changes in client needs at the CLLRC.[42] For example, after the Star Casino opened in Sydney in 1995, staff noted an increase in the number of gambling-related offences. As a consequence, students researched the link between gambling and petty crime and the legal system’s responses to problem gamblers. Other projects have commenced due to general perceived needs in the community. These have included research into the increased use by local councils of anti-loitering signs, knife-searching legislation, and policing of public space. This semester, current projects include an examination of the increased use of sniffer dogs in relation to searching powers of the police and an analysis of police practices when dealing with mentally ill suspects and/or offenders.
Students choosing the CLLRC project are required to submit a final project with results detailed and a journal requiring critical analysis of their project. This emphasises the importance of process, rather than outcome. When students embark on CLLRC projects, there is no guarantee that the information or solution is available. Indeed, students are often informed that their projects can be useful in identifying an absence of research on particular topics. It is emphasised that journals are not meant to be a copy of the final project, but to provide details of the time students spent on the project, their feelings about information they have discovered, and to analyse and explain their choices in methodology. This also gives the marker an idea of how much work was involved in the project, and to determine the contribution of individual team members if necessary.
Work on the CLLRC projects has tended to be of a high standard. It has resulted in publications[43] and funding for further research.[44] The research from these projects has also been utilised by community groups lobbying for legislative reforms.[45]
Community-based projects are one means for highlighting the extent to which general education, legal education and lawyer-oriented skill requirements are not mutually exclusive. Community-based projects encourage students to develop higher level generic intellectual skills and specific legal skills. The community projects are an example of problem-based learning, developing interpersonal skills necessary to (almost) any form of employment. Students undertaking the projects are encouraged to adopt a deep approach to learning the law. The major advantage of community-based problem solving is that students consider the law in context. This means that students are able to perceive the interaction of different areas of law with each other, and the relationship of law with other disciplines. Community projects demonstrate the interaction of general educational requirements with law specific skills.
3A. PROBLEM-BASED LEARNING
The community-based projects are an example of problem-based learning. Students are presented with a community issue or ‘problem’ which they are required to analyse and consider and for which they suggest a solution or solutions. Problem-based learning (PBL) is recognised as a useful general educational tool for encouraging deep approaches to learning. PBL can also be seen as a generic, transferable skill which is of significance to the legal education. Twining asserts that a fruitful way of looking at rules and norms is as responses to problems.[46] Practitioners, lawyers, legislators and policy makers rely upon legislation and precedent to respond to community needs and issues. Consequently, problem solving can be described as a ‘master-skill’.[47]
Problem-based learning develops problem-solving skills in students, as the solution of the problem in the task is not an end in itself.[48] For many of the CLLRC projects there is no one solution or outcome. Students are not marked solely on the final outcome of their projects, but also upon the reasoning and research which gets them there. As their study is not directed by a teacher, students must learn to monitor their own process. This may mean renegotiating the terms of the project, or using alternative methods of research. As the research projects continue throughout the semester, students are constantly returning to the project with new information and ideas from classes and other sources. Ideas and standpoints are constantly challenged by the students’ own research and in discussion with team members.
The projects require students to be part of a group, which demands both co-operation and collaboration whilst working on the project.[49] This encourages the development of interpersonal skills vital to employment in almost any area of work and of particular necessity for lawyers. Research groups are formed by students expressing an interest in a particular topic area. This can result in students from different backgrounds and experiences who do not know each other working together. In order to effectively research, a certain amount of interpersonal skills are required. Students are required to negotiate with the community group the terms of the research. This negotiation is part of the learning process, as students become aware of what they can actually achieve within the limits of a semester. Students must also allocate tasks within the team, and meet regularly to discuss progress. The discovery of how much or how little information is available will require frequent renegotiations in allocations of tasks. This requires interpersonal, generic skills such as planning, decision making, and the ability to compromise.
3B. EMPHASIS ON CONTEXT
The major advantage of community projects is that students are encouraged to consider the law in context. This involves a shift away from a narrow rule-oriented approach to a broader conception of the law. This shift is in accordance with jurisprudential and general theoretical arguments regarding the nature of rules.
Legal realists have argued that the law cannot be understood in any meaningful way if it is isolated from the social order of which the legal order is a part.[50] More generally, Wittgenstein asserted that rules do not determine their application.[51] Even the strictest rule or system of rules ultimately requires application, and it is here that inconsistencies and impurities arise. Wittgenstein compares rules to signposts:
A rule stands there like a sign-post. —Does the sign-post leave no doubt open about the way I have to go?[52]
We may try to provide a conceptually pure definition of signposts as performing the function of telling us which way we have to go. But this is not always true. We may not be going in that direction, we may wish to meander the cityscape without concern for our direction, or the signpost may be in a film and we know not to follow it then. Consequently, signposts will have different meanings in different contexts. Conceptual confusion would arise from attempts to posit a single consistent rule about signposts, whilst our concrete use of signposts demonstrates different, at times contradictory, meanings.
The focus in legal education upon rules is misleading because it treats rules as things in themselves. Accordingly, it is essential to consider the context of rules. Twining states ‘rules are not self-creating, self-identifying, self-articulating, self-interpreting, self-applying, self-implementing or self-justifying’.[53] The advantage of community-based projects is that students can see the interaction of laws with other laws, disciplines and society in general. Students see the law in action. For example, students analysed the effects of amendments in 1995 to the Disorderly Houses Act. The amendments were enacted by Parliament with the intention of legalising brothels. Despite these intentions, the legislative reforms were used by some councils to criminalise and remove existing brothels. Students were able to see that rules do not determine their application—that legislation passed with the best intentions can have a negative impact upon those it was intended to protect.
Interrelationship of law with other laws
As noted in section 1, a deep approach to learning is characterised as the ability to structure knowledge into a coherent whole, transforming knowledge and making it one’s own. Unfortunately, there is a tendency to compartmentalise law in the legal curriculum. The teaching of subjects as discrete subjects that are complete in and of themselves discourages students from perceiving the interrelationship of different areas of the law. This means that students may never perceive the relationship between, for example, criminal law and the law of evidence. This fragmentation does not satisfy practitioner needs in responding to community issues and it may have the effect of discouraging a deep-learning approach to the law. Community needs cannot be neatly compartmentalised into ‘core’ areas of the law. Graycar and Morgan have argued persuasively that many important issues that are affected by the law cannot fit neatly into the compartments taught to students in law schools. For example, they note that the availability of abortions can be affected by different areas of law such as international law, criminal law and tort law.[54]
Community-based problem solving can highlight the artificiality of dealing with issues according to discrete legal categories. For example, in one project students considered the link between gambling and petty crime. Through research, students noted the use of environmental planning legislation to disperse (expected) crime from the area. Environmental planning legislation banned pawn shops and money lenders in the Pyrmont-Ultimo area where the Star City Casino is situated. This legislation was introduced in order to discourage punters stealing property and using pawn shops to turn these stolen goods into cash to fund gambling. This effectively cleared the Pyrmont-Ultimo area of any risk of crime that might be associated with pawnbroking establishments. This was one proactive measure utilised to defuse community concerns about the link between gambling and crime. This demonstrated to the students that it would be insufficient to consider gambling-associated crime and attempts at crime prevention solely from the perspective of criminal law. Community projects thus encourage students to go beyond neat legal compartments to consider the interaction and use of various laws in relation to specific community issues.
Relevance of extra-legal knowledge and skills
Community-based problem solving also encourages students to use skills they have gained from other disciplines. The Pearce Report noted that students are ‘multi-lingual’.[55] The majority of law students have either completed or are involved in studying another degree, yet this knowledge is seldom called upon in assessments in core subjects. The CLLRC projects demonstrate to students that sociological, political, scientific, philosophical and economic knowledge they have is relevant to the law. For example, students completing a project on DNA legislation considered the scientific strengths and weaknesses of DNA evidence and the costs of widespread DNA testing. Additionally, they analysed political motivations in the timing of the use of DNA testing in Wee Waa. They related DNA testing to concerns about victims’ rights and current ‘law and order’ politics. They then compared DNA legislation in different states in Australia and internationally in order to consider the strengths and weaknesses of DNA legislation in NSW. Projects such as these demonstrate to students that law cannot afford to be self contained, and that knowledge of the ‘rules’ in isolation is insufficient.
By emphasising context, community projects encourage students to develop a deep-learning approach to the law. The ‘lure of relevance’ fosters self directed learning in students as they perceive how their legal and non-legal skills are of benefit to the community. Students can begin to develop an overview of the legal system, considering how different areas of the law and the social context can influence the application of rules. They become aware that rules do not determine their application. The context in which rules are made and enforced influences the use of the law. By emphasising the importance of context, community projects demonstrate that the theory/practice dichotomy is more apparent than real. Good lawyers need higher level intellectual skills, the ability to integrate different knowledge and skills, and an understanding of the legal system. Community projects have the potential to encourage the development of these skills.
Community projects also raise the issue of the place of the ideal of justice in legal education. By emphasising context and encouraging students to develop an overview of the legal system, rather than perceiving cases in isolation, the ideal of justice is brought up. This section considers the current place of teaching of the concept of justice in legal education and relies upon the German philosopher Habermas to argue that even though justice is a complex, pluralistic concept, it should continue to have a place in legal education.
The legal educator D’Amato has argued that law schools should ‘turn away from the study of law-words and should instead study justice’. [56] He contends that students should be taught to see right through the words to the underlying normative concepts of justice and morality. D’Amato’s work sustains a very clear sense of what he means by justice and its substantive effects. To a certain extent, his emphasis on justice is understandable, as perhaps he is over-compensating for an absence of the consideration of justice in legal education. The Australian Law Reform Commission also raised the issue of justice in legal education,[57] quoting a commentator expressing concern that there appeared to be a replacement of ‘a justice-oriented consciousness with a game-like consciousness’.[58] The separation of core subjects into discrete entities may undermine considerations of justice in legal education. The case law approach fails to place litigation within its broader social and political context. What actually happened to the parties in the cases is often irrelevant. Apparently unjust cases are labelled ‘bad’ law or students are (vaguely) advised that victims may be able to receive compensation elsewhere. Consequently, the decontextualisation of issues undermines the possibility of considering issues fully and examining whether justice has been done.
Another reason for a lack of consideration of justice in legal education is that academics are aware that justice is a complex concept that is difficult to define and explain. There is increasing recognition that concepts of justice are pluralistic and heterogeneous. Teaching of justice may be avoided because it is just too difficult. Additionally, for many people, it is clear that the legal system does not always achieve justice. However, the difficulty of the concept does not mean that the ideal of justice should be neglected in legal education. Legal education should contribute to the attainment of better justice.[59] Rather than ciphers who simply apply existing laws, it is desirable that lawyers have legal competence and the capacity to make moral judgments.
The Moment of Truth for a practicing attorney occurs whenever a prospective client tells a story that seems morally compelling but legally hopeless. That is where the attorney’s legal research should begin, not where it should end. Too much injustice persists in the world because tired legal thinking has accepted unjust patterns as acceptable.[60]
In his analysis of the legal system, the German philosopher Habermas has considered issues of justice.[61] Habermas attempts to bridge normative and empirical approaches to democracy and the social context required for democracy. In terms of the legal system, he attempts to link ideals of justice and fairness with empirical evidence of what the legal system actually achieves. Habermas starts with the paradoxical duality of law—a tension ‘between facts and norms’.[62] This tension resides at several levels in the legal system, but at each level there is social reality on the one side and a claim of reason on the other. Habermas characterises law as ‘essentially constituted by a tension between facticity and validity—between its factual generation, administration, and enforcement in social institutions on the one hand and its claim to deserve general recognition on the other.’[63] To a certain extent, attempts to teach students about justice in legal education are caught between this tension also—between what the legal system actually achieves and its self proclaimed ideals. There are two aspects about Habermas’s ideas that are relevant to legal education. Firstly, Habermas ‘situates the idealising character of validity claims in concrete social contexts’.[64] Secondly, Habermas’s theory does not require a concrete concept of justice. I will deal with each of these issues in turn.
To simplify Habermas’s ideas for the purposes of this paper, Habermas contends that even though the legal system does not achieve ideals such as justice and equality empirically, these ideals are accepted by the citizens themselves as engaged participants. This means that claims based on these ideals continue to be valid and powerful, even though the legal system may not (ever) achieve these ideals. For students, this means that criticisms of legislation and decisions in cases on the basis of ideals such as justice are relevant and can be persuasive. Even though the legal system may not achieve justice, we still judge the system by the ideal of justice. Many judges and politicians are constrained by a concept of justice. Thus, legal education should teach students how to marshal and structure the facts of a case in order to get through to a person’s sense of justice.[65]
The second relevant aspect of Habermas’s theory is that he does not assume a concrete concept of justice. In Between Facts and Norms,[66] Habermas develops arguments that he presented in his two volume Theory of Communicative Action.[67] Habermas emphases communicative interaction by which individuals attempt to reach reasoned agreement. This consensus is based upon supporting arguments about assumed facts or norms. If these assumed facts or norms should subsequently prove false then there are grounds for questioning the original agreement and reopening the discussion:
these idealisations imply a tension between the de facto social acceptance of a group consensus and the idealised validity that such a consensus must claim for itself if members are to accept it as reasonable.[68]
Communicatively achieved agreements are in principle always open to challenge. This means that whilst we may not be able to define the concept of justice for all time, we are still able to make claims about the value of justice which bridge the gap between what is achievable and knowable now, and justice as an ideal value.
Relying upon Habermas’s ideas, we do not need to, nor should we, impose a particular view of justice on students—its meaning is changing and contingent.[69] But this does not mean that we cannot teach students the relevance of justice. Whilst justice may be difficult to define in a philosophical sense there is consensus that consistency, equality, procedural fairness and predictability are essential to a just society. Legal practitioners must have basic legal competence for the legal system to operate and fulfil demands of justice.[70] But technical and professional skills are insufficient. The community is entitled to expect something more from the legal profession. Legal practitioners must be capable of considering wider social issues, ‘whether our laws are responsive to the needs of the society; and whether our legal system and services are adequate, accessible and efficient’.[71] We must teach students to use their legal knowledge to adopt a protective and facilitative role—involving a consciousness of entitlements to benefits and protections.
Community projects encourage students to consider issues of justice from empirical and theoretical perspectives. Because projects are analysed in the context of different areas of law, disciplines and situated in society, students utilise empirical knowledge to consider the extent to which the legal system is delivering or hampering justice from a variety of different viewpoints. For example, students analysed the increased use of anti-loitering signs by local councils from a sociological and legal perspective. They utilised existing criminological research regarding the potentially discriminatory effects of public space regulation upon people from different races, classes, sexes and ages. They considered the use of anti-loitering signs to effectively prevent young people from congregating in specific public spaces. Students then considered the legality of council regulations from administrative and constitutional law perspectives. Their paper was framed in terms of the injustice of this legislation from sociological and legal perspectives. The paper was utilised by the Council for Civil Liberties to lobby the NSW Parliament to change the law in this area to ensure that local councils were prevented from policing public space in this manner. Students thus learned that analysis of the legal system in terms of justice from different perspectives is valid and can result in change.
The projects may also encourage students to reflect upon their own concept of justice. Some of the projects do not result in any legislative or practice change, but they do increase the awareness of students of the impact of factors such as class, race and sexuality upon the legal system’s treatment of different people. This increased awareness is important because many law students come from privileged backgrounds. Despite changes in entry profiles to admit a wider diversity of students, there is ‘no available evidence to indicate an associated change in the socio-economic background of students’.[72] Law schools tend to attract students from the upper middle classes, whilst underprivileged Australians—particularly Aboriginal people, migrants and members of lower socioeconomic groups—have greater difficulty in accessing legal education.
The community projects can encourage students to become aware of and develop their own concept of justice. For example, students considered new knife-searching legislation[73] from a sociological viewpoint—emphasising that whilst the legislation is age neutral, teenagers were the most common targets of knife search powers. They considered the impact of extended police powers on police—youth relations and the background of the legislation in terms of a moral panic about young people. Students then compared these extended police powers against the legal system’s norms of equality before the law, the presumption of innocence and what constitutes ‘reasonable suspicion’. Whilst this research did not result in any changes to police practices or legislation, some of the students involved in the project became aware of the impact of class and race in the enforcement of criminal law. Initially, students researching the legislation were sympathetic to police practices when policing the streets, particularly because they could only imagine police using their powers in their favour, rather than against them. However, after interviewing young people on the streets at night and discovering the extent of searching of young people from specific ethnic backgrounds, the researchers changed their opinions about the fairness of the enforcement of the legislation. They returned to existing criminological analysis regarding the differential impact of laws against people from different backgrounds in society to consider the advantages and disadvantages of the legislation in full.
Community projects thus have the potential to encourage students to reflect upon their own concepts of justice. Additionally, they demonstrate that justice continues to be a valid norm by which the public, legal practitioners and politicians evaluate the legal system. Students are thus encouraged to marshall their legal and extra-disciplinary skills to frame analyses and arguments about the legal system in terms of justice.
Claims of a theory/practice dichotomy become unpersuasive once a broad view of the law and the skills desirable in lawyers is adopted. A broad view of the law involves a shift away from a rule-oriented approach to considering the ubiquity of law in society. Community projects require students to adopt a broad view of the law, shifting away from rule orientation. Community projects encourage students to develop a deep-learning approach to law. Students relate previous knowledge with new knowledge and structure knowledge into a coherent whole. Community projects tend to foster motivated, self directed learning as students can perceive the relevance and importance of their project and developing legal skills. The most significant advantage of community projects is that they lead to contextualised learning. Students perceive the interrelations of different areas of law and disciplines when considering community issues. Community projects thus foster a shift away from a piecemeal approach to community issues toward an overview of the law and its relationship with society. This emphasis on context has the added benefit of revitalising a sense of justice in law students. The abstract case method of legal education does little to foster a sense of justice in students, as the cases and law are divorced from context. Community projects encourage students to reflect upon their own concepts of justice and to realise that even whilst the legal system might not always achieve justice, the ideal of justice retains its relevance and importance in evaluations of legislation, policies and practices.
To return to Twining’s quotation commencing this paper, there is no reason for law schools to feel themselves caught between a tug of war between general educational needs, societal needs and practitioner needs. Higher level generic intellectual skills compliment law specific skills. Society needs lawyers who are motivated, lifelong learners capable of coping with change.
[1]B. Ec. LLM (USyd) M. Phil. (Cantab). Lecturer, Faculty of Law, UTS. I would like to thank Jen Cloher and Don Crofts for their help.
[2]Twining, W., The Hamlyn Lectures, Blackstone’s Tower: The English Law School, Stevens and Sons/Sweet and Maxwell, London, 1994, 2.
[3]Ibid
[4]Habermas, J. Between Facts and Norms, Polity Press, London, 1996.
[5]E.g., Simmonds, R., ‘Legal Education for Future Professionals’ in Goldring, J. Samp- ford, C. and Simmonds, R. (eds), New Foundations in Legal Education, Cavendish, London, 1998, p.94—paper on balancing professional legal education in a university setting.
[6]Goldring, J. ‘The Future of Legal Education: Doubtful Assumptions and Unfulfilled Expectations’ in Goldring et al, 1998, 15, p.22.
[7]Sampford, C. and Blencowe, S. ‘Context and Challenges of Australian Legal Education’ in Goldring et al. 1998, 1, p.1.
[8]Weisbrot, D. Australian Lawyers, Longman Cheshire, Melbourne, 1990, p.129.
[9]Pearce, E., Campbell and Harding, D. Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Comision, A Summary and Volumes I—IV, AGPS, Canberra, 1987, p.27.
[10]Mason, Sir A. ‘Universities and the Role of Law in Society’ in Goldring et al. 1998,
p.ix.
[11]Wesley-Smith, P. ‘Neither a Trade nor a Solemn Jugglery’, quoted by Twining, W. ‘Preparing Lawyers for the Twenty-first Century’ [1992] LegEdRev 1; (1992) 3(1) Legal Education Review 1,
pp. 8—9.
[12]Meltsner, M. ‘Feeling Like a Lawyer’ (1983) 33 Journal of Legal Education 624, quoted in Australian Law Reform Commission, Review of the Adversarial System of Litigation: Rethinking Legal Education and Training, Issues Paper 21, AGPS, Canberra, 1997, p.51.
[13]Ibid.
[14]Ibid, p.8.
[15]Ibid, p.52.
[16]Llewellyn, K. ‘The Normative, the Legal and the Law-Jobs’ (1940) 39 Yale Law Journal 1355 in Twining, 1994, p.18.
[17]E.g. Sir Anthony Mason states that law is a part of the ‘fundamental fabric of society’
in ‘Universities and the Role of Law in Society’ in Goldring et al. 1998, ix, p.ix.
[18]Ibid.
[19]Twining, 1994, p.169.
[20]Ibid, p.195.
[21]Ibid, p.197.
[22]Marton, F. and Saljo, R. ‘On qualitative differences in learning—I: Outcome and Process’ (1976) 46 British Journal of Educational Psychology, pp. 4—11; and ‘On qualitative differences in learning—II: Outcome as a function of the learner’s conception of the task’ (1976) 46 British Journal of Educational Psychology, pp. 115—27.
[23]Biggs, J. Teaching For Quality Learning At University: What The Student Does, Open University Press, Buckingham, 1999, p.15.
[24]Bond, C. and Le Brun, M. ‘Promoting Learning in Law’ [1996] LegEdRev 1; (1996) 7(1) Legal Education Review 1, pp. 4—5.
[25]Biggs, 1999, p.16.
[26]Bond and Le Brun, 1996, p.5.
[27]Biggs, 1999, p.17.
[28]Gow, L. and Kember, D. ‘Does Higher Education Promote Indepedent Learning?’ (1990) 19 Higher Education 307, p.313.
[29]Kathy Laster, ‘Note: Design-a-Court: An Introductory Socio-Legal Assessment Exercise’ [1998] LegEdRev 9; (1998) 9(2) Legal Education Review 193, p.195.
[30]National Board of Employment Education and Training, Higher Education: Achieving Quality Report of the Higher Education Council (NBEET 1992), AGPS, Canberra, 1992, p.20.
[31]Ibid, p.28.
[32]Goldring, 1998, 15, p.17.
[33]Sampford and Blencowe, 1998, 1, p.18.
[34]Le Brun, M. and Johnstone, R. The Quiet (R)evolution: Improving Student Learning in Law, Law Book Company, Sydney, 1994, p.xiii.
[35]Sampford and Blencowe, 1998, p.7.
[36]De Groot, J. ‘Acquiring Basic Legal Skills and Knoweldge: What and Where?’ (1994) 12 Journal of Professional Legal Education 1.
[37]Sampford, C. and Wood, D. ‘Theoretical Dimensions of Legal Education’ in Goldring et al., 1998, 100, p.102.
[38]The implications of this method of assessment upon teaching are beyond the scope of this paper. However, it is worth noting that the flexible assessment scheme does encourage a shift away from the teacher as guru towards more self-directed learning.
[39]Ramsden, P. Learning to Teach in Higher Education, Routledge, London, 1992, p.187.
[40]Biggs, 1999, p.141.
[41]The CLLRC is funded by the UTS Union and the Faculty of Law. Much of the work, p.the Centre is undertaken by volunteers. The CLLRC runs on a frayed shoestring but continues to survive and deliver legal services and research.
[42]Providing a clear demonstration of the link between practice and theory.
[43]There have been several publications of information pamphlets for sex workers based on research by students. Additionally, there have been several refereed articles emerging from students in the subject.
[44]For example, the gambling and crime project resulted in funding from the Casino Community Benefit Fund to further consider the legal system’s response to gambling related crime. This research is nearing completion.
[45]The most inspiring example of this was the use by the Council for Civil Liberties to advise NSW Parliament of the use by local councils of anti-loitering signs.
[46]Twining, 1994, p.176.
[47]Ibid, p.169.
[48]Nuy, H. and Moust, J. ‘Students and Problem-Based Learning: How Well Do They Fit In?’ (1990) 8 (2) Journal of Professional Legal Education 97, p.101.
[49]Alan Leaver, ‘Contextualising Law: An Attempt to Operationalise Theory by Teaching Interviewing in the Law School’ [1994] LegEdRev 10; (1994) 5(2) Legal Education Review 195, p.207; G.L. Ogden, ‘The Problem Method in Legal Education’ (1984) 34 Journal of Legal Education 654.
[50]See Twining, W. Karl Llewellyn and the Realist Movement, Weidenfeld and Nicolson, London, 1973.
[51]Wittgenstein has been labelled the father of ‘ordinary language philosophy’. There were two major stages in his philosophy. He focused upon analytic philsophy in Tractatus Logico-Philophicus (1922). The second stage of his work focused upon ordinary language and rule following with his central ideas published in Philsophical Investigations (1953).
[52]Wittgenstein, Philosophical Investigations, para 85 in Pitkin, H. Wittgenstein and Justice, University of California Press, Los Angeles, 1972, p.46.
[53]Twining, 1994, p.175.
[54]Graycar, R. and Morgan, J. ‘Legal Categories, Women’s Lives and the Law Curriculum’ [1996] SydLawRw 26; (1996) 18 Sydney Law Review 431.
[55]Pearce, Campbell and Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Comision, A Summary and Volumes I—IV, AGPS, Canberra, 1987, p.29.
[56]D’Amato, A. ‘Rethinking Legal Education’ (1990) 74(1) Marquette Law Review 1, p.1.
[57]Review of the Adversarial System of Litigation, 1997, p.51.
[58]Granfield, R. Making Elite Lawyers: Visions of Law, p.Harvard and Beyond, Routledge, New York, 1992, p.52.
[59]Goldring, J. ‘Better Legal Education: An Essential Element of Justice for All’ in Goldring et al. 1998, p.151.
[60]D’Amato, A. ‘The Decline and Fall of Law Teaching in the Age of Student Consumerism’ (1987) 37 Journal of Legal Education 461, p.493.
[61]Habermas, London, 1996.
[62]Ibid, chapter 1.
[63]William Rehg, ‘Translator’s Introduction’ in Habermas, 1996, i p.xii.
[64]Ibid.
[65]D’Amato, A. 1990, p.26.
[66]Habermas, 1996.
[67]The Theory of Communicative Action. Vol 1, Reason and Rationalisation in Society. Vol 2, Lifeworld and System: A Critique of Functionalist Reason. Translated by T. McCarthy, Boston, 1984, 1987.
[68]Rehg1996, xvi.
[69]Also argued by Goldring, 1998, 152.
[70]Ibid.
[71]Mason, 1998, xi.
[72]McInnis, C. and Marginson, S. Australian Law Schools after the 1987 Pearce Report, AGPS, Canberra, 1994, p.206.
[73]Crimes Legislation Amendment (Police and Public Safety) Act 1998.
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