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Legal Education Digest

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James, N J --- "The Good Law Teacher: The Propagation of Pedagogicalism in Australian Legal Education" [2005] LegEdDig 33; (2005) 13(4) Legal Education Digest 22

The Good Law Teacher: The Propagation of Pedagogicalism in Australian Legal Education

N J James

[2005] LegEdDig 33; (2005) 13(4) Legal Education Digest 22

[2004] UNSWLawJl 1; 27 U NSW L J 1, 2004, pp 147–169

What makes a law teacher a good law teacher? The answer to that question traditionally depended upon one’s preferred approach to the teaching of law. If one favoured a doctrinal approach — privileging legal doctrine by locating it at the core of the legal curriculum and by emphasising its intellectual rigour, academic value and social importance — the good law teacher was the brilliant legal specialist, the scholar with the international reputation and comprehensive knowledge of the subject matter. If one favoured a vocational approach — prioritising the teaching of legal skills and emphasising the importance of employability as an outcome of legal education — the good law teacher was the lecturer who was also a practitioner and who knew how the law ‘really’ worked. If one favoured a liberal approach — endorsing the liberalising of traditional legal education by emphasising individual freedom, social responsibility and informed rationality — the good law teacher was the teacher who inspired a student’s interest in lifelong learning, in becoming a better citizen, and in seeking social justice. If one favoured a critical or feminist approach — undermining the status quo within the law school and within the legal system by exposing and questioning the undisclosed political positions, gender biases, cultural biases and power relations within legal education and within law — the good law teacher was the passionate critic or the charismatic rebel who inspired insubordination and subversion.

The promotion of this notion of good law teaching is referred to in this paper as ‘pedagogicalism’. Pedagogicalism has successfully influenced discussion about the teaching of law in most Australian law schools. Many law teachers appear to have accepted the idea that good law teaching is about facilitating student learning. Consistent with orthodox education theory, many law teachers claim to have moved away from the traditional approach to teaching involving lectures, tutorials, final examinations and little else, and to have experimented with self-directed learning, flexible delivery, computer-mediated group work and continuous assessment strategies.

Pedagogicalism-as-knowledge is the set of legal education texts produced by law schools and legal education scholars which emphasise the importance of effective teaching and student learning, and which insist that law be taught in a manner consistent with orthodox education scholarship. Orthodox education scholarship generally defines teaching as the facilitation of learning.

Why does pedagogicalism appear to have been propagated so successfully within the discursive field of legal education? This propagation was initially a consequence of the efforts by some legal scholars to encourage an approach to the teaching of law, more liberal than the doctrinal and vocational approaches which had previously dominated Australian legal education.

The recent success of pedagogicalism appears to have been largely contingent upon — and limited to — the consistency of the pedagogical notion of good teaching with the corporatist objectives of efficiency, accountability and marketability. For law school and university decision makers seeking to manage and monitor teaching practices, pedagogicalism and orthodox education theory provide a consistent definition of good teaching and offer a detailed set of criteria by which teaching practices might be judged and compared. University and law school administrators are given a relatively clear and consistent set of benchmarks with which law teachers can be compelled to comply.

Orthodox education theory provides a means by which such improvement might be measured and proven. It is not only pedagogicalism’s consistency and measurability that accord with corporatist objectives; there are specific pedagogical innovations that appeal to the desire to minimise cost and maximise efficiency. The propagation of pedagogicalism-as-knowledge has also been facilitated by the increasing expectation amongst many law students that their legal education be of a standard and quality commensurate with the high fees which they are paying. Pedagogical criteria, again, offer students a means by which the quality of legal education, the effort which law teachers expend upon their teaching and the extent to which they appear to take their teaching responsibilities seriously can be measured and compared. The expectations of students now drive pedagogical innovation and classroom practices, and these expectations are gauged and measured using questionnaires and surveys drafted using pedagogical criteria.

Pedagogicalism creates a distinction between good teaching and poor teaching. Certain teaching practices are good because they qualify as ‘effective’, they focus upon the perspective and well-being of the student, and they facilitate learning. Other teaching practices — usually those practices that are not informed by, or that are inconsistent with, orthodox education theory — are poor because they do not facilitate learning.

This leads to pedagogicalism’s second distinction, that between good teachers and poor teachers. The definition of the good teacher is no longer to be left to individual preference; there is now a correct definition. Those teachers who incorporate orthodox education theory into their teaching philosophy and teaching practice, who focus upon facilitating good learning rather than poor learning, and who appear to care as much about the welfare of their students as they do about legal doctrine, legal theory or the legal profession are good teachers, and are superior to those who are not.

The pedagogical construction of good teaching is one of the factors taken into account in tenure and promotion applications, so that an acceptance of pedagogicalism is to a limited degree rewarded by employment. The poor or deviant teacher is less likely to achieve tenure or be promoted.

Teacher training programs are another strategy deployed by pedagogicalism-as-power. Traditionally it was not necessary for academic lawyers to possess teaching qualifications before being permitted to teach law; legal qualifications were considered sufficient. While it is still possible for a person to be appointed as a law teacher without teaching qualifications, many law schools now oblige new staff to undertake teacher training courses at which these academic lawyers are introduced to, and strongly encouraged to embrace, a pedagogical approach to teaching.

It is no longer acceptable for the quality of law teaching to be judged solely in terms of the personality of the teacher, the intellectual rigour or practical relevance of the subject matter, or the student’s potential to transform society. The good law teacher is now clearly defined as one who facilitates student learning, and every law teacher is expected to care about the student’s well-being, to nurture the student’s learning, and, most importantly, to comply with the range of pedagogical criteria set out in law school teaching policies and student surveys.

Pedagogical discourse may have evolved from the liberal emphasis upon the individuality of the student, but it has become, in many locations, a way for school and university administrators to ensure the accountability of teaching staff, the quality and consistency of teaching practices, and the marketability of the law degree, and the strategies deployed in the achievement of these objectives are often difficult to resist.

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