Mercer, S et al --- "Teaching dissent in the law school: have students learned to disagree?" [2012] LegEdDig 21; (2012) 20(2) Legal Education Digest 17

• Teaching dissent in the law school: have students learned to disagree?

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Teaching dissent in the law school: have students learned to disagree?

S Mercer, C Rogers and C Sandford-Couch

Liverpool Law Review, Vol 32, No.2, 2011, pp 135-148

Our aims in developing the Trials of Dissenters, a module which was innovative in its content and delivery, included encouraging students to develop the ability to think more creatively and also to engage critically with the subject.

The project took the form of a case study involving the collection of qualitative data. We recorded the workshop discussions and forum presentations of one randomly selected group and those discussions were then transcribed. We also interviewed students at the end of the course. In addition to the questionnaires, interviews and recorded group work we made contemporaneous notes on the sessions which were available to the students on the Electronic Learning Portal/Blackboard site.

By these means we obtained a body of qualitative evidence on student perceptions both of the format of the course and of their engagement with the issues raised by it, in particular the concept of dissent. The data also enabled us to attempt to assess whether the pedagogical innovations we introduced in the module achieved what we had hoped.

We chose nine well known trials and characterised them into four groups: religious, political, scientific and gender dissent. The trials chosen are firstly that of Christ, then in relation to religious dissent the trials of Socrates and of Richard Gott and Denis Lemon; in relation to political dissent the trials of Thomas Paine and Eugene Dennis; in relation to scientific dissent the trials of Galileo and of John Scopes and finally in relation to gender dissent the trials of Anne Boleyn and Oscar Wilde. The choice of these trials raises a number of issues for they range in date from the fifth century BC to the 1950s; they range in location from Palestine and Greece through Italy and the United Kingdom to the United States, and the sources for many of them are scarce, and in many cases are not traditional sources for law students. We were concerned to see whether studying such a disparate batch of trials could help students to better formulate their own views and arguments and to engage with a course where dissent is the norm. Moreover to emphasise the differences from a ‘normal’ course we decided to have neither lectures nor any traditional seminars. We wanted to challenge students intellectually, both in relation to the course content, and in relation to its format.

Thirty two students chose to study the module. We divided these students fairly randomly into four groups, although one group was composed mostly of friends and another of students who had had little previous contact. We wanted the students to work in groups. There is a body of research on cooperative working, much of which provides strong evidence of the cognitive, social and affective benefits of cooperative learning.

In the first session we required the students (in groups), to analyse two articles with which they had been provided and to consider the extent to which they thought, in relation to any trials of which they were aware, that the arguments made were valid.

In this first session we also gave the students extracts from the Biblical accounts of the trials of Christ and asked them both in the session and subsequently to consider how they might structure a discussion of the trials, placing them in their historical context, considering the available sources and any problems associated with them, particularly their dating, provenance and possible bias, and analysing whether Christ could be considered to be a dissenter.

The second session looked at the trials of Christ as an example of religious or political dissent. There were presentations by two lecturers on the historical background to the trials, setting them within the context of the Roman occupation of Judaea and with discussion of the sources available for their study, and the problems with those sources. Finally and most importantly contrasting arguments about Christ and his trials were presented – one arguing that he was tried as a political dissenter; the other that he was a religious dissenter.

It was in the context of this session that we introduced a further innovation: the students were encouraged to consider the portrayal of the trials of Christ in art. In part this was an attempt to enhance their understanding of the legal treatment of religious and political dissenters, but in addition, one of the aims was to try to encourage students to think more creatively, to look beyond the usual sources, which are in any case limited largely to the Biblical accounts. Comparing the visual interpretations of the trials of Christ we hoped would be helpful in making students aware of the need to contextualise their sources.

After being given a brief summary of the contemporary social and political background to the artwork, students were then encouraged to consider what may have led the artist to depict, or his patron to choose to depict, a particular trial, as well as considering what impression they gained of the type of trial and the type of prisoner being depicted. In each case, students were encouraged to discuss the impression they gained from the image of the trial faced by Christ; for example, students looked at how the trial of Christ before Pilate was represented on a fourth century Roman sarcophagus. This was compared with how the same trial was represented in a sixth century illuminated manuscript. Students noted the similarities but also the differences in how the same trial was depicted, and were encouraged to consider why these might have come about. This was then contrasted with an image from 14th century Italy, which shows a different trial, that before the Jewish High Priests. The reasons for the change in trial depicted as well as the image created of that trial were discussed.

The students seemed to engage with what was evidently a new approach, although subsequent interviews with students suggested that they had felt what almost seemed to be ‘culture shock’ at having been asked to consider visual images which the students had not previously addressed or thought of in connection with the study of law.

The pattern for the remainder of the module was a workshop on each pair of trials followed by a forum. We fairly regularly asked students to consider the actual charges brought; the evidence used to support or deny them; the procedure adopted in the courts and the tactics of the prosecution and defence.

In the workshops the student groups had to discuss the material, considering any problems it raised and what further material would be needed to prepare a presentation on one or other or both of the pair of trials. Although each categorisation of dissent involved two trials we clearly explained that our only requirement was that both trials should be looked at. In the forum each student group in turn gave their presentation and there was then discussion on the issues raised.

Dissent is a slippery concept and for at least some of the trials we selected it is arguable whether the individual was a dissenter. Moreover, views of what may constitute dissent and so who may be considered as a dissenter may vary from one age to another, and historians often change their perspectives on what constitutes dissent in an historical era. It was a fundamental part of what we were trying to achieve that the students should examine the provisional definitions of dissent which may be given to historical actors in different periods, and the interpretation which the lawyer, and, ultimately, the historian, will put on constructing what is, or is not dissent.

Three groups looked at the trial of Socrates and one at the trial of Denis Lemon. All members of the groups analysing the Socrates trial participated in the presentations which were very different in their emphases. One concentrated on the categorisation of dissent, relying heavily on the themes identified by Lahav and attempting to fit the trial of Socrates to each of them in turn; another focused on Plato as a source, and considered the political status of men in ancient Athens and the culture of democracy, while the third produced football cards on Socrates’ accusers.

Two groups considered Wilde’s trial, one Anne Boleyn’s and one group compared the two. The presentation on Anne Boleyn suggested that she might have been a religious dissenter but that since the reforms she advocated were later adopted the issue of timing was important. There were significant differences of emphasis between the groups presenting on Wilde alone, with one concentrating on his works and emphasising problems with whether dissent varies over time, while the other looked more at the three trials in sequence. The last group stressed the use of the courts as a mechanism to pursue defendants and wondered whether either Wilde or Anne Boleyn were dissenters.

One group looked at Scopes, the others at both Scopes and Galileo, and one presented only on Galileo. One group argued the case in an adversarial context on the working hypothesis that scientific or religious dissent was a cover up for political dissent in the trials of both Galileo and Scopes, inviting us to vote on this proposition at the end. Another group questioned whether Galileo could be considered a dissenter as his theory was correct, or whether Scopes could as he used a permitted text book and volunteered to be prosecuted. The group looking at Galileo only wondered whether expressing disagreement without having a motive would constitute dissent, and then one member argued that Galileo was a dissenter and another that he was not. The group looking at Scopes considered the long history of conflict between science and religion and the cases subsequent to Scopes.

The final forum looked at the trials of Eugene Dennis and Thomas Paine. One group presented on the Dennis trial and one of the issues that came out of the presentation was the distinction between advocating political change and actionable violence and whether on the criteria adopted in Dennis any members of alternative political groups could be classed as dissenters and subject to sanctions. Another group also considered only the Dennis trial and referred in particular to the American constitutional provisions and particularly to the origins of the United States in a revolt against the British monarchy. By this stage it appeared that students tended to the view that all dissent could be categorised as political in nature.

In relation to the delivery of the module we consider that the student presentations were innovative and creative. It is difficult to know precisely in what ways students might have presented differently, and, indeed, their innovations such as making all participants vote on whether or not individuals were dissenters; making masks for themselves to wear; using other images in their presentations, or staging a prosecution/defence argument are all individualistic responses to the challenge. On the whole, therefore, we felt the presentations went well, although we were concerned that on occasions the length of time taken by their presentations did not allow sufficient time for discussion.

As stated previously we asked the students to complete two questionnaires. In the first, students were asked to consider what they thought dissent was. By far the majority referred to things such as deviation from the norm or from common agreement or from the common or correct view.

We also analysed the responses to our second questionnaire given in the penultimate session of the module, when we asked whether their view of dissent had changed and if so why. Of the 23 who completed the second questionnaire, the views of 11 had changed and of five had not; an additional seven considered that they did not know what dissent was and the course had not provided them with an answer. Arguably, this was a very positive response representing critical engagement with the module.

The second questionnaire asked whether students felt the categorisations we had adopted into religious, scientific, and political dissent and dissent from gender norms were valid. Of those who gave answers, 15 thought they were and three that they were not. Interestingly, however, the reasons given for thinking them not were also advanced by those who thought the distinctions were valid. So, for example, one student thought the categorisations were valid but said ‘depending on how you translate the way they acted many of the trials fitted into more than one category’ and another that ‘some are linked and overlap’. On the other hand a student who thought the categorisations were not valid said ‘you cannot categorise the dissents as all are interlinked’ and another said ‘always is the same: the politic power against individuals’.

Perhaps most interesting are comments from the semi structured interviews we conducted with students at the end of the course. Student 4 said ‘I think dissent is one of the most difficult concepts I have come across to define ... it’s a fluid concept’. She went on to say that after the first session her group did not really talk about what dissent was rather saying ‘dissent every time and we’ll accept that’. Her reason for this gets, we feel, to the heart of the problem – ‘you’re so used to, for the past three and a half years now, you’re so used to having a set definition of something ... but to come across such an undefined term that is used very regularly I think the grip then starts to go from you’.

It seems to us that with this student we have perhaps succeeded in that the course appears to have made her rethink not only her ideas about what dissent is but to go beyond that to question more generally how students receive knowledge.

Perhaps more interesting in light of our desire to encourage more creative or critical thinking is that one student referred to the debates he had participated in class:

This definition of dissent however has caused numerous debates, with some believing that to be considered a dissenter one must ‘go further’ than to differ in opinion, or reject the established doctrine. It has been argued that a mere difference of opinion cannot lead to someone being considered a dissenter, and suggested that a dissenter is someone who ‘goes out of their way’ to teach different principles, or openly subverts the established political or religious elite.

On the whole, however, although the marks obtained, as noted below, were generally high, there was an avoidance of the difficult conceptual idea of dissent and of courting controversy in the presentation of an argument. This would suggest that more work may need to be done to encourage students to think more creatively and critically and to feel sufficiently confident to dissent.

Perhaps for the future we need to be even less prescriptive about what students can do. Perhaps the fact that in relation to the first trials studied we offered little or no analysis of the forensic aspects of the trials discouraged students from doing that themselves. The source material used by the students in their assignments could also be wider, particularly in relation to the actual conceptualising of dissent and perhaps there is scope for us to emphasise that aspect more in the initial sessions.

Our qualitative data analysis would suggest that students studying the Trials of Dissenters have been challenged to think more creatively and, even if to a limited extent, to be prepared to accept the validity of different viewpoints and not to assume that there must be a single solution to legal problems.