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Pedagogy and ideology: teaching law as if it matters

Published online by Cambridge University Press:  02 January 2018

N K Sam Banks
N K Sam Banks*
Affiliation:
University of Huddersfield
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Abstract

Considering whether law students receive a legal education that is meaningful and relevant to them raises interesting questions about what education is, what it's for, how we teach, how we learn and, essentially, how we know what we know. This article examines ideology and the law lecturer and student, and how these intersect, interact and conflict to inform the teaching, learning and understanding of law. These are not inconsequential questions considering the range of diversity among students now studying law. These issues are explored by examining the purposes of legal education in light of the overall objectives of higher education. The article then looks at the impact of ideology on our understanding of the world in general and of law in particular, and how ideology influences how we learn and what we learn. The manner in which ideology influences a particular interpretation of information, and especially legal information, is explored, as are the consequences to those outside that ideological and interpretive commonality. Thus, it is argued that some groups of students are excluded from a legal education that is meaningful and relevant to them. Lastly, the article considers ways in which law may be understood and taught otherwise to reflect both our students' reality and the social context in which law operates.

Type
Research Article
Information
Legal Studies , Volume 19 , Issue 4 , December 1999 , pp. 445 - 467
Copyright
Copyright © Society of Legal Scholars 1999

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References

1. ‘Diversity’, as it is used here, refers to the way in which students – and law teachers – differ with respect to gender, race, ethnicity, culture, age, religion, sexual orientation, class, and level of physical and mental ability. Diversity also accommodates people's multiple and simultaneous positionings across these various categories. Diversity within and across the student population may well differ from university to university and from region to region. Given current and future UK plans to increase access to higher education, it seems reasonable to expect that the student population will become increasingly diverse.

2. There is a significant body of literature on the nature of education and educational theory: see, very generally, F Leavis Education and the University (London: Chatto & Windus, 1948); P Hirst Knowledge and the Curriculum (London: Routledge and Kegan Paul, 1974); J Kleinig Philosophical Issues in Education (London: Croom Helm, 1982); D E Cooper (ed) Education, Values and Mind (London: Routledge & Kegan Paul, 1986), R Barrow and R Woods An Introduction to Philosophy of Education (London: Routledge, 3rd edn, 1988); M Warnock Universities: Knowing Our Minds (London: Chatto & Windus, 1989); J White Education and the Good Life: Beyond the National Curriculum (London: Kogan (published in association with the Institute of Education, University of London), 1990); S Aronowitz and H Giroux Postmodern Education: Politics, Culture and Social Criticism (Minneapolis: University of Minnesota Press, 1991); b hooks Teaching to Transgress -Education as the Practice of Freedom (New York: Routledge, 1994); R Usher and R Edwards Postmodernism and Education (London: Routledge, 1994); P Freire Pedagogy of the Oppressed (London: Penguin, 1996); and H A Giroux Pedelgogy and the Politics of Hope (Oxford: Westview Press, 1997).

3. There is an ongoing debate concerning the difference between the liberal and vocational models of education, the distinction having been described by one commentator as ‘fundamentally as different as chalk and cheese’: M Allen The Goals of Universities (Milton Keynes: Society for Research into Higher Education & Open University Press, 1988) p 107. Traditionally, the liberal model is seen to value knowledge for its own sake; that is, not justified in pursuit of a specific goal but rather to develop a well-rounded person, whilst the vocational model places value on skills training and practical learning for a defined objective.

4. See eg Blackstone, W. Of the Study. Nature and Extent of the Laws of England, published as the Introduction: Section 1 of the Commentaries on the Laws of England, vol 1 Google Scholar

5. A brief example of the range of literature on legal pedagogy: S Bright ‘What, and How, Should We Be Teaching?’ (1991) 25 Law Teach 1 I; A Bradney ‘Raising the Drawbridge: Defending University Law Schools’ [1995] I Web JCLI; A Bradney ‘Ivory Towers or Satanic Mills: Choices for University Law Schools’ (1992) 17 Studies in Higher Educ 5; P Birks (ed) Reviewing Legal Education (Oxford: Oxford University Press. 1994). P Birks (ed) Examining the Law Syllabus: The Core (Oxford: Oxford University Press, 1992); P Birks (ed) What Are Law Schools For; (Oxford: Oxford University Press, 1996); D Brown ‘Some Problems of Post-War Law Teaching’ (1947) 1 J SPTL 19; P Birks (ed) Examining the Law Syllabus: Beyond The Core (Oxford: Oxford University Press, 1993): I Duncanson ‘The Ends of Legal Studies’ [3997] 3 Web JCLI; Feldman, D The Nature of Legal Scholarship (1989) 52 MLR 498 Google Scholar; J Grodecki Legal Education: Dilemmas and Opportunities (Leicester: Leicester University Press, 1967): J Hodgson ‘The Comparative Dimension (or What do They Know of England, that only England Know?)’ [1995] 5 Web JCLI; P Leighton et a1 Today's Law Teacher: Lawyers or Academics? (London: Cavendish. 1995); J Macfarlane ‘Look Before you Leap: Knowledge and Learning in Legal Skills Education’ (1992) 19 J Law & SOC 293; W Twining Blackstone's Tower: The English Law School (London: Sweet and Maxwell. 1994); R L Weaver ‘Some reflections on the case method’ (1991) II1 LS 155: B Hepple ‘The Renewal of the Liberal Law Degree’ (1996) 55 CLJ 470; and J Webb and C Maughan Teaching Lawyers' Skills (London: Butterworth, 1996).

6. ACLEC (London: Lord Chancellor's Office, 1996).

7. Ibid at para 2. 1.

8. A Bradney ‘Raising the Drawbridge: Defending University Law Schools’ above n 5 at 4. It is Bradney's contention that [t]he university's primary focus lies in allowing students to explore their humanity; its primary role in creating a humane professional is in giving the student the ability to put the demands of working life and professional standards into the context of ethical and social imperatives.

9. ACLEC, above n 6, para 1.2 1: a law degree ‘continues to be the foundation for a wide variety of careers, not just the practising legal profession’.

10. Ibid at para 2.2 and see para 2.4.

11. For a further examination of issues and implications of the ACLEC report, see N Duncan ‘The Skill of Learning: Implications of the ACLEC First Report for Teaching Skills on Undergraduate Law Courses’ [1997] Web JCLI; Bradney ‘Raising the Drawbridge: Defending University Law Schools’ above n 5; Hepple above n 5; Hodgson above n 5; Duncanson above n 5; and R Mullender ‘Law, Undergraduates and the Tutorial’ [1997] 3 Web JCLI. Common amongst the critiques is that, although the report suggests that legal education ought to be more roundly-based, it still has a practitioner bias. See, particularly, Bradney [19951 1 Web JCLI at 4–5.

12. There is a growing literature concerning clinical legal education. See eg H Brayne, N Duncan and R Grimes Clinical Legal Education (London: Blackstone, 1998); P Schrag and M Meltsner Reflections on Clinical Legal Education (Boston: Northeastern University Press, 1998); and Webb and Maughan (eds) Teaching Lawyers' Skills above n 5.

13. This is hardly a novel problem in legal education. As a law student I took some but not all of the courses that the Law Society of British Columbia recommended for successful completion of its professional legal training course subsequent to the LLB degree. As I was committed to an academic career, I was unmoved by fears that I would be deficient in the ‘relevant’ comes that would supposedly assist me in gaining articles and a lawyering position thereafter. I did not perceive any difficulties in completing the professional legal training course nor articles because of this lack of ‘core’ courses. I was acutely aware, however, of other students' concerns that they take the ‘right’ courses in order to get interviews, articles and positions. Many were very much concerned about presenting the ‘right profile’ that they believed would make them look attractive to potential employers and simply would not take courses they felt would either be of little or indeed of negative value. Once I began teaching, I experienced similar concerns about courses from another angle. I once taught a seminar entitled ‘Lesbian and Gay Legal Issues’. We spent the first session examining issues arising from the course title. Some of the students were adamant that this was the title they wanted to feature on their official university transcript; their position was that they were unafraid, unashamed and undeterred by any consequences, perceived or real, of having taken a course with the words ‘lesbian’ and ‘gay’ in the title. Other students were fearful that the course title on their official record might be a deterrent to potential employers or others who might wonder about someone's interest in taking such a course. Of course, the seminar students themselves were self-selecting, in that only those students who had an interest in lesbian and gay legal issues would register for the course. Nevertheless, some felt that evidence of having taken the course might be ‘risky’ (their word) outside the relatively safe environment of the university. In the end, we compromised: for those students who wanted the course but not the title, it appeared on their transcripts as ‘Topics in Legal Theory and Constitutional Law’.

14. Hepple above n 5, at 480.

15. Ibid.

16. Bradney ‘Raising the Drawbridge’ above n 5 at 4.

17. ‘Ils [les riches] y doivent travailler devant la majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain’: A France Le Lys Rouge (Calmann-Levy, 1923) p 113.

18. See, generally, J Frank Law and the Modern Mind (New York: Brentano's, 1936); Llewellyn, K Realistic Jurisprudence (1930) 30 Colum LR 441 Google Scholar; F Cohen ‘Transcendental Nonsense and Functional Approach’ (1935) 35 Colum LR 809; M Tushnet ‘Legal Scholarship: Its Causes and Cure’ (1981) 90 Yale LJ 1205; D Kairys (ed) The Politics of Law: A Progressive Critique (New York: Pantheon Books, 1982); D Kennedy Legal Education and the Reproduction of Hierarchy (Cambridge, Mass: Afar, 1983); D Kennedy and K Klare ‘A Bibliography of Critical Legal Studies’ (1984) 94 Yale LJ 461; A Hutchinson and P Monahan ‘Law, Politics and the Critical Legal Scholars: The Unfolding Drama in American Legal Thought’ (1984) 36 Stan LR 199; R Unger The Critical Legal Studies Movement (Cambridge, Mass: Harvard University Press, 1986), D MacCormick ‘Reconstruction after Deconstruction: A Response to CLS’ (1990) 10 OJLS 539; Thomson, A Critical Legal Education in Britain (1987) 14 J Law & Soc 183 Google Scholar; D Price ‘Taking Rights Cynically: A Review of Critical Legal Studies’ (1989) 48 CLR 271; N Duxbury ‘Some Radicalism about Realism? Thurman Amold and the Politics of Modem Jurisprudence’ (1990) 10 OJLS 1 I; Goodrich, P Critical Legal Studies in England: Prospective Histories (1992) 12 OJLS 195 Google Scholar; A Hutchinson and P Monahan (eds) The Rule of law: ideal or ideology (Toronto: Carswell, 1987); Hunt, A The Critique of Law: What is ‘Critical’ about Critical Legal Studies (1987) 14 J Law & SOC 5 Google Scholar; C Smart Feminism and The Power of Law (London: Routledge, 1989); M Barrett and M McIntosh The Anti-Social Family (London: Verso, 1991); A Bottomley (ed) Feminist Perspectives on the Foundational Subjects of Law (London: Cavendish Publishing, 1996); Menkel-Meadow, C Feminist Legal Theory, Critical Legal Studies, and Legal Education or “the Fem-Crits Go to Law School” (1988) 38 J Legal Educ 61 Google Scholar; J Scales-Trent Sameness and Difference in a Law School Classroom: Working at the Crossroads (1992) 4 Yale J Law and Feminism; Casey, J and Olson, K Teaching Law in a Feminist Manner: A Commentary from Experience (1990) 13 Harv Women's LJ 87 Google Scholar; J Bridgman and S Millns Feminist Perspectives on Law: Law's Engagement with the Female Body (London: Sweet & Maxwell, 1998); P Williams The Alchemy of Race and Rights (Cambridge: Harvard University Press, 1991); A O'Donnell and R Johnstone Developing a Cross-Cultural Law Curriculum (Sydney: Cavendish Publishing Pty Limited, 1997); Graycar, R and Morgan, J Legal Categories, Women's Lives and the Law Curriculum, Or, Making Gender Examinable (1996) 18 Sydney LR 431 Google Scholar; D Goldberg (ed) Multiculturalism: A Critical Reader (New York: Blackwell, 1994); F Ansley ‘Race and the Core Curriculum in Legal Education’ (1991) 79 Calif LR 15 11; and L Volpp ‘(Mis)Identifying Culture: Asian Women and the “Cultural Defence”’ (1994) 17 Harv Women's LJ 57.

19. Weaver above n 5 at 166–167.

20. In addition to the works noted at n I8 above see, generally: G Therborn The Ideology of Power and the Power of Ideology (London: Berson Editions, 1980); C Sumner Reading Ideologies (London: Academic Press, 1979); S Gavigan ‘Law, Gender and Ideology’ in A Bayefsky (ed) Legal Theory Meets Legal Practice (Edmonton: Academic Printing and Publishing, 1988); P Hirst On Law andldeology (London: Macmillan, 1979); K Thompson Beliefs and Ideology (Chichester: Ellis Horwood, 1986); P Simpson Language, ideology and point of view (London: Routledge, 1993); C Weedon and G Jordan Cultural Politics (Oxford: Blackwell, 1994).

21. Therborn above n 20 at 2.

22. Ibid.

23. Sumner above n 20 at 20.

24. Ibid at 22.

25. Gavigan above n 20 at 285.

26. R Gordon ‘Unfreezing Legal Reality: Critical Approaches to the Law’ (1987) 15 Florida State U LR 195 at 200.

27. Gavigan above n 20 at 286.

28. Ibid at 285.

29. See eg Gavigan above n 20 at 286: ‘From its inception, ideology has had a clear-cut, negative and critical connotation - negative because it involves a distortion, a misrepresentation of contradictions.’

30. Z Bauman Intimations Of Postmodernity (London: Routledge, 1992) p 35.

31. Sumner above n 20 at 266–267.

32. Ibid.

33. Ibid.

35. O Fiss ‘Objectivity and Interpretation’ (1982) 34 Stan LR 739 at 744.

36. Ibid at 745.

37. Ibid at 763.

38. Usher and Edwards, above n 2 at 79.

39. Ibid at 25.

40. Texts and other teaching materials: ‘by the use of certain strategies and devices, as well as meanings, [are] able to construct a text which can be understood (by those who are party of such moves) in a way divorced from any reference to any local and immediate contexts. Textual communication can be relatively decontextualised’ (I Parker and J Shotter Deconstructing Social Psychology (London: Routledge, 1990) p 2).

41. In an examination of vocal performances and teaching spaces at English universities, T Delph-Janiurek describes an account by W Webster of interviews with a number of students who had previously attended state schools, who themselves described: ‘teaching (and other campus) spaces at British Universities as dominated by the “loud” and “confident” voices of students from public schools, whom they referred to as “yahs”, “rahs” and “sloanes”. In contrast her interviewees, all having regional accents, described how they avoided speaking in teaching room discussions. Some reported strong feelings of isolation and loss of confidence because they felt their voices in particular, as signifiers of lower social class, marked them as inferior.’ Delph-Janiurek further stated that the ‘gendered voicelsilence dualism may also shape interpretations of verbal behaviour in these spaces, particularly in seminars and tutorials where students are encouraged to speak. Because their role in “public” speech domains has traditionally been associated with silence, women who speak frequently and with confidence and authority may be problematised. Similarly, men who remain silent or speak hesitantly may be regarded as failing to cohere with hegemonic, heterosexual masculinity’. (T Delph-Janiurek ‘Sounding Gender(ed): vocal performance in English university teaching spaces’ (1999) 6:2 Gender. Place and Culture 137 at 143 and 144. See also below n 67 and accompanying text.

42. Delgamuukw v British Columbia 119911 3 WWR 97 at 164.

43. Ibid at 180.

44. Delgumuuk v British Columbia [1997] 3 SCR para 98.

45. S Frosh Psychoanalysis und Psychology: Minding the Gap (London: Macmillan, 1989) p 132.

46. Professor Toni Pickard made the following comment about the career path of a law teacher: ‘Most [law lecturers] share a somewhat peculiar personal history. Unlike most academics we went to law school to prepare for practice, not with any thought of a life in research and the teaching of law. But we have chosen to avoid or abandon the profession we originally planned to enter. We are not living the lives we prepared ourselves for and we are not truly prepared for the lives we live’. (T Pickard ‘Experience as Teacher: Discovering the Politics of Law Teaching’ (1983) 33 U Toronto LJ 279 at 284. See also Barrett, B What Should We Be Learning About Legal Education (1990) 24(1) Law Teach supp 3–15 at –6; and Bright above n 5 at –21Google Scholar.

47. Many universities participate in a voluntary scheme of teacher accreditation developed by the Staff and Educational Development Association (SEDA), a programme that recognises institutional staff development initiatives and accredits teachers upon successful completion of a SEDA-recognised programme. It is important that this professional training does not focus exclusively on vocational issues of teaching (eg how to run a tutorial) but that it includes an examination of how students learn and other ideological concerns.

48. Giroux above n 2 at 80–81.

49. I do not presume that all students want to have all experiences included, examined and dissected. Sometimes people do not want experiences remembered, revived and discussed. It should be up to people to speak about those things that they wish to speak about, if they wish to speak about them, in an environment that is not dismissive, effacing or hostile to them. See text below nn 61, 64 and 67 and accompanying text. Thanks to those who attended my faculty seminar at Lancaster University on 4 May 1999 for helping me clarify my thoughts on this point.

50. Above n 10.

51. Duncan, above n 11 at 3.

52. ‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do’: Blyth v Birmingham Waterworks Co (1856) 11 Exch 781 at 784.

53. O'Donnell and Johnstone, above n 18 at 108.

54. Hull v Brooklands Auto Racing Club [1933] I KB 205 at 224.

55. J Conaghan ‘Tort Law and the Feminist Critique of Reason’ in Bottomley, above n 18 at 52. For further commentary on this, see: R Martin ‘A Feminist View of the Reasonable Man: An Alternative Approach to Liability in Negligence for Personal Injury’ (1994) 23 Anglo-Am LR 334; L Finley ‘A Break in the Silence: Including Women's Issues in a Torts Course’ (1989) 1 Yale J Law and Feminism 41; and L Bender ‘A Lawyer's Primer on Feminist Theory and Tort’ (1988) 38 J Legal Educ 3.

56. See eg N Banks ‘The “Homosexual Panic” Defence in Canadian Criminal Law’ (1997) 1 Crim Rep (5th) 371. See also R Mison ‘Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation’ (1992) 80 Calif LR 133.

57. Criminal Code RSC 1985, c C-46, s 2332).

58. Anne in M Attwood et a1 ‘Define and Empower: Women Students consider Feminist Learning’ (1990) 1 Law and Crit 47 at 47.

59. Other than in reference to decided cases, of course.

60. Women students are sometimes the authors of their own erasure: in my first year Legal Skills class, students were asked to list those qualities they thought necessary for a ‘good’ banister, solicitor, doctor and bank manager. To my astonishment, without exception the students, both female and male, referred to all of these professionals as ‘he’ (‘he should be good at research’, ‘he should be patient and a good listener…’), despite the women students' own (apparent) interest in a legal career and their having a female barrister, solicitor and law lecturer standing with them in the classroom.

61. ‘As a student, I learned virtually nothing that was relevant to me as a lesbian, except insofar as I undertook to do so through my own initiative. With rare exceptions, I was taught the law as though lesbians did not exist. Moreover, the hostile heterosexist environment rendered it difficult for me to learn anything at all’: C Petersen ‘Living Dangerously: Speaking Lesbian, Teaching Law’ (1994) 7 Can J Women and the Law 318 at 319, n 4.

62. By validating their experience I mean acknowledging and accommodating the idea that people interpret information and experiences in a way that is meaningful to them and that this may not represent a common interpretation. Those who are outside the perceived common interpretation often feel neglected or invisible. By directly raising and discussing issues and concerns routinely neglected, lecturers and students give an important public. factual foundation to competing visions of reality.

64. In autobiographical essays, K Reuther and B Sears describe the loneliness, isolation, and especially the pain, fear and discomfort of being out gay men in law school and continually making points and raising issues from a gay perspective: K Reuther ‘Dorothy's friend goes to law school’ (1995) 1:2 Nat'l J Sex Orient L at 252–255 and 257–259; B Sears ‘Queer L’ (1995) 1:2 Nat'l J Sex Orient L at 236, 240–245 and 249–250.

65. P Gilroy There Ain't No Black in the Union Jack: The Cultural Politics of Race and Nation (London: Hutchinson, 1987) p 11.

66. ‘I was apprehensive (at the beginning) about my personal position as the only black woman in the group. My initial worries: would I be marginalised, only called upon to “fill in the gaps” or “tell us your story”…’: Cox above n 58 at 48–49.

67. As a graduate student I once witnessed a critical analysis of culture degenerate into a personal attack on one of the students by another, fuelled by the latter's complete disregard and contempt for the views of the former. This sort of vitriolic learning environment is appalling and likely serves to silence those who might, in a different environment, speak out.

68. As a Canadian teaching in a British law school, my ‘otherness’ is obvious the moment I begin to speak in a decidedly non-British accent. On the basis of this otherness, I am concerned that whatever attempts I make at integrating cross-cultural and experiential perspectives are dismissed by my students on the grounds that I come from another country and culture and therefore my perspectives lack legal relevance in Britain. Ironically, this is exactly the situation 1 am trying to draw their attention to and combat.

69. O'Donnell and Johnstone above n 18 at 17.