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Easteal, P --- "Teaching about the nexus between law and society: from pedagogy to andragogy" [2009] LegEdDig 24; (2009) 17(2) Legal Education Digest 31


Teaching about the nexus between law and society: from pedagogy to andragogy

P Easteal

18 Legal Educ Rev, (2008), pp 163–177

Lawyers need to know the substantive law in order to practise effectively, and much of legal education aims to provide them with that knowledge through ‘black letter’ law teaching. However, effective legal practice also requires an understanding of the societal context in which the law is practised, and such an understanding is not easily imparted by the traditional approach to teaching law. This practice article describes a different pedagogical practice that has been developed to meet that requirement. The key aim is to enable students to fully understand the simple, but nebulous, concept or threshold idea that there is a profound interplay between law and the social and cultural context in which it is practised – that the translation of law into justice is contingent on socio-cultural factors that affect people differentially, so that even the best laws do not ensure universal access to justice. The intention is to use this method to complement the more formal components of the legal education curriculum.

Instead of lecturing on the subject and expecting students to be ‘passive learners’, andragogy involves allowing the students ‘to drive the material and to process it in a problem-solving way’. The focus is on self-direction and a humanist philosophy, and is better suited to querying the ‘Conventional Wisdom of the Dominant Group’ (COWDUNG), which in legal education includes the (alleged) neutrality of key legal constructs such as ‘reasonable’, ‘relevant’ and ‘objective’.

However, there has certainly been recognition in legal education theory over the last few decades that ‘deep’ learning in law, as with any subject matter, does result from a student-centred approach to teaching.

Thus learning in law is not simply the transmission of content or the facilitation of learning ... If we wish to help students become skilled lifelong learners who seek a transformative approach to their learning, then we must model a transformative approach in our teaching. We must set up a learning context in which students may challenge our conceptions and their own: one in which they construct their own knowledge frameworks.

This article describes how Employment Discrimination and the Law, Family Law and Gender and the Australian Legal System classes were designed to be conducive to such active and lifelong learning through enabling the students to challenge their conceptions about law and justice. The principal steps are: (1) creating a learning environment in which students develop the confidence and skills needed to challenge accepted views and norms; (2) ensuring that students are introduced to appropriate levels of formal material; and (3) developing an assessment method that is able to measure the extent to which the students have successfully internalised the threshold idea.

This approach to teaching law necessitates significant changes to the curriculum, subject delivery and assessment. An ‘action-learning’ approach by the lecturer facilitates its development. Action-learning is a dynamic process that includes planning and implementing new classroom activities and assessment, observing the resulting classroom dynamics and the students’ written work, noting both formal university-driven and informal student feedback, reflecting on which approaches were most conducive to independent inquiry (and student epiphany), and recording one’s impressions as a basis for further improvement cycles.

The goal is to make the class an enjoyable and cooperative experience: an ‘active space’ conducive to group work.

Respect is modelled and demonstrated by the teacher, which contributes to creating a supportive social setting. Students need to feel comfortable to explore their own thinking process and to articulate their thoughts.

The idea of pooling expertise is discussed in the first week’s class session in the context of contributing to the individual learning journey. Treating students courteously and as collaborators in learning fosters this classroom culture: student emails are replied to within a few hours, assessments are returned with feedback within a week, and unanswered questions and the need for clarification are followed up by email or via the electronic discussion board as soon as possible after class. A respectful ‘good for the group’ environment is nurtured by the lecturer learning and using students’ names (including nicknames), even in large-sized classes, and engaging in pastoral work out of class. Thus, student participation in class is encouraged in a way that is sensitive to cultural and personal differences. International students are asked if they would like to share how a particular law ‘fits’ within their homeland(s), the relevant professional expertise of class members is called upon, and each student is encouraged to provide input about their own relevant life experiences. Student input is nurtured with follow-up thoughts by email and in subsequent classes, acknowledging student insights that have contributed to the teacher’s own learning.

Social time is included in the three-hour class period, with a roster for students to supply some food for communal consumption.

There is one other ingredient that seems to be essential in creating the relaxed and open type of environment conducive to active learning: humour. Including cartoons and jokes that are relevant to the week’s topic in the formal instruction can be challenging but well worth the effort.

The three-hour class format integrates an entertaining and instructive mixture of formal instruction using visual aids interspersed with two to four ‘buzzes’ (small group discussions during which the students reflect upon and answer one or more questions). This format has evolved over a number of years, and student feedback indicates that such a combination encourages intellectual curiosity, independent learning and critical thinking.

The lecturer’s presentations can serve as a useful template for students to think about the contextual nature, and varied interpretations, of the law. The ‘voices’ of Aborigines, migrants, people with disabilities, victims of violence and ‘others’ are provided through the lecturer’s empirical research findings, thus putting ‘faces to the cases’. These increase the sense of relevance, currency and real-world significance of the issues.

Small group discussions are the ‘flagship’ method of andragogy. A cooperative ethos is generated as students work in teams.

The guiding conceptual basis behind this model is that buzzes, through the careful design of the questions, can facilitate a deeper understanding of a threshold concept and are thus an impetus to thinking.

Cognitive science research has looked at how people learn, identifying that learning is enhanced through methods that lead students to make cognitive, social and experiential neurological connections. Problem-based, inquiry-based, situation-based, research-based and case-based learning, particularly ‘in the context of a compelling problem’, have been found to be most conducive to critical thinking, problem solving and team work.

Buzz questions are constructed to generate such learning and to trigger a variety of cognitive ‘connections’. Through the careful wording of the questions, critical thinking about the nexus between law and society is encouraged. Therefore, question design is critical to the success of the buzz sessions.

The following two buzzes promote the threshold concept since (at least some) students, through the small group discussion, grasp an understanding of the systemic biases operating in legal practice and in academia. Their achievement of this ‘eureka moment’ is evident in their imaginative and creative responses, which could ameliorate the existing socio-cultural and legal barriers in both arenas.

Buzz on Women and the Judiciary: You are working for the Commonwealth Attorney-General and have been asked to draft a protocol and selection criteria for judicial officers in order to produce a more ‘inclusive’ judiciary.

Buzz on Women at Law School: As a consultant hired by a Law School, critique the gender equity status of the School (both staff and student issues). Give a rating, explain and generate 10 suggestions for improving the score.

Class time sometimes includes skits. Or a buzz may involve role-plays like the following:

Buzz on Gender in Family Law: It is the year 2020 — you are old, but gender and society are the same as in 2007. You are a lawyer advising your male client that he can expect a 30:70 property division. There are two children aged two and six who live with Mum. The client becomes upset and threatens you. You go back in your memory to week three of Family Law and explain to him holistically the cultural variables that contribute to his partner needing 70 per cent of the property.

Buzz on New Sections of the Family Law Act (FLA): You’ve done the reading and listened to the information presented today. Imagine a family in which Mum alleges that her ex-partner has been violent. Look at the changes in the FLA relevant to violence (e.g. definition, false allegations, mandatory mediation, shared parenting responsibility, equal time). Describe the changes, name the relevant sections and then give the view of Mum, Dad and the child by composing a comment from each of the three for each change.

Part of the definition of a threshold concept is that it is ‘irreversible’ — once the learner has a eureka moment and sees the world (in this case the relationship between law and society) differently, there is no going back.

Because it is a threshold concept, it is ‘integrative’ and ‘illuminates the underlying inter-relatedness of aspects of the subject’. Thus, a threshold concept, by its very definition and occurrence, evokes further analysis and theoretical examination. I have observed students undergo a transformative experience as their beliefs about the neutrality and objectivity of the law are challenged through this learning process.

The assessment scheme that has emerged after years of trial, error and contemplation is not traditional fare in legal education and challenges students to think critically and creatively about legal issues. There is no examination. Instead, over the semester students submit three learning chronicles, which are based largely upon the weekly buzz query responses.

The formats offered for translating buzz work into chronicles can be crucial in engaging students intellectually and emotionally.

In addition to buzz responses, the first two chronicles require a written piece that cannot exceed 2000 words. Both the substance and the required format of the lengthy pieces are thought-provoking: students are compelled to examine the topic from more than one viewpoint. They are generally given the choice of writing a traditional research essay or a creative option. The latter includes scripts, short stories, ministerial briefs and judgments. The Subject Outline instructs students who are doing ‘creatives’ to make their assignment ‘academic’ by footnoting required reading, additional research and relevant formal instruction material.

Indeed, in all lengthy pieces, mere regurgitation of facts is not an option, as students are required to look at issues from a variety of perspectives.

A new pedagogy requires a new dimension in assessment evaluation because the learning aims are different: ‘Instructors should begin by knowing what they want their students to achieve and how they want students to get there’. The criteria against which the learning chronicles are therefore assessed include evidence that the student has experienced the threshold concept and is able to illustrate that such learning has taken place, as well as evidence that they have understood the theoretical framework enough to apply the concept to other areas or to make suggestions for change that are indicative of such an understanding. Specifically, for students to prove they have met the criteria, they should: write well; demonstrate an understanding of relevant law and cases; demonstrate understanding of relevant theory and other literature; develop a clear and convincing (contextual) holistic presentation; use appropriate illustrations/examples; develop original arguments/offer an original insight; and demonstrate initiative in research.

Without a doubt there are additional costs associated with ‘andragogy’, principally in terms of the individual lecturer’s time and labour. This is despite the time saved in actual face-to-face teaching: the model outlined above uses a three-hour block, regardless of the number of students. There are no tutorials. However, many more than those ‘freed-up’ hours are consumed in added preparation time and in marking.

Action-learning does require extensive thought and an ongoing inner discourse about what has generated student engagement in the past and how it could be improved. Identifying what looked like a great idea at the time but actually ‘fizzled’ and how it could be modified to better engage student interest and enthusiasm, as well as the revamping of all teaching material and buzz questions to include recent legislative changes and/or socio-political debate is all extremely time consuming.

Further, the marking of learning chronicles can be a monumental task. Being faced with a large quantity of assignments, each of which usually exceeds 25 pages, can be daunting, especially given one’s commitment to a speedy return and in-depth qualitative commentary. However, in the midst of ‘marking land’ are oases of joy: buzz answers and/or lengthy pieces that are indicative of an actual cerebral and emotional connection with the material, and of original thought.

The results may be profound. Students develop a sense of the significance of what they are learning, as well as an enhanced commitment to their professional development that goes well beyond the specific content of the classes.

Thus, the skills and confidence that are prerequisites to thinking independently about the connections that exist between law, society and justice can be successfully implemented using less orthodox teaching methods.


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