Blay, S; Young, A; Li, G --- "Adventures in Pedagogy: The Trials and Tribulations of Teaching Common Law in China" [2006] LegEdDig 28; (2006) 14(4) Legal Education Digest 14

Adventures in Pedagogy: The Trials and Tribulations of Teaching Common Law in China

S Blay, A Young & G Li

[2006] LegEdDig 28; (2006) 14(4) Legal Education Digest 14

15 Legal Educ Rev 1 & 2, 2005, pp 137–158

In international corporate circles, the general impression is that China is the next economic giant of the 21st century. This perception now seems to apply to universities the world over. The Chinese market, once closed to the world, is now arguably one of the most lucrative opportunities in the global economy. One area that is increasingly drawing international interest is education. The nation has a significant number of excellent world-class universities. However, it is estimated that by 2010 there will be 17 million excess demands for higher education places than the Chinese tertiary educational system cannot meet.

This high demand for overseas tertiary qualifications has been matched by an enthusiastic supply of courses by academic institutions from Australia, New Zealand, the UK and the US. Unfortunately, given the ever tightening budgetary constraints for academic institutions in these countries, the push to meet the demand from China is dictated more by financial considerations than any lofty ideals of the intellectual merits of academic globalisation. The financial imperatives in turn dictate the strategies adopted by the institutions in their effort to meet the demand.

The situation has been exacerbated by the absence of any coherent research that explores the critical issues and the practical problems associated with learning and expected outcomes in an alien cultural context.

In the summer of 2000, the Law Faculty of the University of Technology, Sydney (UTS) introduced a new postgraduate program, which specifically targeted the Chinese market. The course comprised internationally focused subjects based on the university’s 48 credit points system required for the award of a coursework Master’s degree. The development of a Master’s program for the Chinese market in itself was not unique. What was unique about the UTS program, however, was the fact that the coursework program in its entirety was designed to be delivered and assessed by Australian lecturers in Mandarin. This paper is a brief assessment of that program.

The rush for Chinese lawyers to learn about foreign legal systems has led some Chinese universities to introduce courses in Common Law into their curriculum. Many Chinese institutions have also chosen to set up joint programs with universities in the US, UK and Australia. On the other hand, a number of foreign universities now offer their degrees in China via correspondence or intensive mode courses. Against this background, the UTS opted to run an innovative program in Mandarin. The program was delivered in Sydney, Beijing and Shanghai via ‘intensive mode’.

The design of the curriculum was an equally critical part of the process. It was part of the UTS accreditation requirement that any offshore program to be delivered had to meet a ‘relevancy test’. The course had to be relevant to the national and cultural context within which it was to be delivered. The design of the curriculum therefore had to take account of the expertise of the Faculty and the obvious context of China. Thus, the design of the curriculum became a major issue. To achieve the appropriate balance between relevance and expertise, the curriculum had to be negotiated between the UTS course co-ordinators and the Chinese partner institutions.

The only subject that was not international in the strict sense was ‘Principles of Common Law for Civil Law Lawyers’. This subject is primarily an introductory course on the Common Law designed specifically to familiarise graduates from Civil Law jurisdictions with broad aspects of Anglo-American Common Law.

The delivery of the program was to be based on a complete set of relevant ‘course materials’. This presented a complex challenge to the program. Since the course was designed to be delivered in LOTE, it meant that course materials had to be in Chinese. To meet the challenge, there were two options. The first was to translate an entire set of course materials from English into Chinese. Another consideration was that even if one could meet the cost associated with the translation, there was the concern that the essence of the intellectual content of the materials could be depreciated in the course of translation. The second option in trying to meet the challenge regarding course materials was to source relevant readings for the course materials in the Mandarin language with the assistance of reputable academics from China. This was seen as a cheap and effective way of dealing with the problem.

As noted earlier, the entire program was designed for delivery in Mandarin. Australian lecturers on the program thus had to deliver lectures with the aid of interpreters by means of ‘consecutive’ translation or interpretation techniques. This entailed two distinct issues: the delivery time for each lecture session was doubled because the content required repetition in each instance. Second, lectures were delivered by ‘proxy’.

Assessment is a crucial element in any degree program. Assessments for an offshore program provide challenges that need careful appraisal and resolution if the integrity of the program is to be maintained. Since the course was conducted in Mandarin, all written assessments were in Mandarin. The program was presented with two assessment options: the first was to translate all written assignments from Mandarin into English. However, time and resource constraints meant that this was simply not feasible. Another option was to ‘moderate’ the assessment tasks given to students.

To say that the assessment in the course presented the most complex issue is an understatement. To deal with the issue, the Faculty adopted the moderation approach with a mix of all the three options. While it was possible for the program to rely on its tutors to assist in the assessment of some of the subjects, it was evident that for the integrity of the program, there was a need for the input of Chinese academics who could credibly assess the scripts to advise whether the scripts were in fact of appropriate standards, based on a marking scheme provided by the UTS Faculty as a guide.

Law, particularly the Common Law, is very much culture and language specific. Thus to be able to deliver a lecture to a ‘foreign audience’ from a culture with a very different legal system (as in the case of China) through an interpreter, the situation requires a ‘double coincidence of knowledge’ on the part of the interpreter if the lecture is to be meaningful, i.e. that it is not enough for an interpreter to be fluent in English and Mandarin as may be ordinarily required for interpreting conversations in either language. In the case of interpreting a standard lecture on a topic in the Common Law for instance, the interpreter must be conversant with the nature of the Common Law, on the one hand, and the Chinese legal system and thinking on the other hand.

This experience in China easily demonstrates that the issue of double coincidence of knowledge is a critical one and largely determines the credibility and success of a program particularly in law. There were sufficient resources and adequate control over personnel to ensure the quality of translation. However, host country partners had the responsibility of hiring the translators for the lectures once the lectures commenced in China.

In any environment, pedagogy involves the careful construction of a ‘bridge of comprehension’ between the instructor and the instructed or the teacher and the student. Language and context are central in the pedagogy of law. An effective translation, and where necessary interpretation, of the materials presented to the proxy require an understanding of the context in which the cases and issues are discussed in class. More importantly, they require a certain level of proficiency in the social, political and economic context and settings where the cases occur or the issues arise. Therefore, translating from one language into another, calls for a cultural translation or orientation. It is therefore the case that where a lecture is delivered on a subject in the Common Law, it requires the translator, as proxy, to be well acquainted with the Anglo-American culture and socio-economic and political environment to fully understand the essence of the content of the lecture before the onward interpretation or delivery to the student audience. The lack of a proxy’s familiarity with the cultural context in which the cases arise can undermine the quality of the lecture.

In dealing with China, the reality is that, even though the country presents some very excellent opportunities, it is also the case that competition among Western education providers is very intense. Overall, whatever technique is adopted to secure the competitive edge, it is critical for the long-term benefit of the program to ensure that the pedagogical imperative of imparting valuable knowledge and intellectual excellence is not compromised in the pursuit of financial gains. UTS’s experience was that proxy-based pedagogy is inherently problematic and it is certainly not for the fainthearted conservative academic.