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Brennan, D J --- "Teaching Common Law Method and Confucian Heritage Students" [2006] LegEdDig 15; (2006) 14(3) Legal Education Digest 20

Teaching Common Law Method and Confucian Heritage Students

D J Brennan

[2006] LegEdDig 15; (2006) 14(3) Legal Education Digest 20

39 Law Teacher 2, 2005, pp 181–190

The Melbourne Law School, like all comparable schools in Australia, teaches an increasing number of students from Asian cultures. While not synonymous with all Asian cultures, a great proportion of those cultures reflect to varying degrees what has been termed Confucian tradition or Confucian heritage culture (CHC). While research has been undertaken to consider the ‘learning style’ of CHC students, little empirical research can be found on how cultural differences impact upon the way in which a CHC learner relates to any particular course of study in an Anglo-Western cultural context. This essay is, therefore, essentially deductive in its approach.

Australia, as a former English colony, has inherited what is loosely described as the common law system. The whole process is cumulative, and from it free-standing principles of law emerge. It is those principles, the methods by which they are developed, and the way in which they are likely to be deployed in any given situation, which comprise the mainstay of legal education in any Australian Bachelor of Laws course. However, common law method is not straightforward. Judicial decision making usually involves judicial choice in the resolution of cases. This choice, while a key driver in many decisions, is something not always acknowledged by courts within a legal system seeking to uphold the appearance of impartial objectivity in the dispatch of cases, and certainty in the application of rules. As a result, the existence of underlying choice in the nature of common law judicial decision-making is quite obscure and not readily discernible. But it is also key to truly understanding the system of law. It is useful to consider to what extent ‘the judicial choice’ aspect of the common law method is itself a cultural artifact.

This essay, therefore, has three objectives: first, a consideration of the common law method as a phenomenon situated within a particular culture; second, how that method might be the source of inter-cultural misunderstanding in legal education; and, third, what insights this may hold for those involved in teaching common law to CHC students.

A way of thinking about the role of the judge is that it is similar to that of the questioner in a Socratic dialogue. Here the questioning is directed, not at another person, but at the body of law relevant to the case at hand. The difficulty for legal education is that judges rarely come out and actually say this is what they are doing; the ‘Socratic’ moral choice aspect is covert. Instead the formal rules are applied as though the rules themselves compel the particular result. So understood, and recalling that decisions build on decisions to form evolving bodies of law, the common law method is deeply complex, and gives rise to bodies of law that can only be understood by reference to that process.

Teaching common law method is heavygoing. It is not easy even with a cohort of homogenous Australian-based law students with Western cultural sensibilities. A student from a CHC coming at the common law afresh is likely to exhibit a more collectivist outlook on the world. This means the adoption of a social-orientated view whereby maintenance of group wellbeing is assumed to be the best guarantee for the individual’s interests.

In the absence of far greater time being given over to the respective cultural contexts of the common law method and the student, it is likely that the CHC student is left with only a partial grasp of what is going on — no matter how hard he or she tries to obtain a deep understanding of the case. To this extent the CHC student is at a comparative disadvantage to Anglo-Western students in his or her cohort.

On this basis, the issue identified here is separate from the ‘learning style’ of students from CHC — a matter to which a large slice of educational literature since the 1990s has been devoted. The real issue here is acknowledging that differences in cultural contexts between the subject matter taught and that of the learner do matter. It may well be that we are setting some international students an almost impossible task. If this contention is correct, cultural education itself is a possible means by which the problem can be addressed. Cross-cultural law teaching needs to be more explicit about the role of culture in shaping the way humans think. That is to say a particular culture shapes the way of the common law, as it shapes the thought lines of Anglo-Western teachers and as a different culture may shape dissimilar thought lines of CHC students. Only once law teaching addresses the role of culture in this respect, can greater intercultural understanding occur and better learning outcomes be arrived at.

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