Legal Education Digest
M T Del Mar
University of Lausanne Working Paper Series, 13 February 2010, pp1-24
Each of our senses – and also the numerous different complexes of them (eg, hearing-touch) – are skills that can be (perhaps infinitely) improved. Each does already, and can ever more (if it is trained), contribute to our understanding; indeed, understanding consists, at least to a large extent, in the intelligence of the senses.
The focus of the paper is on the intelligence of the eyes: on what legal education might be able to gain by taking seriously the richness of images and the ability to see.
A good way in here is to begin with literature. What, we may ask, together with Michael Wood in his excellent Literature and the Taste of Knowledge, does a work of literature know? One of his answers, especially as he describes it by reference to the novels of Henry James, is that it makes it possible, and enjoyable, for the reader to hunt (not to hunt for anything specifically, but to enjoy hunting; the notion of the hunt, and its importance for understanding literature, is also brilliantly taken up by Cave 1988). In other words, there is no story being forced upon us; no representation of the world that we are in a position to evaluate; no set recipes of norms or values; instead, we find ourselves in a space which we cannot help but explore, in which what counts is the exploring – the getting lost, the struggle for sign or symbol, the challenge made to typical associations we may have formed between, say, such-and-such an act and such-and-such an emotion.
Now, what I would like to suggest here is that perhaps we can, indeed perhaps we should, think of images in the same way. There is no inherent nature, or structure, to an image: rather, the image is a space full of potential natures or structures, ie, ways of seeing, lines of discovery, traces of the hunt.
Recall the all-too-well-trodden image of the duck and the rabbit. Think closely here about the experience of coming to see the image ‘as a duck’ or ‘as a rabbit’, when you had only seen one, or perhaps none, before (certainly, my experience with the ‘old-young woman’ image, was initially a haze, a jumble of lines and dots). The moment you see the image as one or the other, or go back and forth between one and the other, is a moment in which you might be said to experience an insight. Again, here, we are reminded of the activity of learning; to learn is to discover; it is to have an experience of insight; one cannot learn without a hunt.
Clark constantly places emphasis on the capacity of symbols and resources (including visual, though perhaps especially linguistic, symbols and resources) to de-complexify our surroundings.
Instead, I wish to stress that we should not confine our understanding of images in this way: let us not think of them solely as scaffolding for reasoning, as resources for cognition, as rails for calculations, where they are seen to be nothing more than a means to performing a task in a certain set, pre-given way (to follow the recipe correctly, say, or to maximise one’s Scrabble score). When we think of them in this way we forget the initial learning experience: the ‘Ah, yes, I see that now’, or the ‘Ah, yes, I see this X as Y now’. This has pernicious effects on teaching, and the use of images in teaching, for we neglect to give our students the experience of struggling to see, of the excitement of finding and discovering a ‘see-that’ or a ‘see-as’. Instead, having already seen it ourselves, we present them with a certain set of ready symbols or resources, which we ask them to acquire (just like that) and which we demand they get better at relying on.
Knowledge, in other words, is not the outcome of learning; rather, learning is part of knowledge. Similarly, we can present teaching as a matter of a means towards passing on such-and-such results (such-and-such symbols or resources, or such-and-such methods), or we can think of teaching as an ambiguous space where persons are enabled to experience judgements, to feel insights.
Knowledge consists in experiencing such judgements, and teaching consists in providing conditions which enable and encourage persons to enjoy such experiences.
Seeing can be a form of looking that is playful and responsive; a form of looking that exhibits an interactive attitude to the environment, and not one of standing above it, dictating terms.
The point here is to stress that knowledge consists in the doing, the performing. Knowledge is dynamic: it consists in the experience of insight acquired in the process of playing.
Based on the above non-instrumental understandings of images and seeing, we now have a firm base with which to proceed to characterise the idea of ‘legal playgrounds’, ie, spaces where certain legal areas, or certain legal issues or problems, or certain cases, can be explored in multisensory ways.
There is, of course, a long tradition of understanding law as a storehouse of narratives, and, to a lesser extent, images or fact-complexes. Accompanying this tradition is work on the practice of analogy in legal reasoning. The two clearly go together, for once you make room for the idea that we can understand the law as, say, a collection of images, then you also open the need for understanding how we link them up (such that the law develops), ie, how we see resemblances or likenesses between them.
Jackson’s approach is to resist an account of the meaning of legal concepts or rules which asks ‘what situations do the words of this rule cover?’ with an account that asks ‘what typical situations do the words of this rule evoke?’ This immediately conjures up the prospect of visualisation, and indeed, Jackson argues that formulating the question in this way signifies looking ‘to the narrative images – of situations within known social contexts – evoked by the words’.
Jackson’s view is instructive, as it also brings us closer to the very practice of analogy. The first is a matter of ‘recognition’; the second a matter of ‘resemblance’.
Samuel argues that contemporary theories of legal knowledge suffer from an overdose of the rule-model in which legal knowledge is said to be knowledge of rules, ‘that is to say, normative propositions capable of being expressed in symbolic language’. Instead, Samuel says, we should pay more attention to non-symbolic forms of knowledge: that is to say, for him, to the historical life of facts and fact-construction.
Let me say it again: resemblances are not there in the images themselves; let us not reduce resemblance to recognition; instead, the resemblances are only there potentially, and it is up to us to experience the judgement in question.
The point here, with respect to legal education, is this: students must be given the opportunity to experience the making of such judgements, ie, of having such experiences as ‘Ah, I see that’, or ‘Ah, I see that as’. What is absolutely vital in legal education is to teach students the excitement of making judgements; to let them experiment and explore the potentiality of images; to assist and encourage them to take risks, be vulnerable – do whatever it is that they feel they need to do in order to experience insight, ie, to see, to respect the richness of images. It is precisely legal playgrounds, as learning spaces, which are designed to create such conditions.
Learning spaces, then, from that perspective, must be understood as, and designed to be as much as possible, inherently ambiguous spaces full of potential for the making of ‘Ah, I see that’ and ‘Ah, I see that as’ judgements. The emphasis has to be on enabling and encouraging the student to make active and creative judgements.
My aim is simply to illustrate how we could approach the study of some aspect of competition law on the basis of ‘thinking with the senses in legal playgrounds’.
One of the biggest issues in competition law is how and when persons can be said to have acted in concert. These tests are not, however, easy to formulate. After all, what exactly does it mean to say a group of subjects (eg, representatives of companies, or the companies themselves) have acted in concert, or were engaged in ‘concerted practice’ (we are to assume here that we need to establish this in the absence of evidence provided by an explicit agreement, eg, a legally enforceable contract)?
The first thing one can do is to recreate the scene, but in keeping with the characterisation of learning spaces above, to leave it unfinished. The point here, as you may well gather by now, is that performing the scene, exploring different versions and options, finishing it in different ways, experiencing the various kinds of emotions and emotional relationships, is going to assist students, in a much more evocative way than simply with an example (and certainly in a much more evocative way than simply with an analytical definition), some of the relevant concepts lying in the vicinity, eg, not only reliance, but also trust, or anger, or frustration, or indignation, and so on.
Now let us consider how legal playgrounds as learning spaces might be used to teach the practice of precedent.
There is nothing, we may say, that is inherently the same: we just take it to be so, and the ‘taking it to be so’ is active and creative, and often difficult. Indeed, it is this range of ‘looking for ways to make decisions’, or simply acting (for that helps us avoid the problematic cognitive overloading associated with decision-making), that we can begin with when teaching the practice of precedent in legal playgrounds.
This can be explored in all kinds of multi-sensory ways. For instance, throw up on a projector an image and ask everyone to reproduce it. When they are done, get them (all simultaneously) to hold their drawing or painting or sculpture or movement up to the rest of the class: this will already show them how differently each of us ‘reproduces the same’.
These experiences will need to be supplemented with – perhaps before and after – by the usual readings of primary and secondary literature. But I wager that those readings will be so much more powerful when they are addressing a group of students who have felt something of what it is like to ‘find’ something to be ‘the same’ or ‘different’, or ‘close enough’, or ‘too far.’
If we neglect the experimental and exploratory aspects of education, there will be hardly anything left of education at all. But the warning might also be said to extend particularly powerfully to law. For too long has the study and understanding of law been isolated from other human practices, and other abilities and skills.